When There Are Nine (Or Thirty-Four): Affirmative Action and Women in the Higher Judiciary

“And how many men have you hired that didn’t live up to your expectations for them?”

– Ruth Bader Ginsburg, Stanford Rathbun Lecture, 2017

One of the most significant powers the President of the United States possesses is to appoint judges to the American Supreme Court. All appointments of Justices to the United States Supreme Court are for life, and long after a President leaves office, his legacy endures, often for generations. During Jimmy Carter’s term as President of the United States, not a single vacancy occurred on the US Supreme Court. Despite this, Carter’s legacy of judicial appointments rivals - and arguably surpasses - that of any other President in American history.

Carter appointed a record number of women and minorities to the federal judiciary. In particular, he appointed 41 female judges: five times as many women as all of his predecessors, combined. This was by no means an accident. In a speech he delivered in 1980, Carter said he was “determined to see that women and minorities, whose destinies have so often depended upon the kind of justice that our courts can provide, should be included in those judgeships.”

A quick review of statistics in India’s higher judiciary makes it clear that this determination is lacking when it comes to appointing women to the Bench. The idea that justice must not only be done but also must be seen to be done is one that has seeped into common law jurisprudence in India and elsewhere. But there are vital components of this idea, outside the well-known indices of fair decision-making and a commitment to natural justice, that are yet to find their way into a working definition.

The appearance of justice is best achieved through a judiciary that reflects the community it serves. Does something of this true ideal remain to be realized when only 8 women have ever held a seat on the Supreme Court of India, and less than 8% of judges in High Courts today are women? There really is only one right, inescapable answer to this question: yes.

Appointments to the High Courts in India are governed by Articles 217 and 224 of the Constitution, which provide for the qualifications for appointment and conditions of office. The qualifications require that the contender be a citizen of India and must have held judicial office or practiced as an advocate for a minimum of 10 years; the stipulated age of retirement is 62 years.

Judges of the Supreme Court are appointed under Article 124 of the Constitution, which provides similar qualifications (requiring that an appointee must have been a judge of a High Court or of two or more such courts in succession for five years, or been an advocate for ten, or be a distinguished jurist in the opinion of the President) and an age limit of 65 years. There are no other qualifications for appointment.

After the Judges’ Cases, the Supreme Court holds the power to appoint judges to the higher judiciary. Appointments to the Supreme Court are made by a Collegium of the Supreme Court’s five senior-most judges in consultation with the Union government, and appointments to the High Courts are made by a Collegium of the Supreme Court’s three senior-most judges in consultation with the relevant state government.

There are a number of unwritten conventions that the Collegium is guided by when making appointments to the Supreme Court. The two that appear to have the most direct bearing on the allocation of seats on the Supreme Court are seniority and regional representation. An intersection of these factors means that appointees to the Supreme Court (aside from rare, direct appointments from the Bar) come from the senior-most judges of the High Courts. As far as the High Courts are concerned, the most ubiquitous unwritten rule for appointment is that the candidate in question must be at least 45 years of age. There exist notable exceptions, but these exceptions only serve to prove the rule.

The workings of the Collegium are shrouded in secrecy, not quite accessible even to the larger legal world, and women have not exactly been a regular sight on the Collegium. In recent years, more and more questions are being asked about the lack of transparency in the process of appointments by the Collegium. But not enough questions have been asked about whether the Collegium has considered appointing more than a token number of women to the High Courts and the Supreme Court.

This inquiry into the numbers of women in the higher judiciary must be informed by the structure of the judiciary itself. Why don’t we see more women on the Supreme Court? Most appointments to the Supreme Court are made from the High Courts on the basis of seniority. It may be that there simply aren’t enough (and senior enough) women on the High Courts to choose from, while also balancing regional representation.

A research paper from 2019 suggests that even as it pertains to elevation of Chief Justices of various High Courts to the Supreme Court, female Chief Justices are appointed at a lower rate. Why don’t we see more women in the High Courts? This is an important question, seeing as the numbers of women in litigation increase with each passing year.

In fairness, one must concede that the Supreme Court Collegium does appear to be guided by some broad (perhaps the broadest) considerations of diversity, with purposeful appointments being made to ensure some representation for SC/STs and OBCs, and also for women. Even if we are not yet at a point where representation of sexual orientation and gender identification informs who we see on the Supreme Court, the collective mind of the Collegium is alive to the questions of representation when it comes to some classes. It’s just not as alive to it as it ought to be.

The current approach is wholly inadequate, for if the judiciary is to move beyond tokenism, it is not enough to have a seat or two reserved for women in the Apex Court. What is needed is a broader structural revision in appointments to the High Courts (and, indeed, the lower judiciary where empirical research reveals that female representation is better but could be better still). A proactive approach that sees more women appointed to lower courts and High Courts will see far more significant, longer lasting, and equitable change. Affirmative action at these levels would also see more women rising in the ranks to the Supreme Court, not because of unwritten rules or attempts at gender balance, but in the ordinary course of elevation - a system that would imbue a sense of fairness to all elevations to the Supreme Court, irrespective of gender.

