On August 19, 2021, The Daily Guardian had reported that the collegium of the Hon’ble Supreme Court of India, which comprises the incumbent Chief Justice of India (‘CJI’) and four senior-most Judges of the Supreme Court, had issued a resolution (dated August 17, 2021) recommending the elevation of nine individuals to the Supreme Court. Recently, on August 26, 2021, the Union Government was reported to have cleared all these recommendations, which means that the strength of the top court will increase from its present strength of twenty-four (24) to thirty-three (33) judges, one unit short of its full strength, i.e., thirty-four (34).
Amongst the nine recommendations, eight individuals are sitting Judges of the various High Courts in India, whereas one individual, i.e. Senior Advocate and Former Additional Solicitor General, Mr. P.S. Narasimha, is from the Bar. The eight Hon’ble Judges from various High Courts recommended include Hon’ble (Mr.) Justice Abhay S. Oka, Hon’ble (Mr.) Justice C.T. Ravikumar, Hon’ble (Mr.) Justice M.M. Sundaresh, Hon’ble (Ms.) Justice Hima Kohli, Hon’ble (Mr.) Justice Vikram Nath, Hon’ble (Mr.) Justice Jitendra Kumar Maheshwari, Hon’ble (Mrs.) Justice B.V. Nagarthna, and Hon’ble (Ms.) Justice Bela Trivedi. Notably, this the first time that three women judges (Justice Kohli, Justice Nagarthna, and Justice Trivedi) have been recommended for elevation to the Supreme Court in a single collegium resolution.
Yet, there is another significance attached to this resolution. Out of these recommended names, Justice Nath is slated to succeed future CJI, Hon’ble (Mr.) Justice Surya Kant as the next CJI on February 10, 2027. Importantly, since Justice Nagarthna’s elevation has been approved by the Centre, she shall succeed Justice Nath as the next CJI for a period of 36 days between September 24, 2027 to October 29, 2027, becoming the first-ever woman CJI. Justice Nagarthna would later succeeded by Senior Advocate Narsimha as the CJI on October 30, 2027 until his superannuation (retirement) in May 2028. Justice Nagarthna’s elevation is a significant milestone for India, which previously has had women heading the highest offices of the state such as President (Smt. Pratibha Patil) and Prime Minister (Smt. Indira Gandhi); but is yet to see a woman assume charge of the highest post in the judicial branch of the state after having had forty-eight (48) CJIs. The Centre’s approval of the collegium resolution means that we shall indeed see Justice Nagarthna take the mantle of CJI, following the Supreme Court’s seniority norm.
Recently, Justice Ayesha A. Malik, Judge of Pakistan Supreme Court, who was reported to have been recommended as the next Chief Justice of Pakistan, grabbed headlines across the world for becoming the first ever woman to assume the post of the highest judicial office in our neighbouring state. India is not the only major nation-state to never have had a woman officially assume the charge of a nation’s highest judicial branch. Notably, the Supreme Court of the United States of America (‘SCOTUS’) has never had a woman Chief Justice till date.
The necessity of a more proportionate gender representation in India’s Higher Judiciary cannot be overstated. In the Supreme Court, only eight (8) women have ever been elevated to the top court, namely, Justice Fathima Beevi (Retd.), Justice Sujata Vasant Manohar (Retd.), Justice Ruma Pal (Retd.), Justice Gyan Sudha Mishra (Retd.), Justice Ranjana Desai (Retd.), Justice R. Banumathi (Retd.), Justice Indu Malhotra (Retd.), and Justice Indira Banerjee. Collectively, these eight women Judges represent only three-percent (3%) out of the total number of Judges to serve or have ever served at the Supreme Court, which is two-hundred and forty-seven (247) Judges (including twenty-three (23) incumbent Judges). As noted previously by Lawyer-Journalist Shruti Sundar Ray, the situation is not better at High Courts, where out of two-hundred and forty-five (245) judges who were appointed since 2015, only three point three (3.3%) percent are women. After the retirement of Justice Malhotra in March 2021, Justice Banerjee is the only woman judge remaining in the Supreme Court until her superannuation in September 2022. As the recommendations of Justice Kohli, Justice Nagarthna, and Justice Trivedi have all been approved by the Centre, the total number of women to ever have been appointed to the top court will now increase to eleven (11) and India will achieve the milestone of Supreme Court having four (4) incumbent women judges at the same time.
