Justice R Bhanumathi, the latest judge to retire from the Supreme Court, leaves behind an illustrious tenure at India’s apex court. According to data published in the Supreme Court Observer Bhanumathi holds the distinction of having authored the most number of judgments among current judges, at 398; averaging 64.3 a year — the second highest, among current judges. Bhanumathi was also the first woman judge in the Supreme Court Collegium (the body which selects Supreme Court judges, comprising of the senior-most five judges) in 13 years, and only the second woman ever.
Yet, in what will be nothing short of a historical injustice, during her eight-month tenure as part of the collegium, not even a single appointment was made to the Supreme Court.
However, it should still make us deeply uncomfortable how women have had a say in only six of the 76 judges appointed to the Supreme Court after the year 2000 — the collegium system was created only in 1998. These six appointments were made when Justice Ruma Pal was in the collegium (2003-2006).
Neither of the two remaining women Supreme Court judges will make it to the collegium (barring unexpected deaths or retirements), and there won’t be another woman in the collegium till at least 2025). We will not have a woman Chief Justice of India till at least 2027.
The picture in the high courts isn’t any better. As on July 1, only 80 of the almost 700 high court judges were women, as per the list of judges found on the website of the Department of Justice.
Speaking at a webinar on July 19, Justice Indu Malhotra, judge of the Supreme Court, said that appointment to public offices, like that of a judge, should not be just about representation, but also be based on merit. So many women who are in positions of authority say that they would not give opportunity to a woman simply because of their gender. So the argument is not that if there were women in the collegium, which would automatically translate to more women judges. Far from it.
However, all the same, to pretend that the heavily skewed ratio in favour of men is simply a reflection of ‘merit’ is just insulting our collective intelligence. A person no less than the current president of the Supreme Court Bar Association, Dushyant Dave, has written about how more often than not, selection to of judges to the higher judiciary has been made on the basis of ‘reciprocity’ among collegium members.
Appointments to high courts are initiated by the Chief Justice of the High Court, along with the two senior-most judges of that court, which is finally affirmed by the Supreme Court collegium consisting of the three senior-most judges of the Supreme Court. Currently, across 25 high courts, only seven have women as one of the three senior-most judges.
Analysis of recommendations from the high court collegiums between October 2017 and April 2019 by Fulbright scholar Rangin Pallav Tripathi show that 87.63 percent of recommendations from the high court collegiums were of men. In the period selected for the study, only the High Courts of Madras, Gauhati, Jharkhand and Chhattisgarh included at least 20 percent women in their recommendation to judgeship at their respective courts. In most states, the percentage was well below 10 percent. The proportion of women in recommendations accepted by the Supreme Court collegium, which also did not have a woman member, is similar at around 12 percent.
So the lack of women judges in the collegiums become a self-perpetuating cycle. Male-dominated collegiums tend to recommend a higher proportion of males, who then occupy the collegium as they attain seniority. Therefore, ‘merit’ becomes just a strawman argument.
Justice Bhanumathi has been a trailblazer in many ways. She is one of the few Supreme Court judges who have worked their way all the way up from being a district judge. Her record at the apex court speaks for itself. There simply cannot be a better argument for the need to have more women in judiciary than the Justice herself. If only the men in robes would make some way.
Abraham C Mathews is an advocate based in Delhi. Twitter: @ebbruz. Views are personal.
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