There is, of course, a “but” here. Any suggestion of affirmative action for women in the higher judiciary is met with impassioned calls that seek to emphasize merit above all else. The sequitur is that if one so much as looks in the direction of a candidate that is not male (or upper-caste), one is necessarily sacrificing something worth preserving. Let’s call this the competence counter-argument. Continuous and immediate recourse to the competence counter-argument is taken as much by women in high places as by men. This is at once the symptom of being co-opted into a deeply male-dominated system, and an egregious failure of one’s own ability to parse the realities of the world.

Too many women have been heard to say that the glass ceiling does not exist, and that has been the bitterest pill to swallow. We must recognize that no matter the modicum of success one may achieve individually, individual motivations remain an unreliable means to success for women as a whole—this is the first step in feminism’s Do It Yourself kit. But it appears that we may sooner dismantle the patriarchy than the meritocracy.

Consider the absurdity of the competence counter-argument to affirmative action in the background of one of the greatest legal careers the world has ever witnessed. One of the 41 female judges appointed to the federal judiciary by Jimmy Carter was Ruth Bader Ginsburg. One of only 9 women in a class of over 500 at Harvard Law School, Ginsburg went on to a teaching job when she found that not a single law firm in New York (or anywhere else) would hire her as an attorney. This was a steadfast commitment to masculinity above all, one that permeates our social fabric even today and gives us a world that has successfully integrated masculinity and competence into a singular monolith.

In March 1986, when asked if she ever wanted to be a judge, Ginsburg responded,

“I didn't think specifically about becoming a judge because, frankly, I didn't think it was possible...There were no women at the court of appeals level, none at all…You don’t aspire to something that is such a remote possibility.”

Ginsburg was already a giant of the legal world by the late-1970s, having waged significant battles for women and having, in large measure, succeeded in those battles. Ginsburg was appointed to the Supreme Court in 1993 by President Bill Clinton. When she died on September 18, 2020, it was plain to see that a seat on the Supreme Court - often the highlight of any career - was but one of Ginsburg’s many accomplishments.

Make no mistake: the idea that affirmative action is anathema to merit is one that would have cost Ginsburg her judicial career on the DC Circuit (which in turn may have altered her chances for a nomination to the Supreme Court), and that is exactly why we must look more closely at the arguments against it and what they symbolize. Indeed, a 1986 analysis of judicial appointments in the Carter Administration revealed that female appointees had qualifications that exceeded those of their male counterparts.

A Supreme Court on which the female gender has had no more than a cameo can never be representative of the citizenship of this country, no matter how finely balanced its regional allocations may be. This is not a question of competence; it is an indictment of everything we have come to value as a patriarchal society.

In the natural world, the swallow is what is known as an “indicator species”—their presence tells you about the health of surrounding ecosystems. The presence of women on the Bench tells you as much about the health of a society. And as we all know, a single swallow does not a summer make.

Women ought to be perceived as a talent pool and a demographic, rather than just a “quota” to fill. I use the term in the same pejorative sense as critics of affirmative action who ask if women want to be appointed as “merit candidates” or “quota candidates,” but to a different end, which is this: women are more than a statistic, and women need and deserve champions. If all you seek to do is a fill a quota, you are merely meeting the lowest threshold. You are not in fact assessing a candidate as one should. That said, ironically enough, we do not even have or profess to meet a certain official minimum.

If one does believe that one is necessarily sacrificing merit when one aims for representation, why then do regional considerations carry such weight on the Supreme Court? The reason is that a lot of our notions about merit and competence have a tenuous link with reality. But they have become that foolish (in)consistency we fall back on when we talk about affirmative action. That is how far we have strayed from the constitutional ideal of equality and the truly democratic means of achieving it. Plainly put, the number of women in the higher judiciary ought to be treated as a standard as compelling as any of the other standards we see in active use.

There are many people who believe that a woman on the bench would bring her own lived experience to decision-making. If there were more women on the bench, they hazard, perhaps we would not have decisions like Mahmood Farooqui or Jagannivasan v. State of Kerala. Doubtless this is true, but it is a somewhat problematic commendation because women are not, merely by virtue of being women, impervious to ways of thinking and seeing that come with living in a patriarchal society.

Having more women on the bench is a goal worth achieving for its own sake. Why? Because it is important for people (both men and women) to see women in positions of power where they are scarcely seen; because it is important for other women to aspire to something and you only covet that which you can see; because in a country with great social and gender inequality, this is the one self-perpetuating cycle of ambition and aspiration that we truly need.

Some feminists and most advertisers like to use a phrase that once seemed hopeful, but increasingly leaves one cold: The future is female, they say. The future is a question-mark; the future is always some other day, just not today; the future is not the now. What we need is to alter the now, and try not to live in a world where the default is male but the future - eternally nebulous - is female.

The author is a litigator practicing at the Bombay High Court. The author owes special thanks to Akash Rebello for his inputs on this piece.