IN a remarkable judgment delivered on February 28, 2025 by a multi-gendered bench of the Supreme Court comprising Justices B.V. Nagarathna and N. Kotiswar Singh, the Court addressed the issues faced by female officers within the Indian judiciary.
While acknowledging that having women in the judiciary makes it more inclusive, the Court observed that there is room for improvement in making the system more enabling for these women officers and sensitive to the problems they experience, which are widely different from those experienced by their male counterparts.
“It is not enough to find comfort solely in the growing number of female judicial officers if we are unable to ensure for them a sensitive work environment and guidance”, the judgment authored by Justice Nagarathna states.
It discusses the physical, emotional, and psychological difficulties faced by women, which are not necessarily appreciated while grading their performance as judges. It also highlights that the judicial system must account for the anxieties and difficulties faced by women in judicial services.
While pronouncing the judgement, Justice Nagarathna orally remarked that there is a need to realise and be more sensitive towards the fact that some women judges have to take painkillers to be able to sit from morning till evening on certain days of the month.
The judgment also elaborates on the physical and emotional effects that a miscarriage has on a woman—
“Psychological consequences (of a miscarriage) include an increase in the risk of anxiety, depression, post-traumatic stress disorder, sometimes leading to suicides…the psychological and social effects may be more severe and long lasting. A miscarriage affects a person’s identity, leading to disappointments and challenges to motherhood identity and role, stigma and isolation, amongst other aspects.”
The observations were made in reference to the case of one of the terminated officers, Aditi Kumar Sharma, who had suffered a miscarriage while in service, which adversely affected her performance in the evaluation year of 2021.
The judgement clarifies that gender is not a rescue for poor performance. Rather, it is a critical consideration that must be weighed for holistic decision-making at certain times and stages for women judicial officers.
How the proceedings got initiated
The issue arose when, on May 23, 2023, the services of six female judicial officers of the Madhya Pradesh state judicial services (Civil Judges, Junior Division) were terminated by the Madhya Pradesh government on the recommendation of the Administrative Committee of the Madhya Pradesh High Court which was approved by the Full Court by circulation on May 13, 2023.
The Administrative Committee had resolved to terminate the services of these officers considering their “ACRs, assessment charts, consistently poor performance/ work done and other material.”
Three of these judicial officers wrote to the Chief Justice of India, alleging their termination to be illegal, arbitrary, and contrary to the 1994 recruitment rules of the Madhya Pradesh judicial services. On November 11, 2023, the Chief took suo moto cognizance of the matter.
Before hearing the petitions on merit, the Supreme Court had requested the Full Court of the Madhya Pradesh High Court to reconsider the termination orders. Subsequently, four judicial officers were reinstated into the services vide resolution dated August 1, 2024. However, the termination of two judicial officers, Sarita Chaudhary and Aditi Kumar Sharma, was not revoked.
Notably, both these women had filed independent writ petitions in the matter that are also disposed of along with the suo moto petition by the common order of the Supreme Court dated February 28, 2025.
Justice Nagarathna noted that the grading in Mrs Sharma’s Annual Confidential Report (ACR) for 2021 was downgraded by the Portfolio Judge to ‘C-Good’ from the grading of ‘B-Very Good’ that was awarded by her Principal District Judge. The downgrading was done solely based on pendency and lesser disposal of cases, without considering that not only was she still reeling from the effects of a severe case of Covid-19 but had also suffered a miscarriage during that period which would have deeply affected her physical, mental and psychological health.
The bench also noted that during this period Sharma was assigned a vacant court, which does not see a high disposal rate in civil matters, as judicial officers are required to re-initiate the entire proceedings, sometimes from the stage of issuance of notices.
The low pendency for the year 2021 was cited as one of the reasons for terminating Sharma’s services. This was also when the entire nation was still recovering from the Covid-19 lockdown’s aftermath.
What did the High Court say?
The High Court had argued that the terminations were not stigmatic or punitive as the complaints against these judicial officers were not taken into consideration while resolving to terminate their services.
The High Court asserted that these were cases of termination simpliciter of judicial officers still on probation. Therefore, Article 311(2) of the Constitution, which states that the services of a civil servant cannot be terminated on allegations of misconduct without giving them an opportunity to be heard, could not apply to them.
What the Supreme Court held
The Supreme Court has rejected this argument and clarified that the protection under Article 311(2) is not subject to confirmation in the services and is available to probationers as much as to those officers whose services have been confirmed.
