Jayna Kothari & Mathew Idiculla*
Introduction
On November 10, 2024, Justice DY Chandrachud retired from the Supreme Court after completing two years as Chief Justice of India ('CJI') and over eight years as a judge of the Supreme Court of India. As one of the longest-serving CJIs of the recent past, he had a significant impact on the Supreme Court in multiple ways. One of the most critical roles played by the Chief Justice is recommending judges to the Supreme Court and High Courts as the head of the Collegium. While there has been a lot of commentary on his role as a judge in crucial constitutional cases, his role as the head of the Collegium has not been analysed substantively. This piece seeks to examine the appointments made by the Chandrachud-led collegium, especially in the context of decreasing the gender gap, to assess his contributions as the Chief Justice of India towards achieving a more gender-representative and inclusive judiciary.
The Resolutions of the Collegium
Appointments to the Supreme Court and High Courts in India are governed by the collegium system, one that the judiciary has designed for itself through its judgments. The present collegium system emerged after what is called the Second Judges Case of 1993. In this case, the judiciary asserted its primacy in the appointments process in response to perceived abuses of executive power in appointing judges by interpreting “consultation” with the Chief Justice to mean “concurrence” with the Chief Justice. Under the present system for appointments to the Supreme Court, the Collegium comprises the Chief Justice and the four senior-most judges of the Supreme Court; for appointment to the High Court, the Collegium consists of the Chief Justice and the two senior-most judges of the High Court.
The judicial appointments made by the Chandrachud-led Collegium become an interesting point of analysis, especially in the context of gender equality. In this piece, we seek to analyse the extent to which he was able to get more women in the higher judiciary. The Supreme Court started publishing all resolutions of the Collegium since October 2017 on the Supreme Court’s website. This is an important step forward for more transparency on the Collegium’s decisions. However, these resolutions only disclose post-decision reasoning, as to what the reasons for selecting or rejecting a candidate were. What is noticeable is that under Chandrachud’s tenure, the resolutions have been more detailed - explaining the rationale behind the nomination, including their income, background, and gender.
Appointment by Numbers
The influence of Chandrachud over the composition of the Supreme Court and the High Courts has been significant. In this section, we will discuss his appointments by numbers to the Supreme Court and to the High Courts. We draw from the detailed data-based analysis undertaken by Supreme Court Observer on judicial appointments under Chandrachud’s tenure as CJI.
Supreme Court Appointments
In the two-year tenure of Chandrachud as Chief Justice, the Collegium led by him recommended the following number of judges to the Supreme Court:
| Total number recommended | No. of Women out of these total numbers recommended | No. appointed | How many women appointed |
No. of Judges recommended to the Supreme Court | 17 | 0 | 17 | 0 |
As we can see from the table above, as Chief Justice and head of the Collegium, Justice Chandrachud recommended the appointment of a whopping seventeen judges to the Supreme Court, which is half the strength of the Court of thirty four judges. There was not a single woman in this list of recommended names for the Supreme Court. During his tenure, out of the three women in the Supreme Court, Justice Hima Kohli retired in August 2024. Knowing that she would be retiring, the Collegium ought to have been vigilant and should have taken steps to appoint women to atleast ensure that the number of women in the Supreme Court does not reduce.
While Justice Chandrachud attributed the absence of women appointed to the Supreme Court to a lack of senior women judges in the High Courts, the Collegium has in many cases overlooked the seniority rule as it sought to ensure regional and religious representation. In any case, seniority would also not come in the way of appointment of women from the Bar directly to the top court. The first and only woman from the Bar appointed to the Supreme court was Justice Indu Malhotra in April 2018, and none after her.
Appointments to the High Court
For the appointments to the various High Courts, the Chandrachud-led Collegium recommended the following numbers of judges:
| Total number recommended | No. of Women out of these total numbers recommended | No. appointed | How many women appointed | No. of women not confirmed by the Government |
No. of Judges recommended to the High Courts | 168 | 27 | 142 | 22 | 5 |
For High Court appointments, the Collegium led by DYC recommended 168 names for appointment. Out of these, only 27 were names of women, which is only 16% of the total recommendations. The number of women ultimately appointed out of the 142 judges whose names were confirmed was 22 or 15.49%. Out of the 27 women whose names were recommended, 14 were from the bar and 13 were from the bench; Of the 22 women who were finally appointed to High Courts, 11 were directly elevated from the Bar and 11 were elevated from the district judiciary. This split is similar to the ratio of total appointments to the High Courts, with 69 elevated directly from the Bar and 73 elevated from the bench.
Thus, we can see that the number of women’s names that were even sent for recommendation was a paltry 16% and there was no attempt to increase this number by appointing women from the bar. While the names for recommendation come to the Supreme Court from the High Court collegium, if the Supreme Court is serious about gender equality within the higher judiciary, then it clearly has to ensure that High Courts recommend more names for appointment. If we aim to have at least 30% of women in the higher judiciary, then at least 30-35% of names recommended must be of women candidates for appointment.
