Even as she acknowledged that the judiciary is a patriarchal institution, Justice Beevi also famously said that she has “opened the door” for women with her appointment.
What is the representation of women in India’s Supreme Court?
Since 1989, only 10 women have made it to the Supreme Court. Currently, there are only three female judges of the 33 Supreme Court judges – Justices Hima Kohli; Bela Trivedi; and BV Nagarathna.While Justice Nagarathna is in line to become the first-ever female Chief Justice of India on September 25th, 2027, her tenure will be only 36 days.However, the appointment of Justices Kohli, Nagarathna, and Trivedi to the top court in 2021 created history, as this marked the first time that so many females were appointed to the SC in one go. Additionally, this was significant as for the first time we had four female judges in the SC at once, the highest number so far.
Apart from this, there have been only eight other female judges in the history of India’s apex court. They include Justices Sujata Manohar, Ruma Pal, Gyan Sudha Misra, Ranjana Desai, R. Banumathi, Indu Malhotra, and Indira Banerjee and Fathima Beevi.
This means that among the total 268 judges in the Supreme Court’s history, only 11 have been women. In other words, only 4.1% of all Supreme Court judges have been women, while the remaining 96% are men.
Is the situation in High Courts any better?
Presently, India has 25 high courts with a total sanctioned strength of 1,114 judges. However, according to the Department of Justice’s website, only 782 judges are working while the remaining 332 judges’ posts are vacant. Among these, only 107 judges, or 13% of all HC judges, are female.
Currently, none of the country’s 25 HCs have a female chief justice, barring the Gujarat High Court, where the collegium appointed Justice Sunita Agarwal in July this year because there weren’t any women HC CJs in the country.
Responding to a question by Lok Sabha MP Asaduddin Owaisi on the representation of weaker sections among high court judges, Union law minister Arjun Ram Meghwal said in July that appointments to the higher judiciary are made under Articles 124, 217, and 224 of the Constitution, which don’t provide reservation “for any caste or class of persons.”
Despite this, the Centre requested that HC CJs duly consider suitable candidates who are women, minorities, scheduled castes, or tribes, among others, while sending proposals for appointing judges, to “ensure social diversity” in the process, Meghwal said.
Before this, in February, while responding to a question by Rajya Sabha MP Rakesh Sinha on the strength of female judges and lawyers in the high courts and the Supreme Court, the then Union Law Minister Kiren Rijiju revealed, “As on 31.01.2023, in the High Courts, against the sanctioned strength of 1108 Judges 775 Judges are working out of which 106 are women Judges and 669 are male Judges. The percentage of women Judges is 9.5% of the total strength and 13.6% of the working strength of High Court Judges. At present no women Chief Justice is working in any High Court of the country.”
Speaking of the subordinate judiciary, a 2018 study by the Vidhi Centre for Legal Policy found that while representation of women in the lower judiciary is relatively higher at 27%, it hit a glass ceiling in higher appointments — as district judges and subsequently at the high court level.
What is the situation for the lower judiciary?
In its 2018 study on the representation of women in the lower judiciary, Vidhi found that there were 15,806 judges in the lower judiciary between March and July 2017.
The report found that only in three of the smallest states — Goa, Meghalaya, and Sikkim, with a collective total of a mere 103 judges — did the percentage of women judges cross 60%. Barring Telangana and Puducherry, the percentage of women judges remained below 40% for all other states, regardless of geography, cultural considerations, or other differences.
Though there is no reservation for women in the higher judiciary, several states have provided quotas for women in the lower judiciary, including Andhra Pradesh, Assam, Bihar, Chhattisgarh, Jharkhand, Karnataka, Odisha, Rajasthan, Tamil Nadu, Telangana, and Uttarakhand, which provide between 30% and 35% of the total seats for which recruitment is done through direct appointment.
More recently, another study titled the India Justice Report (IJR) 2022 revealed that “only 13% of High Court judges and 35% of Subordinate Court judges are women.” At the level of district courts, Goa had the highest, or 70%, of women judges, while Meghalaya (62.7%), Telangana (52.8%), and Sikkim (52.4%) came close behind, the report said
So why is there a lack of Indian women’s representation in the judiciary?
Reasons for the lack of female representation in the judiciary include an entrenched “old boys’ club mentality”, which makes it harder for women to lobby for judicial posts.
Speaking to The Guardian in 2017, senior advocate Indira Jaising pointed out the small courtesies offered by men to other men, such as the chance to have their cases heard first, the friendly body language of male judges when speaking to male lawyers and said, “It gets to be depressing not to have a community to bond with. [Women] are increasing now, but they’re also not very bonded, they are isolated.”
Besides this, factors like sexual harassment, clients not trusting women advocates with high-stake cases and lack of supportive infrastructure, from toilets to maternity leave also contribute to higher attrition rates of women in judiciary and litigation as well.
The lower judiciary is better than the High Court and Supreme Court. That’s perhaps because entry to the lower judiciary is through an examination, while the High Court and Supreme Court are decided by the collegium which works through informal channels of picking candidates.
In April 2021, while hearing an application filed by the Supreme Court Women Lawyers Association for intervention in the case ‘M/s PLR Projects Pvt Ltd v Mahanadi Coalfields Ltd’, where the issue of unfilled vacancies of HC judges was being considered, former CJI SA Bobde underscored that appointments are not an institutional issue but a matter of finding the right woman.
“Chief Justices of high courts have stated that many women advocates, when invited to become judges, declined the offer citing domestic responsibilities about children studying in Class 12 etc,” Bobde said.
Several female members of the bar responded, including Bombay-based advocate Veena Gowda, who said, “There are many men who refuse judgeship because they have a successful practice and do not want to take a cut in their earnings. But has that stopped the collegium from seeking more men and making them judges?”
Written by Khadija Khan
Source: Indian Express, 26/11/23
