Discussion Around Women’s Representation in the Judiciary Again: Genuine Talk or Empty Noise?

In this piece, the author discusses whether the time for the first female Chief Justice of India is actually here, and even if it is, if it would be enough to bring gender parity. They look at recent trends and the process of appointment of judges in India to show how patriarchy has seeped into all aspects of the judiciary.

By Shubhra Agrawal, a third-year student at NLU, Orissa.

The female population of India, the second most populated nation in the world, is around 48.5%. The percentage of women judges, however, is merely 7% in higher judiciary and 29% overall. Over the years, we have witnessed an improvement in many qualifiers of women empowerment, like literacy, economic participation, involvement in decision making, etc. Whether the advancement has kept pace with the evolving needs and times is a separate question. In the same period, we have also observed a stark rise in crime against women. The highs and lows form a bleak average for women’s prevailing position in society.

In such a scenario, it is not only fair but also crucial to have a solid representation of women in the judiciary.  Justice Indu Malhotra, in her farewell speech in March 2021, stated in this regard, “society benefits when gender diversity is found on the bench”. Victims of sexual violence also feel more comfortable and confident to file complaints and seek justice when they find adequate number of women justices in Courts. This aspect of the problem was given due regard by Attorney General K.K. Venugopal in his written submissions in a Special Leave Petition filed by women lawyers against Madhya Pradesh High Court’s order. In this case, the accused, arrested on charges of molestation, was granted bail on the condition of getting a ‘Rakhi’ tied by the victim.

Incidents like these, work as pressing reminders as to why we need more women in the judiciary. This is not to say that having women judges on the bench would always guarantee a fair judgement. But the callousness and lack of empathy depicted in the judgements like the one above could significantly reduce. Alas, due to the rarity of gender inclusive benches, one often comes across such cases. This piece aims at ascertaining the underlying cause behind the scant number of women judges. It is divided into four sections. The segments discuss the latest developments on the matter, the probability of finding promise in them, the identification of the key issues, and the solutions for the same.

ONGOING DISCUSSIONS

Just a few days ago, the Supreme Court Women Lawyers Association (SCWLA) had moved to the Supreme Court seeking an order issuing directions to appoint more women lawyers, who are competent and deserving, in the Higher Courts of India. This application was filed as an intervention in the case of M/s PLR Projects Pvt Ltd v. Mahanadi Coalfields Ltd, in which the decision concerning unfilled vacancies for the posts of judges was pending then. The contentions raised by the SCWLA presented many hard-hitting facts. These ranged from a dreadful ratio of women judges overall to only eight women in the Supreme Court since independence. Citing Articles 14 and 15(3) of the Constitution that promote and safeguard equality on the basis of gender, the application reiterated the need to have adequate representation of meritorious women. For the same, the association asked to issue a direction to the government to frame and release the MoP (Memorandum of Procedure) for such appointments, laying down specific guidelines for promoting and ensuring women’s representation in judgeship.

The matter was heard by the bench headed by Chief Justice S.A. Bode, and many favourable statements were given. One garnered the most attention, where he asserted “the time has come for a woman to be the Chief Justice of India”. Undoubtedly, that’s the kind of sentiment that is needed for the much-awaited change to transpire. Not only the CJI, but certain other judges and persons in positions of power have also contributed to this discussion recently. Justice R.F. Nariman, while delivering a lecture on ‘Great Women of History’ at the 26th Justice Sunanda Bhandare Memorial Lecture, also stated “the time for the first woman chief justice of India won’t be very far off”.

Now, these deliberations may give the impression of having hit the nail on the head. But in reality, they address only a part of the problem and that too, not substantially. Not having a woman Chief Justice in all these years is only demonstrative of a deeper and larger underlying issue. So, appointing a woman CJI would not in itself solve the problem. We must address the looming problem of gross underrepresentation of women in most spheres of the judiciary, and especially where the procedure for selection is non-transparent and subjective. This can be established by analysing and comparing the representation of women in the lower courts and higher Courts.

According to a study conducted by the researchers at Vidhi Centre for Legal Policy, 36.45% of judges and magistrates admitted through an entrance examination, between 2007 and 2017 in 17 states, were women. In comparison, a mere 11.75% of women joined as district judges through direct recruitment over the same period, according to data from 13 states. Besides, the percentage of women judges keeps decreasing as we go higher up the judicial structure, as per the 2018 Report of the Vidhi Centre. This shows that where transparency in the process of selection is less, representation of women is less.

This is also indicated by the second edition of the ‘India Justice Report’ of Tata Trusts. The 2020 report indicates that over a two-year period, on average, the proportion of women judges in the higher courts improved marginally from 11 per cent to 13%.  In lower courts, the participation went up from 28% to 30%. 12 high courts and 27 lower courts raised their quota of women judges according to this report.

GENUINE TALK OR EMPTY NOISE?

