With the recent elevations, three in May and two in August, the Supreme Court has reached its full sanctioned strength of 34 judges, including the Chief Justice of India. Yet, the appointments have reignited concerns over the Court's composition, particularly the continued underrepresentation of women Judges, with Justice B.V. Nagarathna now the sole woman judge on the bench.
The functioning of the Supreme Court Collegium has long been shrouded in doubt, with frequent criticism over its lack of transparency and opaque decision-making process. The elevation of Justice Vipul M. Pancholi, ranked 57th in the All India High Court Judges' Seniority List to the Supreme Court, while overlooking several senior judges, including women judges, underscores that the Collegium's recommendations are not strictly guided by seniority but by other considerations that remain undisclosed to the public.
Oath-taking ceremony of Justices Alok Aradhe and Vipul M. Pancholi, with Justice Nagarathna (seated third from the right in first row) as the sole woman on the Supreme Court bench.
Since 2021, no woman has been appointed to the Supreme Court under the leadership of four successive Chief Justices, as rightly indicated by Senior Advocate Indira Jaisingh on 'X' (formerly Twitter), a fact that underscores the serious issue of women's underrepresentation in the country's Highest Court. Just days before demitting office, former CJI D.Y. Chandrachud expressed his helplessness in recommending a woman judge to the Supreme Court, citing the barrier of seniority. However, seniority alone cannot become an insurmountable hurdle, especially when judges with considerably lower ranks, such as one holding the All India 57th position, are being elevated to the Supreme Court, bypassing several of their seniors.
The argument that seniority should act as a rigid filter is particularly problematic in the case of women judges. Given their disproportionately low numbers in the higher judiciary, very few women even reach the senior-most positions in the first place. As a result, if the Collegium adheres strictly to seniority, women judges will continue to be excluded. It is worth asking: should a woman judge, with impeccable integrity and intellectual merit, be denied elevation merely because she falls lower in the seniority list? Such an approach not only perpetuates systemic inequality but also disregards the broader constitutional promise of equality and fairness. In light of the abysmal representation of women in the judiciary, relying solely on seniority without accommodating this structural imbalance risks entrenching exclusion rather than correcting it.
The existing structural imbalance can be corrected by introducing a quota for women judges in the Supreme Court and High Courts, much like the 33% reservation for women in Loksabha and State Legislatures, the reservations already in place for government jobs, the recent Supreme Court directive reserving 30% of posts in the Supreme Court Bar Association for women, and reserving posts in Delhi's Bar bodies for women lawyers. A more diverse bench ensures a plurality of perspectives, which is essential in a heterogeneous society like India. This approach finds strong constitutional backing: in State of Kerala v. N.M. Thomas (1975), the Court upheld affirmative action, observing that equality is not merely the absence of discrimination but a positive obligation to create real opportunities. Similarly, in the Second Judges Case (Supreme Court Advocates-on-Record Association v. Union of India, 1993), the Court itself recognized the importance of “due representation to all sections of society” within the judiciary to reflect its diversity.
Extending this logic to the judiciary is not a radical proposition but rather a natural continuation of the constitutional mandate of equality and the state's obligation to ensure justice for all. The Collegium could, for instance, adopt a documented rule requiring that every recommendation for elevation to the Supreme Court or High Courts be drawn from a shortlist that necessarily includes at least one-woman candidate, a “shortlist parity” principle. Such a measure would not compromise merit but would help ensure that qualified women are not overlooked due to systemic bias. The aim is not to promote unqualified candidates or those influenced by external pressures, but to guarantee that competent women from diverse backgrounds are given a fair opportunity.
The legal profession has often been criticized as being less welcoming to women, yet their presence on the bench can significantly enrich judicial deliberations and enhance public trust. For women litigants in particular, seeing themselves represented in the institution that exercises profound influence over their lives fosters a sense of inclusion, fairness, and confidence in the justice system.
The Collegium System was originally conceived to attract the best judicial talent from all sections of society, but its current functioning has drifted from this foundational vision. Similarly, the absence of meaningful representation for Scheduled Castes, Scheduled Tribes, Other Backward Classes, Muslims (currently with one Muslim Judge, which is not proportionate to their population), and other religious minorities presents a serious challenge to the representative character of both the Supreme Court and the High Courts. In the Second Judges Case (1993), the Court itself underscored the necessity of ensuring that “all sections of society” are adequately represented in judicial appointments. Yet, despite this recognition, the reality remains that these groups continue to be significantly underrepresented, leaving the higher judiciary far less reflective of India's social diversity than was envisaged.
“It is essential and vital for the establishment of real participatory democracy that all sections and classes of people, be they backward classes or scheduled castes or scheduled tribes or minorities or women, should be afforded equal opportunity so that the judicial administration is also participated in by the outstanding and meritorious candidates belonging to all sections of the society not by any selective or insular group.”, the court said in Second Judges Case.
The judgment authored by Justice J.S. Verma did not advocate a quota or reservation system in the higher judiciary, instead leaving the question of inclusivity to the discretion of the Chief Justice of India and the Chief Justices of the High Courts. However, in the present context, where judicial recommendations are often viewed as influenced by extraneous considerations, the need for a structured quota system has become pressing. Introducing reservations in judicial appointments, similar to those in legislatures and public employment, could serve to democratise the process. Rather than undermining judicial independence, such a framework would give concrete effect to the constitutional commitment to substantive equality and social justice embodied in Articles 14, 15, and 16.
At this juncture, the Court's observation in the Second Judges case strengthens the case for rectifying the judicial imbalance:
“I am emboldened to express this view because with the years or experience for nearly two decades at the Bar and two decades on the Bench and with knowledge and experience I have gained so far about the manner and method of selection of Judges I had opportunity to notice that on few occasions, the candidates have been initiated for judgeship either on regional or caste or communal basis or on extraneous considerations. There have been complaints, which cannot be easily brushed aside that some of the recommendations have been tainted with nepotism and favour-tism. No doubt, there is an abundance of sermons, preachings and teachings that the selection and initiation of candidates for judgeship should be free extraneous consideration, nepotism and favourtism - yet can it be said that in reality, such high flown sermons are implicity followed by all including some of the preachers? Can it be said that anyone is exempted from following such sermons and preachings or anyone enjoys any immunity therefrom, Regretably, it is a fact of life that some have followed such homilies more in the breach than in their observance. Even today, there are complaints that generations of men from the same family or caste, community or religion, are being sponsored and initiated and appointed as judges, thereby creating a new "theory of judicial relationship."
(The author is a Supreme Court Correspondent at Live Law. For feedback and suggestions, he can be reached at yash@livelaw-in.demo.remotlog.com.)