Women Representation in the Higher Judiciary of India

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The appointment of Justice V. Mohana as a Judge of the Supreme Court of India marks a historic milestone in the Indian judiciary. She has become only the second woman advocate to be directly elevated from the Bar to the Supreme Court, after Justice Indu Malhotra (2018). The appointment has once again revived the debate on the low representation of women in India's higher judiciary and the need for institutional reforms to ensure greater gender diversity.

Introduction

• The Indian judiciary is regarded as the guardian of the Constitution, rule of law, and fundamental rights. However, despite constitutional guarantees of equality and non-discrimination, women's representation in the Supreme Court and High Courts remains disproportionately low.

• Although Justice V. Mohana's elevation is an important achievement, it also highlights the continuing structural barriers that prevent women from reaching the highest judicial offices.

• Ensuring gender-balanced judicial institutions is not merely a question of representation but is essential for enhancing the legitimacy, inclusiveness, diversity, and democratic character of the justice delivery system.

Persistent Gender Gap in India's Higher Judiciary

Limited Representation through Direct Elevation from the Bar

• The process of direct appointment from the Bar has historically favoured male advocates. Since Independence, the Supreme Court has directly appointed nine male advocates as judges, many of whom enjoyed long judicial careers.

• Several of them, including Justice S.M. Sikri and Justice U.U. Lalit, eventually became the Chief Justice of India (CJI), while current judges Justice P.S. Narasimha and Justice K.V. Viswanathan are also expected to occupy the office of the CJI in the future.

• In contrast, Justice Indu Malhotra, who became the first woman directly elevated from the Bar in 2018, served for less than three years before retirement and never became a member of the Supreme Court Collegium, thereby limiting her institutional influence. Justice V. Mohana's appointment therefore reflects progress, but it also exposes the limited opportunities available to women for leadership within the higher judiciary.

Current Status of Women in the Supreme Court

Despite recent appointments, women continue to remain grossly underrepresented in the apex judiciary. At present, only 2 out of 37 judges of the Supreme Court are women, accounting for barely about 5% of the Court's total strength. Such low representation stands in sharp contrast to India's constitutional commitment to gender equality and inclusive governance.

Reasons for Low Representation of Women

Historical and Structural Barriers

The legal profession has traditionally remained male-dominated, with women facing significant challenges in accessing opportunities for litigation, leadership, and judicial appointments. Career interruptions arising from family responsibilities, social expectations, and inadequate institutional support often affect women's professional advancement.

Opaque Appointment Process

Appointments to the higher judiciary are primarily made through the Collegium System, where there are no formal diversity criteria or gender benchmarks. Consequently, judicial appointments often rely upon seniority, professional visibility, and informal networks, areas where women have historically been underrepresented.

Limited Leadership Opportunities

Women remain underrepresented not only as judges but also in positions that influence judicial appointments, such as Chief Justices of High Courts, Senior Advocates, Bar Associations, and the Collegium. This limits their participation in institutional decision-making.

Global Best Practices for Gender Representation

Belgium Model

Belgium has adopted one of the world's most effective constitutional mechanisms for ensuring gender diversity in its apex judiciary. In 2014, it amended Article 34(5) of the Special Act of 1989 governing the Constitutional Court.

The amendment mandates that at least one-third of the judges must belong to each gender. Until this quota is achieved, every third appointment after two male appointments must necessarily be a woman. Belgium also ensures linguistic and professional diversity, making judicial appointments more representative.

South Africa Model

The Constitution of South Africa, under Section 174(2), explicitly requires that the judiciary should broadly reflect the racial and gender composition of society.

As a result, South Africa's Constitutional Court currently has six women among eleven judges and is headed by a woman Chief Justice, making it one of the world's first women-majority constitutional courts.

Representation Quotas are Not New to India

Existing Practice of Diversity in Judicial Appointments

Representation-based considerations are already recognised within India's judicial appointment process. While appointing judges to the Supreme Court, the Collegium generally ensures that different High Courts and regions of the country receive adequate representation.

This demonstrates that diversity considerations are already accepted as a legitimate appointment criterion. Therefore, extending similar consideration to gender representation would not be constitutionally unprecedented but would simply broaden the concept of diversity.

India's Position in Global Comparison

International Comparison

India performs poorly when compared to several constitutional democracies regarding women's representation in apex courts.

The comparison clearly demonstrates that India significantly lags behind both developed and developing democracies in ensuring gender diversity within its highest constitutional court.

Why Greater Representation Matters

Strengthening Judicial Legitimacy

A judiciary that reflects the diversity of society enjoys greater public trust, legitimacy, and institutional credibility. Gender-balanced courts inspire greater confidence in the fairness of judicial institutions.

Improving Quality of Judicial Decision-Making

Judicial diversity brings multiple social experiences and perspectives into constitutional interpretation and adjudication. This contributes to richer legal reasoning and more inclusive justice.

Promoting Constitutional Values

Greater representation of women advances the constitutional principles of Equality (Article 14), Non-discrimination (Article 15), Equal Opportunity (Article 16), and the Directive Principles of State Policy, thereby strengthening substantive democracy.

Suggested Reforms

Constitutional Amendments

Articles 124 and 217 of the Constitution may be amended to require judicial appointments to reflect the gender and social diversity of Indian society. Such reforms should also encourage greater representation of women, Scheduled Castes (SCs), Scheduled Tribes (STs), Other Backward Classes (OBCs), and minority communities.

Judicial Policy on Gender Diversity

Pending constitutional amendments, the Supreme Court Collegium should voluntarily adopt a formal policy to ensure that at least one-third of judicial appointments are made from among qualified women candidates.

Target-Based Appointment Mechanism

India can adopt a model similar to Belgium, whereby after every two male appointments, the next appointment is reserved for a qualified woman candidate until 33.3% representation is achieved.

Expanding the Talent Pool

Greater efforts should be made to encourage women advocates to become Senior Advocates, appoint more women as High Court judges, and promote them as Chief Justices, thereby creating a stronger pipeline for future Supreme Court appointments.

Transparent Appointment Process

The Collegium system should incorporate objective diversity indicators, publish broader appointment criteria, and institutionalise periodic reviews of gender representation.

Constitutional and Legal Provisions

Way Forward

Justice V. Mohana's elevation is both a symbolic achievement and an important institutional milestone. However, isolated appointments cannot substitute for systemic reforms aimed at ensuring sustained gender diversity. India requires a clear roadmap comprising constitutional reforms, transparent judicial appointments, institutional commitment, and measurable representation targets.