In the matter filed by SCWLA, promising statements were made, but the bench ultimately refused to pass any order ensuring affirmative action for fulfilment of the demands. Since the application filed by women lawyers was through means of intervening in a different matter, the CJI delayed the request by stating “We don’t want to issue any notice at now, we don’t want to complicate things”. This means that the requests made were given verbal support, but not tangible assurance.

Additionally, the CJI also remarked that he was told many women lawyers refuse to accept judge’s posts citing domestic responsibilities. This line of reasoning, and in some cases, assumption, is not new. It is often offered as a glorified justification for the low representation of women. A little more than a passing remark by the CJI would be required to adjudge upon the credibility of this reason. Either way, it cannot justify the massive gap in the ratio of male to female judges appointed in High Courts.

If we were to talk numbers, there are only 82 woman judges, across 26 High Courts, out of the total 1,079 judges. In this context, the statement, if true, acts as admission to the unnerving burden of domestic charge put on women. To offer it as an argument against a women’s body seeking more representation is ironic.

The fact is that if offered,  many women lawyers are ready to take up the responsibility. The reasoning offered by the CJI flows from women’s subjugation within their domestic space and is fraught with prejudice. It further vindicates the issues of accountability and answerability, garbed as external hindrances.

Understandably, this discussion would amount to something only when written assurances are given by the judiciary and the executive in form of a tangible order or legislation. These were, therefore, the primary demands of the SCWLA.

WEIGHING ALL POSSIBILITIES

On the representative front generally, women have made strides in holding many positions of power. Having a woman chief justice of the Supreme Court would add one more triumph to the list. But the question that must be asked is whether this would just be symbolic tokenism in the name of equality or empowerment? Or could the women at the helm of the SC actually help in pushing for significant changes?

Simply appointing a woman CJI wouldn’t absolve the system and the decision-makers from further accountability. After all, it is one thing to appoint a woman head that helps paint a rosy picture of women’s representation, and another to make ground-level changes.

Going by the news doing rounds currently, the collegium may recommend the name of senior judge B.V. Nagarathna from the Karnataka High Court, who would become the first woman chief justice of India in 2027, if she is elevated now. So yes, there is hope for this notable development to take place soon. But for how long will we have to sit and wait for the next woman CJI after that? It wouldn’t be as fulfilling to have one woman CJI who’s grasp over the position we can boast about for a long time to come after that, like we boast of having had a woman prime minister- Indira Gandhi, and a woman President- Pratibha Patil.

Make no mistake, seeing the first woman Chief Justice of the Supreme Court would be a laudatory moment for India. Only, it should be treated as a beginning to the sea of changes that require to be brought into the judicial system and not as the ultimate goal.

REQUIREMENT FOR SYSTEMIC CHANGE

Following the collegium system, the five senior-most judges of the Supreme Court including the Chief Justice, make appointments to the Supreme Court and High Courts. Out of the eight-woman judges that the Apex Court has seen in more than seventy years of independence, only two, namely Justice Ruma Pal and Justice Banumathi, have been a part of the collegium. Currently, there is only a single woman judge at the Supreme Court, and none in the collegium.

Needless to say, the system presiding over appointments of Judges must be independent, accountable, and transparent. In 2015, by striking down the NJAC Act in the judgment of Supreme Court Advocates on Record Association vs Union of India, the Apex Court managed to stray away from executive control. Through this, it ensured its independence.

In the same judgement, the Supreme Court had also directed the government to frame a MoP for the appointment of judges in High Courts and Supreme Court. But even after six years to the judgement, there has been no development on this front. Therefore, the goal to achieve accountability and transparency in the system still remains to be fulfilled. These are also the twin prerequisites to ensure that fair chance is given to women justices in selection through the collegium system.

Ultimately, the Supreme Court and High Courts’ collegium system is filled with senior male judges. The data shows that it’s this system which is to blame for the lower representation of women. One cannot rule out the possibility of inherent patriarchal conditioning, and conscious and subconscious prejudices, playing a role in appointments.

The people in positions of power are also a product of society and hence are likely to carry and reflect societies’ beliefs and fancies. Hence, proper framing and implementation of MoP, would leave less scope for subjectivity and individual biases creeping in. It would ensure that the decision-makers or the members of the collegium exercise their discretion wisely and carefully.

We have witnessed a long history of nonchalance and empty promises on this issue. More often than not, these debates spring up and die down, with no significant results. Momentous and permanent change can only come by revamping the system from top to bottom. The demand is very simple and can be fulfilled by giving recognition to long-overdue reforms in the appointment structures. One of the most important objectives should be to strive for gender parity in courts. If done right, the same can reflect in the decision making and overall voice of the Supreme Court.

Striving for improving gender parity in Courts is an important objective and a positive outlook towards this goal, if not absolute dedication, would go a long way in the general upliftment of women in India.

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