It is ironic that the house of lady justice — the Supreme Court — has, at present, just one woman judge. No woman has been appointed to the Supreme Court since 2021 even though two chief justices of India have, during this period, underlined the need for women to be represented in this august institution. The argument usually proffered for this imbalance is that judges are appointed by the Collegium keeping in mind the principle of seniority. However, Justice Vipul M. Pancholi, ranked 57th in the all-India high court judges’ seniority list to the Supreme Court, was recently appointed to the highest court by the Collegium by overlooking at least three women judges in terms of seniority. The veteran legal practitioner, Indira Jaising, and the Supreme Court Bar Association have expressed their anguish and disappointment with the Collegium’s decision and highlighted the serious imbalance in the representation of women in the judiciary, especially at the higher levels. The SCBA statement said that of the estimated 1,100 sanctioned posts for high court judges, only 103 are occupied by women. No woman judge has ever been the CJI. In fact, in the last 75 years, the Supreme Court has only had 11 women judges. A study by the Centre for Law and Policy Research also showed that, on average, women judges from the high courts are considered for the Supreme Court at an age later than their male counterparts. This adversely impacts their seniority on the bench which is calculated on the basis of the tenure of judgeship. The argument that seniority should act as a rigid filter is also particularly problematic in the case of women judges because given their disproportionately low numbers in the higher judiciary, few women even reach the senior-most positions in the first place.
The CLPR report pointed out that some of the principal barriers that women lawyers and judges face concern opaque appointment procedures, lack of transparency, the absence of an application process or a national judicial appointment commission. In this instance, one member of the Collegium, the sole woman judge of the Supreme Court, had written a dissenting note regarding Justice Pancholi’s appointment and asked for it to be uploaded on the Supreme Court’s website in line with the court’s recent emphasis on transparency. This is yet to be done. The gap between rhetoric and practice when it comes to India’s courts addressing gender imbalance is glaring. This gap must be bridged and the Collegium’s commitment to principles augmented.