Written by Pralipsa Panda student at National Law University Odisha
“I wish men had menstruation, then only, they would understand,”
Far from being a casual remark parroted by the general public, the quoted text reflects the anguish voiced by Justices B.V. Nagarathna and N. Kotiswar Singh. In 2024, as the apex court took suo-moto cognizance after a decision of the Madhya Pradesh High Court, the two-judge bench presented a poignant concern that highlighted the perpetuating discrimination against women. Slamming the judgment of the High Court terminating the services of women civil judges in the State and refusing to reinstate some of them added points of gender sensitivity to the books of the Supreme Court. However, with its recent judgment restoring the mandatory three-year practice in advocacy for judiciary aspirants, the top Court has pushed the dreams of women and various aspirants into a dark sinkhole, marking a sharp contrast from standing as the guardian of Fundamental Rights. This ruling came as a response to the concerns raised by multiple High Courts about the absence of exposure in a courtroom and practical experience among recent law graduates who entered the judiciary. By surmising that experience links to eligibility to preside on the bench, the Court failed to consider the impediments encountered by candidates from disadvantaged or humble backgrounds.
Earlier Background
The mandated three-year practice for judiciary aspirants is not a newly formulated rule but a restoration of what the Supreme Court scrapped in 2002, overruling the 1993 All India Judges Association case. This topic has been a matter of contemplation since the 116th Law Commission Report, 1983, recommended abolishing the rule. To put it chronologically, in 1993, the Supreme Court backed this rule of three years of advocacy. Later when the Shetty Commission in 1996 recommended abolishing this requirement, the Supreme Court in 2002 sanctioned the recommendation.
Rejection of harsh realities: the cyclic inequalities.
While the requirement appears neutral on paper, in actuality, it perpetuates inequality. In a country like India where the right to work is a guaranteed fundamental right, ironically, the inviolable right to dignity becomes violable to women, particularly in the workforce. In an interview with the Supreme Court Observer, Justice B.V. Nagarthana stressed the crucial role of domestic support in the professional advancement of women advocates. The honorable judge was undoubtedly correct in her view. As women navigate through the second shift, familial support becomes vital to topple the social norms that place a dual burden on women. The Supreme Court has long positioned itself as a caretaker of women’s rights, evident in former Chief Justice D.Y. Chandrachud’s strong and eloquent opinion in the Indian Young Lawyers’ Association to landmark rulings like Shayara Bano.
Contrary to its earlier standpoints, the Court has reversed advancement for women by restoring the three-year mandatory bar practice requirement. These additional years of precariousness will force many women to abandon their goals and submit to societal norms. The judiciary has always witnessed a dearth of gender diversity. According to the Indian Justice Report, 38% of Judges in District Courts are women. While the number marks a clear progress from the old days, this judgment by the apex court reasserts the glass ceiling. What invokes concern is the dismissal of this reality. Over the past few days, numerous instances revealed the discrimination women in law face. For example, in Allahabad High Court, a decree passed by a male judge trivialized rape attempts. Although this judgment was stayed by the Supreme Court, it nonetheless depicts the need for gender diversity in the judiciary to foster a more empathetic and morally sane approach. This approach is feasible only when the presence occupying the benches is diverse. In a judicial diaspora where female judges continue to face entrenched challenges ranging from misogynistic attitudes to institutional neglect, this decision by the Supreme Court aggravates it. Recently, a woman judge in a Delhi court was openly threatened inside her courtroom by a convicted lawyer and his client following a verdict in a cheque bounce case. The female judge faced a direct and gendered threat. This captures the daily risks women in the judiciary bear. Such incidents only sharpen the irony of the Supreme Court’s recent move to make entry into the judiciary more challenging for women. In a vicinity where sitting female judges already face threats and systemic oppression, the three-year practice requirement aids in filtering out aspirants before they can even reach the bench, thus acting as an additional barrier to an already hostile system.
In 2023, the Allahabad High Court directed the astrology department of Lucknow University to determine whether the rape complainant was ‘Manglik’ as a response to the accused’s assertion that he could not marry her due to astrological incompatibility. Despite the Supreme Court’s stay in the order, it raises grave concerns. Why should any court apply this outdated rationale in the first place? Such decisions by the bearers of justice betray even the rudimentary standards of legal reasoning. One would anticipate such a superstitious mindset to be disposed of by the admission of young rational minds into the judicial field. However, with the Supreme Court’s mandate, this seems to be an improbable possibility.
