INDIA NEEDS MORE WOMEN JUDGES IN THE SUPREME COURT

Q. Why is gender not institutionalised as a criterion for appointment of judges to the Court?

THE CONTEXT:

• • Historically, only 11 women have been appointed judge to the Supreme Court till date, which is a mere 3.8% of the 287 judges who have been appointed since its inception in 1950.
  • Across the country there are about 1,100 sanctioned posts of High Court judges, out of which nearly 670 are occupied by men and only 103 by women. The share of women judges in the High Courts is only 14.27%.

THE DETAILS OF THE WOMEN SUPREME COURT JUDGES ARE:

1. Justice Fathima Beevi (October 6, 1989-April 29, 1992);

2. Justice Sujata V. Manohar (November 8, 1994-August 27, 1999);

3. Justice Ruma Pal (January 28, 2000-June 2, 2006);

4. Justice Gyan Sudha Mishra (April 30, 2010-April 27, 2014);

5. Justice Ranjana Prakash Desai (September 13, 2011-October 29, 2014);

6. Justice R. Banumathi (August 13, 2014-July 19, 2020);

7. Justice Indu Malhotra (April 27, 2018-March 13, 2021);

8. Justice Indira Banerjee (August 7, 2018-September 23, 2022);

9. Justice Hima Kohli (August 31, 2021-September 1, 2024);

10. Justice Bela M. Trivedi (August 31, 2021-June 9, 2025);

11. Justice B.V. Nagarathna (August 31, 2021-October 29, 2027).

The last appointment of women to the Court was on August 31, 2021 when the Collegium, led by then Chief Justice of India (CJI), N.V. Ramana, appointed three women judges. This was seen as unprecedented because for the first time, that there was more than 10% representation of women in the Court.

There has also been also a total absence of caste diversity among women judges in the Court.

• • Justice Fathima Beevi remains the sole woman judge in the Court from a minority faith.
  • From 1950, nine male judges have been elevated to the Court directly from the Bar. However there has been only one woman till date, Justice Indu Malhotra; no other woman lawyer has been appointed to the Court, despite there being women Senior Advocates in the Court.
  • Women in the Supreme Court are also appointed much later in age. Out of 11 women judges in the Court till date, only five women have been a part of the Supreme Court Collegium, with only three having been involved in appointments to the Court.
  • Justice Indu Malhotra and Justice Fathima Beevi had tenures that were shorter than three years, a fate shared by only five male Court judges historically. The delayed age of appointment for women results in women judges not making it to the Collegium or as Chief Justice of India.
  • The first woman CJI will be Justice Nagarathna, who is scheduled to be appointed for only 36 days (September 24, 2027 to October 29, 2027).

PROCEDURE AND CRITERIA FOR APPOINTMENTS

The manner of appointments is also a matter of concern.

• • According to the Memorandum of Procedure of Supreme Court Judges, the appointment of a Judge of the Court is decided by the CJI, in consultation with a Collegium of the four seniormost Judges of the Court.
  • After receipt of the final recommendation of the CJI, the Union Minister of Law, Justice and Company Affairs will put up the recommendations to the Prime Minister who will advise the President of India in the matter of appointment.

There is no clarity as to on what basis appointments will be made as the criteria are not public.

• • In 2017, the Collegium headed by then CJI Dipak Misra made public some of the resolutions of the Collegium on the Supreme Court website which included reasons for appointments.
  • Reasons for appointments during the tenure of CJI D.Y. Chandrachud were more elaborately stated in the Collegium resolutions.

The Collegiums led by other CJIs were not consistent in providing the reasons for its recommendations. When caste, religion and regional representation are considered as criteria for appointments, why is gender not institutionalised as a criterion for appointment of judges to the Court?

The Supreme Court of India has been a pioneer on gender equality and gender inclusion. It has even directed Bar associations to mandate 30% of elected seats and office bearer posts for women. However, there is no institutionalised mandate for gender representation in the constitutional courts. It is time that this changes.

STEPS TOWARDS EQUALITY

First, the collegium could frame a transparent process and provide clear criteria for appointment. This must include a process for lawyers to express interest in being considered for appointment, such as through applications. There must be clear criteria based on the highest standards of excellence and integrity, and a specified time frame during which the recommendations be made.

Second, there has to be a focus on gender diversity while making appointments. Diversity and merit are not contradictory; rather, in a pluralistic society such as ours, diversity makes the judiciary more representative, thus fostering impartiality and enhancing the moral legitimacy of the institution.

This will mandate the appointment of a competent, independent, and impartial judiciary capable of upholding constitutionalism and the rule of law in the country, through a process that ensures selections solely based on merit and encourages diversity in the range of persons appointed, so as to enhance public confidence in the institution.