Closing the gender gap in the higher judiciary

The then Chief Justice of India, N.V. Ramana, with Justice B.V. Nagarathna at the Supreme Court in New Delhi.
| Photo Credit: ANI

Women in law have seen great progress over the last 100 years in India. The first woman lawyer, Cornelia Sorabji, was entitled to practice in 1924. Since then, the number of women lawyers has increased, several women have been designated Senior Advocates, and there have been many women judges in the lower judiciary.

Inequality at the top

However, there remains a glass ceiling for women in the higher judiciary. The share of women judges in the High Courts is only 14.27% (109 out of 764). In eight High Courts, the number of woman judges is limited to just one. The High Courts of Uttarakhand, Meghalaya, and Tripura have no woman judge. The Allahabad High Court, which is the largest High Court in the country with 79 judges at present, has only three women judges (2%). Not only is there a disproportionately low number of women judges in the High Courts, but they are also appointed later than men. The average age of appointment of men is 51.8 years, but for women it is 53 years. Thus, women judges do not reach positions of seniority. Out of 25 High Courts, only the Gujarat High Court has a woman Chief Justice.

The numbers for the Supreme Court are much worse, with only two women judges serving at present — Justice B.V. Nagarathna and Justice Bela Trivedi. With Justice Bela Trivedi due to retire in June 2025, the top Court will be left with just one woman judge. The last woman judge appointed to the Supreme Court was in 2021. Since then, 28 judges have been appointed to the Supreme Court, and not a single of them is a woman. Over the last 75 years, the Supreme Court has elevated nine men from the Bar directly to the Supreme Court, but only one woman has been elevated directly from the Bar to the Court.

Many justifications are given for not appointing women. It is said that there are not enough eligible women candidates, not enough women with seniority, or that women do not want to become judges. All of this is merely top dressing, when the underlying factor is one of deep inequality, to borrow the analogy of Dr. B.R. Ambedkar. One of the main causes for the exclusion of women from the higher judiciary is deep-rooted and systemic inequality, where women are seen as inferior within the legal profession. Women lawyers nominated for judgeship face heightened scrutiny. Far from compromising on merit, women are almost always required to prove merit more than men.

We also have the collegium system of appointments, which is opaque and non-transparent. There are no clearly stated criteria for eligibility or merit and there is no transparency in the process. This also works against women. The collegiums almost always comprise men and little or no effort is taken to get names of meritorious women lawyers for elevation. This is not the only hurdle. Even when names of women are recommended by the collegium, women are disproportionately not confirmed by the government. Since 2020, nine women’s names were recommended by the collegium for appointment to the High Courts, but were not confirmed. Of these, five were the only names to be rejected.

This year, as we celebrate International Women’s Day and 75 years of the Supreme Court, we need a transformation of our courts. Constitutional courts have to be gender equal in the true sense, where women are working, serving and leading in equal measure, especially on the Bench.

Steps towards equality

Women’s representation in the judiciary is key to ensuring that courts represent their citizens and hand down sound judgments. Having an equal number of women on the Bench will enhance the legitimacy of courts and give a signal that our judiciary is inclusive and representative of the people whose lives they affect.

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. There is, at present, a clear consideration of State-wise representation of judges, as well as of caste and religion. Gender diversity also needs to be taken into account to ensure that at least one-third of our higher judiciary, if not half, is composed of women.

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. Most importantly, gender balance needs to be a stated objective of the judiciary in making appointments.

Justice Indira Banerjee, a former judge of the Supreme Court, famously said in one of her interviews that she did not want any fanfare when she was appointed just because she was a woman. We have to ensure that women’s appointments to the Supreme Court and High Courts are so normalised that it does not seem out of the ordinary at all.

Jayna Kothari, Senior Advocate, Supreme Court of India