Another serious lapse generated by the Supreme Court’s ruling is its potential to discourage aspirants belonging to humble or underprivileged backgrounds from pursuing a judicial career. This requirement by the Supreme Court creates an economic quagmire. In many regions, junior lawyers have to work without any formal source of payment. Most senior advocates and law firms offer no stipends, pushing young lawyers to depend on family support, resources many simply do not enjoy. For example, in Tiruchi district, junior lawyers continue to struggle financially despite the Madras High Court’s 2024 order mandating a minimum stipend. The order directs established lawyers to pay juniors at least ₹20,000 per month in cities like Chennai, Madurai, and Coimbatore, and ₹15,000 in other parts of Tamil Nadu and Puducherry. However, this order faces lapses in its implementation, thus exposing the disconnect between judicial directives and enforcement on the ground. Despite this, this three-year practice requirement risks the exclusion of the voices of India’s young minds who hail from these backgrounds.
In addition to these setbacks, this policy further heightens the current annoyances terrorizing justice like the pendency of cases and emptiness of positions to decide these cases- the two difficulties that go together. The Indian Judicial diaspora is facing a striking number of pending cases, reaching the number 5 crores in 2025, out of which nearly 60,000 cases are over 30 years old. On the other hand, there has been an acute shortage of judges to address these cases. For every 18.7 lakh people, there’s one judge. Such a situation not only overburdens the judiciary but also erodes the trust of the public in the court’s ability to deliver justice. In addition to this, the three-year mandate is only going to slow down the occupancy of these vacant posts as it restricts the entry of fresh law graduates.
Judicial Indiscipline: A forgotten flaw
When judicial reforms are sought, the focus often lies on structural issues such as pendency and appointments. The growing trend of judicial indiscipline remains neglected. It is a well-established principle that decrees passed by benches of bigger sizes precede the decisions passed by benches of smaller sizes. This rule of hierarchy has been reasserted by Justices B.V. Nagarthana and Bela Trivedi in their dissents as noted in the mineral royalty and sub-classification judgments respectively. Following this logic, both the 2002 and 2025 orders of the Supreme Court are matters of indiscipline. The 1993 judgment was passed by a three-judge bench comprising Justices M.N. Venkatachaliah, A.M. Ahmadi, and P.B. Sawant. The 2002 and 2025 benches were presided over by a bench of less composition. Keeping aside the merits of both decisions, such inconsistency raises procedural inconsistency in respecting the precedential authority of the earlier judgments. Moreover, the Supreme Court has also displayed signs of judicial overreach in matters pertaining to district courts. Article 234 of the Indian Constitution vests the power to prescribe eligibility criteria for the district judiciary in the political executive, with the State Public Service Commissions and the respective High Courts holding consultative powers. Although the judiciary bears the power to strike down such rules if violative of Constitutional provisions, in the cases referenced above, no such violation was identified; Yet the Court has required mandatory modifications. There is no case of policy vacuum which would require the intervention of the judiciary. This lack of respect for precedents and long-established rules by the Top court strikes at the heart of a fair justice system.
How can the Judiciary reform itself?
While there’s no going back to this, unless the court reverses its decision, it can ensure that there’s fairness in the treatment of junior lawyers who have just joined the practice. It can oversee the existence of a direct nexus between judicial orders and their implementation. Moreover, it is recommended that the top court adhere to the established hierarchies and precedents as they are unless they transgress constitutional norms. Gender sensitization reforms should be conducted across all the courts to ensure a sensitive approach. This would promote a safe atmosphere for women which on the other hand also encourages familial support for her to join or continue the profession.
Conclusion
The Supreme Court has inadvertently backed the existent structural inequalities. Such an oversight is the farthest thing that should be conspicuous in the Court’s approach. If not inadvertent, the Apex Court has positioned itself to invite distrust and concerns about the sensibility of its approach to delivering justice. The most pragmatic approach for the Court in such a situation would be to observe caution and accountability in the future.