Don’t Need Quota, But Ensure Fair Number of Women in Collegium

There is a desperate need to appoint more women judges & for giving them a significant say in judges’ appointment.

Since its inception in 1950, the Supreme Court has had 229 judges, of whom only 6 have been women. At present, there is only one woman judge in the Supreme Court (out of a total strength of 28).

Of the 24 High Courts (whose total strength is 631), 8 have no women judges and in the remaining 16 (whose total strength is 574), we have only 68 women judges.

There is a desperate need to appoint more women judges, not only to redress the glaring gender disparity but also to ensure that women get a significant (if not equal) say in the process of appointment of judges.

Decoding the Collegium System

The present collegium system, put in place by what’s known as the Second Judges case and strengthened by the Third Judges case, is responsible for the appointment of Supreme Court and High Court judges.

For the appointment of Supreme Court judges, the collegium (comprising the Chief Justice of India (CJI) and four senior-most judges of the Supreme Court) recommends the names to the President.

For the appointment of High Court judges, the collegium (comprising the Chief Justice of the concerned High Court and two senior-most judges of that High Court) recommends the names, which are eventually sent to the Supreme Court collegium (comprising the CJI and two senior-most judges of the Supreme Court). For the appointment of Chief Justices of the High Courts, the collegium (comprising the CJI and two senior-most judges of the Supreme Court) recommends the names to the President.

All proposals are initiated by the collegiums and the final recommendations of the SC collegium are binding in all cases. Thus, the judges on the collegiums decide who is appointed as a judge or as Chief Justice of a High Court, or as a judge of the Supreme Court.

Gender Parity Among Judges

The tenure of the judges plays an important role in determining whether they will be on the collegium. The average tenure of all male SC judges (including sitting judges, retired Chief Justices and retired judges) appointed from 1950 is 5.5 years.

In the case of male judges appointed from 1989 (the year when the first woman Judge was appointed), the average tenure comes to 5.2 years. In comparison, two-thirds of the women judges have had tenures shorter than the average tenure for male judges. We still await a woman CJI.

The collegium of five senior-most judges of the Supreme Court, functioning since 1999, has not had more than one woman even once. This is not surprising, since it was only in 2013 that two women sat together on a bench and created a history of sorts, thanks to the non-availability of a (male) judge.

We’ve had only one woman judge on the collegium at a time on three occasions:

• Justice Sujata Manohar (for about two months, after the finalisation of the Memorandum of Procedure dated 30 June 1999, post the Third Judges case. Before that, the SC collegium consisted of the CJI and two senior-most judges. Justice Manohar retired as the fourth senior-most judge).
• Justice Ruma Pal (for two years, from June 2004 till June 2006).
• Justice Ranjana Desai (for about a month).

In due course, Justice Banumathi (the only sitting woman SC judge) will also become a member of the collegium (for eight months). Having been elevated to the Supreme Court at the age of 58, Justice Pal was on the bench the longest among women judges, eventually becoming a collegium member and retiring as the second senior-most judge.

Justice Banumathi, having been elevated around the same age as Justice Pal (59), will be on the bench (and the collegium), the second longest tenure among women judges but will retire as the fifth senior-most judge.

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Appointment of Women Judges

It becomes evident that Justice Ruma Pal has been the only effective woman judge on the collegium so far, and she is one of its most scathing critics.

Though no woman judge was appointed to the Supreme Court during her term on the collegium, a year-wise analysis of appointments of women judges made to different High Courts between 1 June 2001 and 30 June 2011 shows some interesting results.

Including appointments of both permanent and additional judges, 18 women judges were appointed to seven High Courts during Justice Ruma Pal’s tenure (after she became the third senior-most judge till her retirement ie from 17 June 2005 to 2 june 2006). This number is the highest compared to appointments made in each year during that decade (before and after her tenure).

Including appointments of only additional judges and those appointed directly as permanent judges, 11 women judges were appointed to 6 High Courts during her tenure, which is still the highest compared to appointments made in other years during that decade.

