Where are the women? A study of High Court judges in India offers a number of insights

Fewer than 8% of High Court judges in the last 25 years have been women; more than half of India’s High Courts have not had a woman Chief Justice; and just four High Court judges elevated to the Supreme Court of India in the same time period were women, a new dataset of High Court judges shows.

Data on the caste and religion of judges were not available.

The KHOJ (Know Your High Court Judges) dataset was jointly collated by a group of organisations working with legal data, including Agami, CivicDataLab, and the Centre for Public Policy, Law and Good Governance at National Law University, Cuttack, Odisha.

It was released on September 17, 2022 at NLUO’s convocation by the Chief Justice of India, UU Lalit, in the presence of Supreme Court Justices DY Chandrachud and MR Shah and Orissa High Court Chief Justice S Muralidhar.

Data was collected from official sources, including High Court and Supreme Court websites and those of other judicial bodies, including tribunals. The research looks at four chief areas – background information, educational information, experience before judicial appointment and judicial appointments – and covers 43 indicators. Only judges appointed after 1993, when the collegium system came into place, were considered.

How are judicial appointments decided?

The process of judicial appointments in India has been a point of contention between the legislative and judicial branches. In 1993 a Supreme Court constitution bench, while deciding the ‘Second Judges’ case, established that the power to appoint judges in the High Courts and the Supreme Court rested with a collegium headed by the Chief Justice of India.

In 2014, the National Judicial Appointments Commission Bill, which proposed a constitutional body to replace the collegium system of appointments of judges, was passed by Parliament but later rejected by the Supreme Court, as IndiaSpend reported in February 2018.

In 2019, a nine-judge bench of the Supreme Court dismissed a review of its 1993 judgement in the Second Judges case, but tensions between the legislature and the judiciary over judicial appointments remain; just last week, Union Law and Justice Minister Kiren Rijiju reportedly said that the collegium system needs a rethink.

The Supreme Court collegium is composed of the Chief Justice of India and the four other seniormost judges of the court at that time, per the Memorandum of procedure of appointment of High Court Judges. A High Court collegium is led by the incumbent Chief Justice and four other seniormost judges of that court. The High Court collegium recommends names for appointment as judges, which are then approved by the Chief Justice of India and the Supreme Court collegium and only then sent to the government. The government makes enquiries and can raise objections, but if the collegium reiterates the same names, the government is bound by Supreme Court Constitution Bench judgments to appoint them as judges.

Past experiences of those appointed as High Court judges

The KHOJ data show that judges who are appointed to the High Courts come from one of two types of professional backgrounds: service, meaning that they served as judges in the subordinate judiciary; or bar, meaning that they rose to be top lawyers who were then appointed to the High Court as judges, the researchers explained to IndiaSpend. At the level of appointment to the High Court, judges are equally divided between those who came from the bar and those who rose through the higher judiciary.

However, when it comes to their elevation, things change. Judges who came to the High Court from the bar rather than from the subordinate judiciary are much more likely to be made Chief Justice. Additionally, just two of the 64 High Court judges elevated to the Supreme Court, for whom data were available, rose through the ranks from the subordinate judiciary.

One reason for this could be that judges appointed via the bar are much younger (50 at the time of appointment to the High Court, on average, compared to 57 for those who rise through the subordinate judiciary, according to IndiaSpend’s calculations from the KHOJ dataset), offering them more years in the High Court to rise to senior positions.

While one-third of judges appointed to the High Court have been government counsels (appointed to represent the government in court), their representation is much higher in higher posts: two-thirds of High Court judges appointed as Chief Justices or elevated to the Supreme Court have served as government counsels, or counsels for public sector units or statutory bodies. At least 80 judges appointed to the High Court were empanelled by private companies (appointed to represent them in court) during their careers in the bar.

The data also helps to put in context the question of transfers of judges. While there is often media reporting around “punishment” transfers, a transfer, data indicates, could also be the mark of the collegium putting a High Court judge on the path to promotion. Judges selected for transfers tend to be the ones who go on to rise through the judiciary.

In all, only 239 High Court judges out of the 1,536 for whom data is available had ever been transferred out of the state. But the odds of rising through the ranks increase drastically for judges who have seen a few transfers in their career. Judges who have seen at least one transfer are more likely to become Chief Justices, as well as to be elevated to the Supreme Court. Around 71% of judges who saw one transfer went on to become Chief Justices. More than half the High Court judges elevated to the Supreme Court were transferred at least once.

By convention, High Court Chief Justices come from outside the parent High Court’s jurisdiction, per the Memorandum. Despite being only the seventh largest jurisdiction with a sanctioned strength of 45 permanent judges, Delhi High Court has produced the most Chief Justices followed by Kerala (12th largest) and Madhya Pradesh (10th largest). No judge from Sikkim, a High Court jurisdiction that has existed since 1975, has been made a Chief Justice in the last 25 years, the KHOJ data indicate.

A Chief Justice’s career progression

A High Court judge can be Chief Justice more than once, but data points to some interesting dimensions to the career progression of a Chief Justice. Some High Courts are more likely than others to get more experienced judges as Chief Justices. The High Courts of Manipur, Meghalaya, Tripura and Punjab & Haryana have only ever had first-time Chief Justices. Calcutta, Delhi and Bombay, on the other hand, are least likely to have first-time Chief Justices.

Women judges and those who were appointed to the High Court via the subordinate judiciary rarely make it to the Supreme Court. Of the 64 judges in the dataset who had been elevated to the Supreme Court, the largest shares came from Allahabad, Delhi and Karnataka High Courts.

“Public availability of data regarding judges should be the norm and withholding it should be the exception,” Professor of Law at NLOU Rangin Tripathy, who led the project, told IndiaSpend. “Under this wider understanding, we should have complete access to all such data which gives us a better understanding about the background of our judges. The men/women on the dais should not be mysterious entities. Especially, we should have all information which has the potential to create conflict of interest.”

This article first appeared on IndiaSpend, a data-driven and public-interest journalism non-profit.