The law in this regard has been settled by a five-judge Constitution Bench of the Supreme Court in Parshotam Lal Dhingra v. Union of India (1957), where it was observed that Article 311 does not say that the protection provided thereunder is restricted only to permanent members of the services. The Court has held that to limit the operation of the protective provisions of the article only to these classes of persons will be to add qualifying words to the article, contrary to sound principles of interpretation of the Constitution or a statute. It further held that probationers require constitutional protection as much as permanent employees. The language of the article does not indicate that the Constitution makers intended to make any distinction between the two classes.
The Court has, in the present case, further noted that the complaints against petitioners were indeed taken into consideration since they were part of the assessment charts considered by the Full Court while approving the decision of the Administrative Committee. Therefore, the termination was punitive and bad in law. The Court has thus held—
“Even though a probationer has no right to hold a post, it would not imply that the mandate of Articles 14 and 16 of the Constitution could be violated inasmuch as there cannot be any arbitrary or discriminatory discharge or an absence of application of mind in the matter of assessment of performance and consideration of relevant materials. Thus, in deciding whether, in a given case, a termination was by way of punishment or not, the courts have to look into the substance of the matter and not the form.”
Also, the Court found that these complaints as well as the adverse remarks in the ACRs of the petitioners were either not communicated to them or were not communicated within a reasonable time, and were taken into consideration either without conducting inquiries or after conducting the inquiries behind the back of the petitioners thereby denying them the reasonable opportunity to show cause and prove their innocence.
In this regard, the Court has referred to its previous judgment in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences (1999), where it has been held that—
“If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as “founded” on the allegations and will be bad.”
Regarding communicating the adverse remarks in an ACR to the concerned officer, a three-judge bench of the Supreme Court has in Sukhdev Singh v. Union of India (2013), crystallised the law laid down earlier in Dev Dutt v. Union of India (2008), that the non-communication of the entries in the annual confidential reports of a public servant has civil consequences as it may affect his employment and other related prospects and may also result in the promotion of an officer of inferior merit. Such non-communication has thus been termed by the Court to be arbitrary, and as such violative of Article 14 of the Constitution.
Consequently, the suo moto writ petition and the independent writ petitions have been allowed and disposed of. The termination order issued by the government of Madhya Pradesh on the recommendation of the Administrative Committee of the Madhya Pradesh High Court has been set aside for being stigmatic, punitive, arbitrary, contrary to the principles of natural justice, and for being violative of the provisions of Article 311(2).
The Madhya Pradesh government and the Madhya Pradesh High Court have been directed to reinstate the petitioners into the service within fifteen days from the pronouncement of the judgment and declare their probation as on the date their juniors were confirmed.
The petitioners will, however, not be entitled to any backwages for the period they were not in service, but the monetary benefits for the same will be calculated notionally for pensionary benefits.
It has also been left to the High Court to deal with any pending complaints against the petitioners that were kept in abeyance by order of the Chief Justice of the High Court owing to their terminations in accordance with law.
What numbers tell us about women in the district judiciary
Indian higher judiciary has, routinely, and rather justly, been critiqued for failing to ensure gender representation in judicial appointments. Currently, the Supreme Court has only two women judges on the bench - one of whom, Justice Nagarathna authored Friday’s judgement. As of August 2024, only 14 percent of the sitting judges across India’s High Courts were women. This number has remained stagnant - today, of 755 sitting judges, only 107 are women.
Responding to criticisms of low gender representation, in October 2023, former Chief Justice D.Y. Chandrachud noted that there was a “trend” of more and more women judges being appointed in the district judiciary. This, he noted, indicated that in the upcoming years, representation of women in the higher judiciary would improve as well.
According to the India Justice Report, 2022, 35 percent of the total district judges were women. Goa’s subordinate courts, with a representation of 70 percent, led in terms of women judges, whereas states such as Bihar, Uttarakhand, Tripura, Manipur and Meghalaya did not have any women judges. In its State of the Judiciary report, which indicates the latest data, the Supreme Court stated that as of November 2023, the net representation of women in district judiciary had marginally increased to 36.3 percent. It also claimed that in 14 of 16 states examined, more than 50 percent of the candidates who cleared the Civil Judge (Junior Division) exam were women.
While indicating an improvement in women’s representation, the district judiciary continues to struggle to accommodate women, or provide the necessary infrastructure. As of September 2023, only 32 and 13.1 percent of district court complexes had separate lock up facilities for women and creche facilities respectively.
Fair disclosure: the author appeared in this case for the petitioner Aditi Kumar Sharma, along with Senior Advocate Indira Jaising.
