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Representation of Women in Judiciary

Representation of Women in Judiciary
- Navya Dubey, Institute of Law, Nirma University

Introduction :- 

Many people have this embedded misconception that women in judicial system can only practice in family courts. Judiciary in India, in words of Justice Sridevan is an “old boys club”. Time and again the standing of judiciary has been questioned. Supreme Court only has two women judges as opposed to a sanctioned strength of 34 judges. As of now, Justice Indira Banerjee is the only woman judge as opposed to 29 male counterparts. Furthermore, there has never been a female Chief Justice of India. These figures hold a mirror to the abysmal condition of underrepresentation of women in judiciary. Since its inception, only eight woman judges have been elevated to the Supreme Court. After 40 years of the establishment of Supreme Court, Justice Fathima Beevi was appointed as first woman judge of Supreme Court in 1989.

Ongoing Discussions :- 

Retirement of Justice Indu Malhotra from the Supreme Court stirred the debates around gender sensitization and equal representation in judiciary. Justice S.A Bobde heard an application filed by Women’s Lawyers Association seeking equal representation of women in higher judiciary. The application was filed with regard to the case of M/s PLR PROJECTS PVT LTD. V MAHANADI COALFIELDS LTD. The Women’s lawyer Association put forth the data showing blatant imbalance between the number of female and male judges practicing in higher judiciary.

In response to this, the former chief justice said that women decline the position of judges citing domestic responsibilities and duties. However, he did mention the dire need of Woman Chief Justice in India. The application reiterated the need to have equal and adequate representation of women in judiciary by citing Articles 14 and 15(3) of the Constitution that ensures equality on the basis of gender. The association also requested government to frame Memorandum of Procedure (MOP) for appointments, laying down concrete contours and guidelines for promoting women’s representation. Recently, Justice R.F Nariman also asserted “ the time for the first woman chief justice of India won’t be very far off”. These statements and deliberations by prominent personalities might give a very rosy picture but they address only a part of problem. The larger problem of the problem can be addressed by analyzing and establishing a comparative study of representation of women in lower and High courts.

According to Vidhi Legal Policy Report, lower judiciary has 27 per cent of female judges, high courts have only 10 per cent of female judges and Supreme Court is not even at 1 per cent. This data reeks of the abysmal condition of judiciary. According to a survey conducted by Vidhi Centre for Legal Policy, an independent think- tank undertaking legal research and judicial reforms, revealed the conditions of washrooms in the court complexes. Women judges who are inducted as magistrates are also made to transfer every three years. This is another blotch that hampers the path to fill the gender gap. There are defined inherent gender roles in Indian Society which makes it hard for women to venture out and break the glass ceiling.

Female Judges- Integral in Judiciary and courts of Law :- 

Presence of higher proportion of women judges is more integral as they are more empathetic compares to men. The judiciary, being an integral part of democracy should not stifle female voices. Though the number of females enrolled in undergraduate programme for law is equal to males, not many women lawyers get elevated to senior position. This gender disparity can only be tackled by internalizing gender sensitization and appointing women at all levels of judiciary. This, in no way, suggests that there should be reservation for women. There are many legislations which have provision to uplift women through positive discrimination.

The female population of India stands at 48.5 per cent. However, the percentage of women judges is merely 29 per cent. There have been significant and tangible improvements in status of women in society in terms of literacy, economic participation, voting rights etc. In sharp contrast, we have also witnessed rising rates of crime against women. This grim scenario calls for a solid representation of women in judiciary. Gender sensitization also provides a diverse perspective to judgments. Justice Indu Malhotra in her farewell speech asserted that justice will be served if gender diversity is found on the bench.

In a recent case, a Special leave Petition was filed by women lawyers against the order of Madhya Pradesh High court. In this case, the accused was granted bail on the condition of rakhi being tied to hum by the victim, thus, nullifying the crime. Grave incidents like these loom as reminders to induct more women in the judiciary. This, by no means, ensure that having women judges would ensure fair judgment but the utter callousness and lack of empathy reflected in the judgements could significantly reduce.

Weighing and analyzing all possibilities :- 

On the representative side, women have many feats in holding positions of power. Having a woman chief justice of Supreme Court would add to the list of feats and achievements. But are these feats mere tokenism under the garb of equality or empowerment? Or could the women in charge of positions actually help in making decisive changes?

Simply inducting a woman CJI would not absolve the judiciary from the responsibility and accountability it holds. Reorientation and ground- level changes are required to convert the rosy picture into reality. We should bear in mind that seeing the first Woman Chief Justice would be an overwhelming moment for India. But this should be treated as a beginning to sea changes that must be brought and not as the final goal.

Systemic Change- Need of Hour :- 

The system presiding over appointment of judges and related affairs must be transparent in its conduct. Back in 2015, NJAC Act was struck down in the judgment of Supreme Court Advocates on Record Association vs Union of India. Through this, the Apex Court detached itself from executive. This guaranteed the transparency. In the same judgment, the Apex Court also asked government to frame Memorandum of Procedure laying the guidelines for appointment of judges in High courts and Supreme Courts. However, even after six years there is little to no development on this front. Therefore, the avowed objective of achieving accountability and transparency remains unfulfilled. These are also the prerequisites to ensure equal representation of women justices in selection through collegiums system.

It is the dynamics prevailing in these courts that are responsible for the lower representation of women. The collegium system is filled with male judges. One cannot entirely ignore the possibility of embedded patriarchal conditioning, and subconscious prejudices being a significant factor in appointments. The people holding positions of power are also a part and parcel of society and are likely to translate the same old societal beliefs and notions. Hence, defining concrete contours of Memorandum of Procedure (MOP) would leave less scope for loophole or individual biases. This would ensure well – informed decisions and policies.

India has witnessed a long history of empty and utopian promises on this issue. Momentous change can only come through revamping the whole system. This demand can be fulfilled by giving due – recognition to women- centric reforms. Our country, as a whole unit should strive for gender parity in judiciary. These small steps would go a long way in the general and overall upliftment of women in India.


References :-

[1] PLR Projects V. Mahanadi Coalfields, AIR 2019 SC 2419.
[2] Supreme Court Advocate on Record Association V. Union of India, AIR 1993 SC 1303.
[3]< https://www.livelaw.in/top-stories/society-benefits-when-gender-diversity-is-found-on-bench-justice-indu-malhotra-in-farewell-speech-171101> accessed 5 June 2021.
[4]< https://thewire.in/law/madhya-pradesh-high-court-bail-raksha-bandhan> accessed 5 June 2021.
[5]< https://www.livelaw.in/top-stories/greater-women-representation-in-judiciary-will-help-balanced-approach-in-sexual-violence-cases-ag-kk-venugopal-166665 > accessed 5 June 2021
[6]< https://www.article-14.com/post/the-higher-judiciary-s-gender-representation-problem >accessed 5 June 2021
[7] < https://www.livelaw.in/top-stories/many-women-lawyers-declined-judgeship-citing-domestic-responsibilities-cji-sa-bobde-172616 > accessed 5 June 2021
[8]< https://theprint.in/opinion/fewer-indian-women-in-higher-judiciary-blame-high-court-collegiums-suggests-data/265747/ > accessed 5 June 2021