It may be noted for a dissent within the collegium to count, it has to come from at least two judges. So for all three times that a woman judge has been a member of the SC collegium, her dissent, if any, has counted only when she has found the support of a brother judge.

Perhaps the presence of more women judges on the collegium may help ensure that the higher judiciary becomes less of an “old boys’ club” and judges who have a feminist mindset are preferred over those who do not.

Need More Women on the Bench

Coming to the High Court collegiums, out of the 16 High Courts that have women judges, only 6 collegiums include women. The Bombay and Madras High Courts have women Chief Justices and the Delhi and Calcutta High Courts have women Acting Chief Justices (as of 14 April 2017 and 1 December 2016, respectively). Only one High Court collegium (Bombay) has a majority of women judges and one other (Sikkim) has an equal representation of women judges.

The picture that emerges is that currently, no woman judge has any role to play in the appointment of Supreme Court judges or Chief Justices of High Courts. Of the 68 women judges in 16 High Courts, only 7 have a role in the appointment of judges in 6 High Courts, viz. initiating the proposal of names.

It is apparent that not only do we need more women on the bench, we need more women to be part of the decision-making process of appointment of judges. To achieve this, we need to have women who will stay on the bench till they become members of the collegiums (also CJIs), alongside women who will not.

Service vs Bar Judges

According to a study by the Vidhi Centre for Legal Policy (VCLP), women HC Judges consist equally of direct bar appointees and judges from the subordinate judiciary.

In contrast, according to an Economic and Political Weekly study, 69 percent of all HC judges, for whom data was available, were appointed from the bar and only 31 percent from the service. Both the studies show that service judges are appointed to the High Court at a later age. The VCLP study shows that the median appointment age for women appointees from the Bar is 48.5 years and for women judges from the service it is 56 years.

The retirement age for High Court Judges and Supreme Court Judges is 62 and 65, respectively. Thus, in effect, only half of the women HC judges (ie bar appointees) are more likely to have an opportunity for further elevation. Given the dismally low ratio of female-to-male judges in the country (1:8), this leaves a very narrow window for women to become senior enough to be on the High Court collegium, which becomes even narrower for being on the Supreme Court collegium.

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Encouraging Young Talent

To remedy this, we need younger (and more) women to be elevated, especially to the Supreme Court, so that they stay in this system long enough to reach a position where they have a substantial voice in the decision-making process, which is predominantly within the male domain today.

Infusion of female voices in the decision-making process will bring in the much-needed diversity and, perhaps, result in the elevation of more capable women, if Justice Ruma Pal’s tenure is anything to go by.

The appointment of women judges ought not to be token or for fulfilling any quota, but simply because they too are equally capable and need to be given their due. If they are worthy enough to be appointed as judges, they are worthy enough to be part of the collegiums.

Elevation of younger women will encourage more women to practise law and be part of the subordinate judiciary, for they will have more to gain from the system.

Also Read: Justice Chelameshwar Has Exposed SC Collegium As Vain, Inefficient

Non-Elevation of Women Judges

Generally speaking, it is not clear why we don’t have more women judges in the Supreme Court. Despite the sanctioned strength of 31, in the recent round of elevations, the SC collegium chose 5 male judges (including one who was not the Chief Justice of any High Court).

Two women Chief Justices (of the Delhi and Bombay High Courts) and a woman Acting CJ (of the Calcutta High Court) were not elevated (despite there being three more vacancies), and the reasons for their non-elevation are not known. One was overlooked during the earlier rounds of elevations as well. This is surprising because this system values seniority immensely.

At a point when we need to encourage more women to join this profession, it is highly disappointing that all the women judges in the High Courts (Chief Justices or otherwise) and the women members of the Bar have been overlooked.

(Sources: One India, The Telegraph, Supreme Court website as on 29.04.2017, Department of Justice website as on 01.04.2017, (1993) SCC 441, (1998) 7 SCC 739 Vidhi Legal Policy, Economic and Political Weekly, The Indian Express)

*With inputs from Alok Prasanna Kumar and Jaidev Deshpande.

(The author is an advocate based in New Delhi. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)