Women in Judiciary

Recently, in first for Supreme Court, 9 judges including three women took oath in one go. Madhya Pradesh High Court has granted bail to a man accused of sexual harassment on the condition that he will request the complainant to tie a 'rakhi' on him.

• However, such trivialisation of sexual offences, through a judicial order to tie Rakhi, or in rape cases, to compromise by marrying the accused, indicate that patriarchy and misogyny, with regressive notions of honour continue to obstruct women’s access to justice.
• Attorney General of India said that there is need to gender-sensitize judges and improve women participation in judiciary.
• parliamentary standing committee on law and justice in 2015 had proposed reservation for women in the higher judiciary. 

Existing women participation in judiciary

In Supreme Court (SC)

• Supreme Court has only 2 women judges, as against a total sanctioned strength of 34 judges and there has never been a female Chief Justice of India
• Since its inception only eight women judges have been appointed to the Supreme Court.
• Justice Fathima Beevi was the first woman SC judge
• Currently 17 women senior counsel designates in the Supreme Court as opposed to 403 men.

In High Courts (HC)

• only 80 women judges out of the total sanctioned strength of 1,113 comprising only 7.2% of the total
• 6 HCs (Manipur, Meghalaya, Patna, Tripura, Telangana, and Uttarakhand) have no sitting women judges.

In Subordinate courts

• 27% female judges in the lower judiciary.
• Sub-ordinate judiciary has better women participation due to reservation by some states and entrance exams at the entry level, however it is highly skewed between states.

Advocates

• Women make up only 15% of all enrolled advocates in the country.

Why there is need to improve women representation in judiciary?

• Constitutional Provisions: Article 14, 15, 15(3), 16, 39(a), 39(b), 39(c) and 42 provides for gender justice, hence increased women participation is necessary.
• Sensitivity in proceedings: Women seen as empathetic and sensitive, improving participation will help to improve quality of justice
• Social respect: stigma of incapability of women in litigation job will get vanished
• Improve accessibility to justice by women: Easy availability of women advocates and judges for women victims, makes them more comfortable and confident
• Representation of country’s demography: representative gender jurisprudence would raise willingness of women to seek justice and produce judgments that better reflect the diversity of Indian experiences.
• Role model: benchmark for society with many more young women students coming forward and opting for law as a profession.
• Public perception: entry of women judges into spaces from which they had historically been excluded. By their mere presence, women judges enhance the legitimacy of courts, sending a powerful signal that they are open and accessible to those who seek recourse to justice.

What are the challenges to improve participation of women in judiciary?

• Appointment: power of appointment almost exclusively with the collegium, unlike entrance exam and reservation in subordinate judiciary.
• Patriarchal society: International Commission of Jurists (ICJ) the lower representation of women in the judiciary is often due to gender stereotyping.
• Stringent and closed recruitment processes
• Leaking pipeline: In the lower judiciary, major barrier to women’s recruitment as district judges are the eligibility criteria to take the entrance exams, need to have seven years of continuous legal practice and be in the age of 35-45. This is a disadvantage for women as many are married by this age.
• Stringent eligibility:Article 233 appointment as a district judge requires not less than seven years as an advocate, the Supreme Court has upheld the interpretation to mean continuous practice.
• Collegium system: In higher judiciary the power of appointment rests almost exclusively with the Supreme Court Collegium. The appointment process is not very transparent and the collegium over the year have been male dominated which might have resulted in low ratio of selection of women judges.
• Workplace conditions: male-dominated profession, with poor sanitation in court premises, lack of paid maternity leave and crèches, sexual harassment and frequent transfers. After Vishakha guidelines and Gender sensitization committees, the participation of women in higher judiciary is very dismal.
• Job security and irregularity: Litigation job in higher judiciary does not provide continuous income source.
• Poor infrastructure: Vidhi Centre for Legal Policy in 2019 report, about 15 per cent of courts in India do not have a women’s toilet.
• Frequent transfers: challenge to fill the gender gap in the judicial system as the defined gender roles in the Indian society makes difficult for women to be in transferable jobs
• Limited outreach opportunities: The absence of documentation about the lives of women in law

Way forward

• Monitoring and assessment: Supreme Court must direct high courts, lower courts and tribunals for collection of data to determine the number of women judges and also to determine year-wise number of seniors designates.
• Improve retention: of women advocates in higher judiciary to make more options available for collegium to appoint competent women judges.
• Holistic inclusion: need representation of judges from not only different gender identities, but also from different caste, socioeconomic, religious and regional backgrounds.
• Concrete data on women representation
• Transparency in selection process: UN Women, female judges could be improved in many cases by transparent selection and appointment processes.
• Reservation: Higher judiciary have horizontal reservation for women
• Sensitivity to gender discrimination cultivated in the society as a whole.

Achieving equality for women judges, in terms of representation at all levels of the judiciary and on policy- making judicial councils, should be our goal- not only because it is right for women, but also because it is right for the achievement of a more just rule of law.

As Justice Indu Malhotra, in her farewell speech, rightly asserted “justice will be served if gender diversity is found on the bench.”