While approval of the three women Judges’ names is a major step-forward, this is still far from India’s aspirations to see greater representation of women in the Higher Judiciary, especially considering the historically disproportionate representation of women judges at the top court. Although, as I have previously noted for The Sunday Guardian (May 16, 2021), the disproportionately low representation of women in senior advocate designations by the Supreme Court is even lesser than the percentage of women judicial appointments to the Higher Judiciary. As stated by Hon’ble (Dr.) Justice D.Y. Chandrachud in his speech during the farewell of Justice Malhotra, “Instrumentally, having a more diverse judiciary ensures that diversity of perspectives is fairly considered, instils a high degree of public confidence.” Indeed, having more women in the judiciary would both serve the purpose of ensuring consideration of diversity of perspectives of women, as well as ensure greater degree of public confidence in India, especially from women. Prof. (Dr.) Keerty Nakray and Advocate Arshiya Chauhan in their scholarly work ([2019] 1 GNLU LSR 119) have argued that, “improvements in women’s representation in the judiciary remain intrinsic to constitutional ideals of gender equality and social justice.” While generally encouraging greater representation of women in the Higher Judiciary, Attorney General of India, Shri. K.K. Venugopal was quoted saying that, “improving the representation of women in the judiciary could go a long way towards a more balanced and empathetic approach in cases involving sexual violence.” Consequently, there is a functional utility of diversity in judicial roles – a diversity, which is brought when there is a greater representation of women judges in the Higher Judiciary.
Various members from the bar and bench have consistently echoed a need for greater representation of women in the Higher Judiciary, as well as the need for India to appoint a women CJI in order to break the glass ceilings that hinder proportionate representation of women in the judiciary. Reportedly, on April 16, 2021, a Three-Judge Bench headed by the Former CJI, Hon’ble (Mr.) Justice S.A. Bobde, had orally remarked that time has come for a woman to be appointed the CJI. CJI Bobde had also reportedly stated that the collegium, “… always had the interest of women in mind and every collegium considers women for appointment as judges in higher judiciary.” His sentiments found support from his colleague, Hon’ble (Mr.) Justice Rohinton Fali Nariman, who reportedly stated that the time for our first woman CJI is not very far off, during his speech at the 26th Justice Sunanda Bhandare Memorial Lecture.
However, there have been few members of the legal community who had previously expressed certain reservations against Justice Nagarthna’s elevation to the Supreme Court by the collegium. Hon’ble (Mr.) Justice Kailash Gambhir (Retd.), who is a Former Judge of the Delhi High Court, had written for the Indian Express (dated April 28, 2021), stating that Justice Nagarthna’s elevation should not lead to supersession of the then thirty-two (32) High Court Judges who are senior to her on the pan-India High Court Judges’ list, only to ensure that there is a woman CJI in future. Justice Kailash Gambhir had also added that, “Supersession itself is perceived as a threat to an independent judiciary. Seniority combined with merit is the sacrosanct criteria for promotion in the judiciary.” I argue that Justice Gambhir’s assertion is flawed as ‘merit’ and ‘representation’ are not a dichotomy. Additionally, as noted previously, there is a functional utility of ‘diversity’ (including representation of women) in judicial roles. Moreover, individuals such as Advocate Lokendra Malik (The Sunday Guardian, March 21, 2021) have rebutted similar criticisms as one made by Justice Gambhir by highlighting that there is no hard and fast seniority convention, particularly after the Third Judges’ Case which created the collegium system.
On a related note to Justice Gambhir’s concern on supersession of Judges, Advocate Jagdeep S. Chhokar, who previously wrote for The Wire (dated February 28, 2021), stated that even if India were to get a woman CJI in 2027, it would be a mere case of “token gender empowerment”, unless other senior High Court Judges, such as Hon’ble (Mr.) Justice Akil A. Qureshi who Advocate Chhokar described as “has an excellent reputation for his integrity and learning” were not recommended for elevation too. However, Advocate Chhokar’s assertion is flawed on two major counts. First, perception of merit vastly varies across members of the bar and the bench, making merit a very subjective notion. No two individuals have an identical perception of merit of any Judge. Consequently, it is irrational to say that Justice Nagarthna’s elevation is “token empowerment”, when it is difficult to truly compare the merits of elevating two different High Court Judges to the Supreme Court – subjective task, which is to be decided by the collegium. Second, it is a fact that Justice Nagarthna (Karnataka High Court) and Justice Qureshi (Gujarat High Court) are from different principal High Courts. Consequently, if they are elevated in future to the Supreme Court, they would be representing different principal High Courts. Given the number of Judges recommended for elevation to the Supreme Court, the collegium would not have considered elevation of one over the other. Contrarily, it is another unanimously recommended candidate, Justice Nath, who shares the same principal High Court as Justice Qureshi. Collegium’s recommendation of Justice Nath over Justice Qureshi is presumably due to the reason that all the Judges found Justice Nath as the better suited candidate for elevation. Moreover, the fact that Justice Nath was slated to be a future CJI (should he have been selected – as has happened after Centre’s clearing of his recommendation), it may have been a factor he was considered over Justice Qureshi (the latter of whom is going to soon retire on March 7, 2022 and would have had a short tenure extending only until March 7, 2025, had he been elevated).
