Stigma and sensitivity

On Friday, Justices B.V. Nagarathna and N.K. Singh delivered a judgement ordering the reinstatement of Sarita Choudhary and Aditi Kumar Sharma, two women civil judges in Madhya Pradesh. The High Court had terminated their employment in May 2023, along with that of four others.

The Supreme Court had taken suo moto cognisance of the issue on the direction of the Chief Justice in December 2023. Since then, four of the six officers were reinstated, but Choudhary and Sharma were not. They contended that the reasons for their termination lacked substance and were punitive, arbitrary and unlawful. They also relied on Article 311(2), which states that a civil servant cannot be dismissed, removed or reduced in rank without a fair inquiry.

In the judgement, the Court distinguished between a simple termination of employment and dismissal amounting to a punishment. It reasoned that a punitive termination would cause “stigma” and affect the candidate’s future prospects. The bench also cited Anoop Jaiswal v Government of India (1984), which held that the Court could go beyond the written termination order to assess whether it was a punishment in disguise.

In Dipti Prakash Banerjee v Satyendra Nath Bose National Centre (1999), the Court had observed that the stigma caused by a probationer’s termination may be due to observations in the termination order but also through proceedings that have taken place previously. The bench relied on Parshotam Lal Dhingra v Union of India (1957), where the Supreme Court held that the safeguards under Article 311 also applied to probationers if their termination was punitive and hampered career prospects. 

In the present case, the Division Bench reviewed the officers’ service records, Annual Confidential Reports (ACRs) and the complaints filed against them. In Choudhary’s case, the Court noted that she had a good overall record despite some inconsistencies in her ACR gradings. The bench observed that some of the complaints against her did not relate to her judicial incompetence. Moreover, they were resolved with warnings, which was proof that the High Court acknowledged that she could “learn with experience”. 

Sharma’s ACRs showed declining performance, accompanied by complaints. In her case, the Court took into account her difficult personal circumstances, including her brother’s cancer diagnosis and her miscarriage. The top court deemed as erroneous the High Court’s failure to consider her acute medical and emotional hardships. 

Justice Nagarathna, who authored the judgement, also made important observations on greater representation of women in the judiciary. ”It is not enough to find comfort solely in the growing number of female judicial officers if we are unable to secure for them a sensitive work environment and guidance,” she wrote. To this end, she noted that it was necessary to ensure that (i) more women enter, (ii) more remain and (iii) more progress to higher ranks and posts. She underscored that while gender is not a basis for leniency, it remains a factor in ensuring fair decision-making, particularly at critical junctures in a woman judicial officer’s career. 

The representation of women, especially in the higher judiciary, remains abysmal. The top court currently has only two sitting women judges. In the 25 high courts across the country, only 107 of 755 (14.17 percent) judges are women. The 14 percent figure has remained unchanged since August last year, when we undertook a data study. 

The district judiciary, however, paints a slightly more optimistic picture. According to the latest State of the Judiciary Report (2023), 36.3 percent of all officers in the district judiciary were women. In 2023, then Chief Justice D.Y. Chandrachud had pointed out that the gender ratio in the district judiciary was indicative of changing times. “What we do today would decide how the judiciary will be 10 to 15 years later,” he said. 

In an interview with us in November 2023, Justice Nagarathna had pointed out that a woman in the legal field must be supported by her family, colleagues and seniors to “diversify in her profession” and achieve “visibility”. Hopefully, her emphasis on a “sensitive work environment and guidance” will not be forgotten even after this judgement is out of the news cycle.

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