Authored by Rajyavardhan Singh, 1st year law student at Rajiv Gandhi National University of Law, Punjab
Background
The Supreme Court of India has only seen a mere 11 women, out of the 273 judges that have been appointed throughout its history. Moreover, it was not until 39 years after the institution of the apex court that Justice M. Fathima Beevi became the first woman to be appointed as a judge in October of 1989. Similar has been the situation at the High Courts, wherein today (as of November 2023) out of a total 773 sitting judges, only a stark 103 (13%) are women.
The statistics of both courts, raise grave concerns about the diversity and inclusivity of the Indian higher judiciary – as it reflects a historical trend of gender imbalance and underrepresentation of women in the bench.
Women’s Inclusion
In a nation where marital rape is still constitutionally sanctioned; it is in this socio-political context that achieving gender parity becomes all the more important as is it not just limits itself to a matter concerning equal opportunity but much rather acts as a crucial stride towards a judiciary that is more reflective of the diverse perspectives and experiences within the very society it serves..
The Indian higher judiciary, which essentially serves as the gatekeeper for upholding the principles of equality and justice should be emblematic of a gender-equal and diverse institution. Therefore, having a balanced representation of women within the judiciary becomes crucial in fostering a more equal system and promoting modernization and reform. Moreover, the progressive inclusion of women on the bench can perhaps bring about different perspectives to the law, incorporating insight from their unique and personal experiences.
Furthermore, having a well-proportioned number of women judges shall only enhance the quality of justice delivery, especially in cases related to the issues exclusive to women – as they might bring to the table a more nuanced approach and a better understanding of matters that primarily only concern women. This, in turn, could perhaps also make it more accessible for those women in society who otherwise are apprehensive in approaching the courts to seek justice.
The Necessity for Women Reservations
While there is a school of thought that subscribes to the idea that the increasing enrollment of women in national law schools and their growing presence in the lower judiciary will naturally lead to higher judicial roles over time, it fails to consider the transparent and merit-based system of entrance examinations conducted for these respective institutions (the CLAT and Judicial Service Examinations). In contrast, a crucial distinction arises when scrutinizing the highly opaque collegium system responsible for judge appointments to the higher judiciary. The lack of transparency raises concerns about potential biases, as its non-adherence to standardized entry criteria may inadvertently perpetuate the imbalance in gender representation.
Therefore, to rectify this disparity and ensure a consistent and equitable representation of women in the Supreme Court and High Courts, embracing the principle of affirmative action, and particularly the implementation of reservations becomes paramount. Such measures are not merely corrective but proactive steps towards addressing gender imbalances and, in turn - enhancing the overall quality and legitimacy of the higher judiciary.
What is Affirmative Action?
Affirmative action is a principle which comprises of a range of policies and practices implemented by governments or organizations with the aim of boosting the representation of specific groups, including those defined by gender, race, sexuality, etc., wherein they have been underrepresented, such as education and employment.
The primary objective of affirmative action programs are to promote fairness and mitigate the consequences of historical discrimination in employment. This is achieved through targeted outreach efforts designed to encourage increased representation of underrepresented groups in various sectors.
Constitutional Validity of Reservations in Higher Judiciary
Article 16 lays the general principle of equal opportunity for appointments under the State, emphasizing that no citizen shall face discrimination or ineligibility for any employment or office under the State based solely on grounds of their religion, race, caste, sex, descent, place of birth, or residence. Additionally, Clause (4) of the Article introduces provisions for affirmative actions such as reservations, allowing the government to implement such measures when it is satisfied based on quantifiable data, that certain backward classes are inadequately represented.
Moreover, considering that the Legislature and Executive are already subjected to reservations – it becomes only fair and logical to extend this policy to the Judiciary, being the third pillar of democracy. The Supreme Court and High Courts shall be treated on par with the “state”, defined as per Article 12 of the Constitution. This contention is further supported by the landmark Kesavananda Bharati judgment, wherein Hon’ble Justice Mathew, on page 80 has categorically affirmed that the Judiciary is an integral part of the State.
The definition of the word “State” both for the purpose of Part III and Part IV is the same. Whereas Article 45 of the Irish Constitution addresses the directive only for the guidance of the Oireachtas i.e. the Legislature, all the directives from Articles 38 to 51 of our Constitution are addressed to the “State” as defined in Article 12. That judicial process is also “State Action” seems to be clear. Article 20(2) which provides that no person shall be prosecuted and punished for the same offence more than once is generally violated by the judiciary and a writ under Article 32 should lie to quash the order. In his dissenting judgment in Naresh v. State of Maharashtra [AIR 1967 SC 1 : (1966) 3 SCR 744] Hidayatullah, J., took the view — I think rightly — that the judiciary is also “State” within the definition of the word “State” in Article 12 of the Constitution. [ See also Shelley v. Kraemer, 334 US 1 (1948); Budhan v. State of Bihar (1955) 1 SCR 1045 : 1955 SCJ 163 : 1955 Cri LJ 374].
Further, backed by quantifiable data, the persistent historical underrepresentation of women in the higher judiciary naturally makes the call for corrective measures even more compelling. In response to this imperative, the crafting of a firm reservation policy for the appointment of judicial officers in both the Supreme Court and High Courts — essentially designed to rectify the observed gender-disparities – seamlessly aligns with the overarching framework of the constitution.
Conclusion
To conclude, beyond just a simple call for diversity, the gender gap in the Supreme Court and High Courts signifies a profound demand for change in the very foundations of our judiciary. Advocating for affirmative action, including the implementation of reservations, emerges as a pivotal step in dismantling the prevailing power structures.
In this light, reservations for women in the higher judiciary, guided by the principle of affirmative action, becomes a strategic imperative to break free from the inertia of the established status quo. It introduces a 're-rupture' within our legal discourse. Embracing a more balanced representation in the judiciary, transcending beyond being merely a corrective measure, becomes a profound, transformative act that reshapes the very essence of our system.