There can be no doubt that the causes which hinder the greater representation of women in the Higher Judiciary needs to be immediately and meticulously addressed. Advocate Vishavjeet Chaudhary, a Cambridge Scholar and UK Barrister (Inner Temple), had previously (Bar & Bench, 2018) noted that, “law has historically been a male-dominated profession.” Speaking about gender representation in legal profession globally, Advocate Chaudhary further added that, “The reasons (or perceived reasons) for this discrepancy are varied and obscure. Law certainly is an onerous profession, demanding, both physically and emotionally. Long, unpredictable working hours and challenging situations are the norm.” Lawyer Sonal, who wrote for Live Law (dated August 15, 2021), highlighted the ‘lack of mentorship and networking opportunities’ as a reason why women advocates were not confident in applying for judgeship.
Reportedly, CJI Bobde had previously remarked that several women lawyers turned down proposals to accept judgeship citing domestic responsibilities. The former CJI was quoted adding that, “Chief Justices of High Courts have told me [him] that there is a problem that when women lawyers are asked for appointment as judges, they often deny it saying that they have domestic responsibility or they have to take care of the studies of their children.” CJI Bobde’s remarks, however, also found subject to scathing criticism from members of the legal community. Responding to disproportionate gender representation at judiciary in light of CJI Bobde’s remarks, Advocate Anandita Pujari was quoted stating that, “Maybe as a transitional measure, the collegium must look at the age bracket for women subjectively. Marriage, maternity are breaks in careers of women lawyers and by the time they have a settled practice some high courts consider them too old for elevation.” Moreover, the Delhi High Court Woman Lawyers’ Forum had criticised CJI Bobde’s remarks, noting that women were ‘ready’ and “more than happy” to take this responsibility and serve the institution. Advocate Veena Gowda noted that there were many male advocates who had refused judgeship owing to their successful practice and greater earnings at advocacy, yet collegium still sought more men and continues to make them judges. Previously, Senior Advocate Indira Jaising was reported to have said that, “No women should be compelled to choose between motherhood and profession”, which highlights the fact that while finalizing on candidates for judicial appointments to the Higher Judiciary, it is necessary for the collegium to consider and pay emphasis on the challenges and obligations that women lawyers face as opposed to male lawyers in the profession, to ensure that greater women are selected for and take up judgeship. Consequently, while CJI Bobde’s remarks may be true and would have made in good spirits, his assertion is flawed and repositions even working women to the domestic sphere.
In her retirement speech, Justice Indu Malhotra stated that, “There will be enough women in the judiciary when the distinction between male and female judges no longer exists. This will happen when more women actively practise and are elevated to the bench on the basis of competence and merit.” Justice Malhotra further added that meritless tokenism would only lead to symbolic parity and not lead to meaningful gender parity. While Justice Malhotra’s statement was said in a positive spirit, I most respectfully argue that overemphasis on meritocracy by collegium would potentially pose two problems. First, comparative disadvantage of women judges and lawyers in elevation as opposed to male members of the legal community, which emerges due to inherent bias, as well as lack of appreciation of the challenges and obligations that women lawyers face in their personal and professional lives. Second, it would risk women representation at Higher Judiciary being dominated by second-generation and multi-generation women from legal community as opposed to first-generation women lawyers or judges who face multiple-barriers, including lack of a strong pre-established socio-economic status, hurdles of favouritism, financial barriers, and other circumstances that make it difficult for them to stay and thrive in the legal profession, furthering gap between various classes of women.
