Delhi HC criticises the Center's rule prohibiting married people from seeking for JAG positions in the Indian Army, saying it "doesn't make any logic."

  • Dec. 8, 2022, 12:38 p.m.

The Delhi High Court on Wednesday asked the Centre to explain why married men and women cannot be considered for the Judge Advocate General (JAG) department, the legal arm of the army, and remarked that the policy barring married individuals from applying "does not make any sense."

The high court said there was no correlation between marriage and training of candidates selected for Short Service Commission in the Indian Army for entry into JAG department and asked the Centre to file an affidavit explaining the policy.

A bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad was hearing a plea challenging the restriction on married individuals from being considered for the JAG department.

"What is the rationale of marriage and eligibility?" Put it on an affidavit that a person trained in arms cannot be married. "Put the policy on record because marriage and training can have no correlation," Justice Prasad said.

The post of Judge Advocate General is held by a major general, who is the legal and judicial chief of the Army. The JAG is assisted by a separate JAG branch, which consists of legally qualified Army officials.

When Additional Solicitor General Chetan Sharma, representing the Center, asserted that marriage and training have a correlation as the selected candidates have to undergo rigorous training, the bench asked him to file an affidavit explaining the position.

"It does not make any sense." The question is, "If a person is married and goes for arms training, how is that going to affect his training?" the court said.

The court said such a policy needed to be tested.

The bench also asked the government to inform it whether its policy related to the entry of married and unmarried individuals is uniform or if it differs from course to course.

"You might not have your spouse with you at that time, but how does your marriage come into play?" the court wondered.

The ASG also clarified that the bar on marriage is only for entry into the 11-month-long training period.

The court granted the government four weeks to file an additional affidavit regarding the policy of entry into the Indian Army and listed the matter for further hearing on March 22, 2023.

The PIL was filed by advocate Kush Kalra, who termed as "institutionalised discrimination" the restriction on married individuals being considered for JAG.

Advocate Charu Wali Khanna, appearing for the petitioner, said as per the advertisement, the eligible age to apply for JAG is 21 to 27 years, and 50 percent of women in India get married before the age of 21 years. Since they also had aspirations, why should they be penalised for their parents’ act of marrying them off at an early age?

The Center, in its earlier affidavit filed in March 2019, had said the right to marry cannot be a right to life under the Constitution and there was no discrimination on the basis of the marital status of the candidates.

The authorities have sought the dismissal of the PIL, saying the Constitution does not stipulate the right to marry as a fundamental right.

It has been said that, until 2017, married women were not eligible for recruitment in the JAG department, while there was no such restriction on married men.

This policy was challenged by Kalra in 2016 for being discriminatory to female candidates. During the pendency of the petition, the government issued a corrigendum on August 14, 2017 amending the marital criterion, according to which now, just like their female counterparts, only unmarried men were to be considered eligible for various entry schemes of the Army, including the JAG department.

After the new rule was announced, Kalra withdrew his earlier petition and filed a fresh one challenging the discrimination against married individuals and saying the corrigendum curtailed civilians’ rights to marry after attaining the legal age.

The Center’s affidavit said there was no violation of Article 14 (equality before the law) of the Constitution as the recruitment conditions as to marital status are uniformly applied not only for JAG entry but the entire Army, wherein only unmarried individuals are eligible to be commissioned in all streams.

The Center and the Army have also drawn an analogy between the eligibility conditions, which are challenged in the plea, and the legal age of marriage in India under the provisions of the Prohibition of Child Marriage Act read with the Hindu Marriage Act.

It has been said that a female is legally permitted to marry at the age of 18 whereas a male, despite being eligible to vote at the age of 18, is legally permitted to marry only at the age of 21.

"The condition of being unmarried for both male and female candidates aged between 21-27 years for grant of commission is restricted only for the period of recruitment and pre-commission training which involves a high amount of physical and mental stress, strain and rigours of military life.

"Once the unmarried lady cadets and gentleman cadets complete their training and are granted commissions, there is no bar for getting married or its natural consequences, viz., pregnancy, etc., or for service benefits, viz., maternity leave, child care leave, paternity leave, married accommodation, etc. "There is no discrimination on the ground of marital status," it has said.

The court had earlier issued notice to the Ministry of Defense and the Directorate General of Recruiting of the Indian Army, seeking their stand on the PIL.

The petition has questioned the basis for barring married persons from joining JAG when marital status is not an eligibility criteria for the "equally ranked" judicial and Indian Civil Services positions.

JAG is the legal advisor to the Chief of the Army Staff in matters of military, martial, and international law, the plea has said.

It has sought that the special Army instructions of 1992 and 2017—which disentitle married women and men from applying for JAG—be declared void.

Author : Rajdhani Delhi Representative

Rajdhani delhi representative

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