Chief Justice Appointments
The Collegium recommended 47 names to be Chief Justices of various High Courts. Of these only four were women, which is less than even 10%. Out of the 47 names that the Collegium recommended as Chief Justices of various High Courts, the Union appointed only 41. There were 4 women appointed as Chief Justices of High Courts: 2 in Gujarat, 1 in Himachal Pradesh, and 1 in Uttarakhand. Presently however there is only 1 sitting woman Chief Justice of any High Court - Justice Sunita Agarwal, Chief Justice of the Gujarat High Court.
So Where Does it Leave the Women?
An analysis of the 17 resolutions of the collegium for Supreme Court appointments reveals that in many of them the collegium mentioned five broad parameters for consideration of recommendation: The seniority of the judges; merit as demonstrated by the judgments and performance of the judges; integrity; the need to ensure diversity in terms of region, gender and community; and the need for inclusion of marginalised and backward segments of the community. Thus, while caste and region were factors taken into consideration, gender, though mentioned as one of the criteria, was clearly not taken into consideration for appointments to the Supreme Court.
Indeed, since the appointment of three women judges to the Supreme Court in August 2021, there have been no woman recommended or appointed to the Supreme Court. This is a serious concern. For Justice Chandrachud’s Collegium not to have recommended a single woman to the Supreme Court for 3 years, despite appointing more than half the Supreme Court of 17 judges, is unjustifiable. Further, among these 17 individuals recommended by the Collegium for elevation, only Senior Advocate K.V. Viswanathan was elevated from the Bar. Here, we just remember that it is not the Chief Justice alone who decides, but the entire Collegium of the five senior most judges of the Supreme Court, and therefore it is the entire collegium that must carry the blame for not appointing any women in three full years in the Supreme Court.
In case of appointments to the High Court, the analysis by the Supreme Court Observer also finds that out of the names recommended by the Collegium, the only two individuals (out of 7) in Gauhati High Court and the only one (out of 16) in Kerala High Court, whose names were not cleared by the government were women candidates. This shows that even when women’s names are recommended and sent by the Supreme Court, they are often not cleared. In January 2023, the Supreme Court collegium reaffirmed its recommendation to appoint 5 male judges that the executive had objected to, stating in detail the reasons for their recommendation and why the executive’s objections are unfounded. However, this was not done in the case of any of the women candidates whose names were not cleared by the government. Why did his Collegium in these situations not re-send the women’s names back to the government and reiterate their appointments? These are important questions to be asked.
Conclusion – Towards a More Gender Inclusive Judiciary?
If we want to move to a more gender representative higher judiciary, the starting point is that not enough women are recommended by the collegium. The proportion of women recommended by the Chandrachud-led collegium to the High Court (27 out of 168 recommendations, or 15%) is similar to the proportion of present serving women judges across all high courts (107 out of 750 HC judges, or 14 percent). Hence, the Chandrachud-led collegium not only failed to appoint a woman judge to the Supreme Court, it also did not significantly raise the proportion of women judges of the High Court. Further, of the 41 judges appointed as Chief Justices of High Courts during Chandrachud’s tenure, only four were women.
Justice Chandrachud had at multiple occasions reiterated the need for the judiciary to become a more diverse and gender-inclusive institution, but not enough was done about it in his tenure. Since the appointment of Justice Fathima Beevi as the first woman judge of the Supreme Court in 1989, only 10 more women have been appointed. So, only 11 of 276 judges (less than 4 percent) of the Supreme Court in the last 75 years have been women. An empirical study on the biographical characteristics of the judges appointed to the Supreme Court found that diversity of the Supreme Court in terms of gender, religion, and region- have largely remained the same both the pre-collegium and the collegium system. While the figures on regional and religious diversity are not surprising, what is alarming is that the collegium system has not had a positive effect on the representation of scheduled castes or women on the Court.
As opportunities for legal practice for women have improved in the last few decades, it should have naturally led to a rise in their representation in the higher judiciary. The numbers however do not reveal any increase, demonstrating that when it comes to the appointment of women in the higher judiciary, there are deep-seated systemic and institutional biases at play, which need to be dismantled.
The gaping gender gap in the higher judiciary in India is unconscionable and requires a systemic response. Judicial appointments in the higher judiciary should be reformed in such a manner that ensures that gender parity is the norm and not an exception. A 2018 Report of Parliamentary Standing Committee on Personnel, Public Grievances, and Law and Justice also recommended that the Higher Judiciary should mirror the diversity of Indian society, with the presence of women judges accounting for about half the strength. The pathways to achieve this can be many, from reforming the collegium system to adopting an entirely new appointments system with legal and constitutional reform. The presence of women from diverse backgrounds in the higher judiciary will enhance the trust and legitimacy of the judiciary as well as ensure that the judiciary is fairer and more representative of society - something that is sorely lacking at present.
*Jayna Kothari is a Senior Advocate and practices in the Supreme Court of India. Her research and practice interests include constitutional law, gender and sexuality law, disability rights, and discrimination law.
Mathew Idiculla is a Research Consultant at Centre for Law & Policy Research where he focuses on urban law and policy work.
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