Concerns have also been raised by members of the legal community about the inherent gender bias in judicial appointments by the collegium. Former Supreme Court Judge, Hon’ble (Mr.) Justice Arjan Kumar Sikri (Retd.) had previously remarked that the non-elevation of Hon’ble (Ms.) Justice Gita Mittal, Former Chief Justice of the Jammu and Kashmir High Court, was an example of the collegium system’s failure, hinting at the gender-bias leading to disproportionate representation of women at the Supreme Court, in a public lecture co-organized by Cornell University and Jindal Global Law School. Moreover, in her reputed scholarly work, Lawyer and Public Policy Expert, Ms. Aishwarya Chouhan ([2020] 20(3) Georgetown Journal of Gender and the Law 725), had highlighted that there are two forms of gender bias, ‘structural’ and ‘discretionary’, which have consistently impacted the gender representation at Higher Judiciary negatively. In her research, Chouhan noted that as per anonymous interviewees, there exists a public perception that an all-male collegium does not select female judges while a female dominant collegium would. As per a 2013 survey by Professor (Dr.) Latika Vashisht, “male dominant collegium” (i.e., a collegium with an absolute or high percentage of male judges), have been a contributing factor in the decreasing appointment of women to the higher judiciary. Even members of legal community abroad, such as Justice Sabrina McKenna of Hawaii Supreme Court have raised concerns on gender representation in Indian judiciary. Justice McKenna was quoted by Economic Times (dated April 7, 2019) stating that, “There is bias against women in India in terms of judicial leadership, although people here don’t seem to realise their bias.” In this vein, the historical state of gender representation in judicial appointments to the Higher Judiciary since 1950s, could be also perceived as following the principle ‘of the men, by the men, for the men’ – a perception that recently various Judges of the Supreme Court through their remarks (most notably Justice Sikri, Justice Bobde, Justice Nariman and Justice Chandrachud), have recognized must be done away with.
Perhaps, it is time that the Parliament should consider mandating a minimum number of representation for women in the Higher Judiciary (i.e. the Supreme Court and various High Courts) by passing a constitutional amendment, with inclusion of a commencement clause requiring the minimum representation of women to be met by the collegium within a certain reasonable timeframe such as five-years. This would ensure that the collegium has sufficient time to recommend the best women candidates to be elevated in a timely and efficient manner to increase the representation of women in Higher Judiciary. Lawyer and Public Policy Researcher, Sumathi Chandrasekhan along others in their scholarly work ([2020] 55(4) EPW) mentioned the positive impact of women reservations for subordinate judiciary, stating that, “Reservation quota for women is perhaps just one among many factors that encourages and facilitates more women to enter the system. In states where other supporting factors are present in sufficient measure, women’s quotas perhaps help bridge the gap in gender representation.” In a similar vein, reservations for women in judicial appointments at the Supreme Court and various High Courts would, without any doubt whatsoever, significantly lessen the disproportionate representation of women. Moreover, if another constitutional amendment is passed to include lawyers who are not practicing as advocates such as law academics, legal public policy experts and corporate lawyers under the eligible classes of individuals who could be elevated to High Courts or the Supreme Court (upon further fulfilling certain criterion based on merit and subject-matter knowledge to be decided by the Parliament), women representation in Higher Judiciary is likely to increase, since many women lawyers choose such alternative legal careers instead of advocacy as they may offer greater financial stability and independence.
The above suggestions in favour of making constitutional amendments could be perceived by the Judicial Branch as a move affecting judicial independence and separation of powers.
Please read concluding on thedailyguardian.com
However, Supreme Court could also itself take a suo-motu case or a public interest litigation by concerned members of the bar, where it could highlight or direct appropriate measures, including women reservations, to lessen the disproportionate women representation in the Higher Judiciary. This reform from the Supreme Court is especially needed since the Constitutional Bench Judgments which judicially established and upheld the constitutionality of the Supreme Court’s collegium (as well as gave collegium the final say on judicial appointments to Higher Judiciary in case of unanimous recommendations), did not explicitly or implicitly mandate the collegium to look at proportionate gender representation while making judicial appointments. There is no doubt that this is a contributing factor to disproportionate gender representation at the Higher Judiciary.
Irrespective of whether it is the Parliament or the Supreme Court itself which takes the lead to address disproportionate representation of women in the Higher Judiciary, there is no doubt that drastic reforms are needed to shatter the glass ceilings. It is my hope that members of the Bar, Bench, Academia, Public Policy Research, as well as others, including common citizens gather together to further greater representation of women at the Higher Judiciary. Since, Justice Kohli, Justice Nagarthna, and Justice Trivedi’s recommendations by the collegium have been all cleared by the Centre, India has indeed come forward with two milestones: First, having four women serve as Judges of the Supreme Court at the same time; and Second, Justice Nagarthna’s elevation meaning that we will have a woman CJI for the first time in 2027. While concluding my thoughts, I would like to acknowledge and thank JGLS Students, Mr. Rishav Sen and Mr. Abhijeet Shrivastava for their valuable inputs and feedback.