Representation of Female Judges in the Indian Judiciary

“After 75 years of Independence, one would expect at least 50% representation for women at all levels, but I must admit, with great difficulty, we have now achieved a mere 11% representation of women on the Bench of the Supreme Court.”^[1]

CJI N.V. Ramana.[2]

Introduction

In 2021, India enthusiastically celebrated the Azadi ka Amrit Mahotsav, the 75th year of Independence. Very soon, India will commemorate the 75th anniversary of the commencement and enforcement of the Indian Constitution – the very document that promises equality in all senses. However, it is worth noting that despite Indian women achieving remarkable milestones, we have yet to witness the appointment of a female Chief Justice of India (CJI).

The judiciary is a crucial platform for citizens to seek redressal for injustice and inequality. However, there has been little discussion about the disparity, particularly inadequate representation of women, within the judiciary itself. While notable advancements have been witnessed in certain domains, it is apparent that additional endeavours are imperative to redress the extant disparities and guarantee women equitable and fair access in the Judiciary. It took 39 years since the establishment of the Supreme Court in 1950 for the first female judge to be appointed in 1989. Since then, eleven women have been sworn in as judges in the Supreme Court, including those sworn in on August 13, 2021. Presently, the Supreme Court comprises two women judges, Justice Nagarathna and Justice Bela Trivedi. Last year, the Supreme Court of one of the biggest Democracies in the world had four sitting Women justices, which is all-time high, a historic pinnacle for the Indian Judiciary.

A peek in the history

No battle has been a cakewalk for Womankind, history stands a witness to this, and representation in the Indian Judiciary is no exception. It started with Cornelia Sorabjee, who set the wheels in motion. She valiantly waged a historic struggle to attain the distinction of becoming the first woman to graduate from Bombay University. Subsequently, she pursued a Bachelor of Civil Law at Oxford University in 1892.^[3] Further, in 1916, Regina Guha[4] challenged the exclusion of women from the legal profession by applying for the enrolment of women as pleaders under Section 6 of the 1879 Legal Practitioners Act at the Calcutta High Court. Regrettably, an all-male bench rejected her petition, citing the Act’s intention to cater to well-established practitioners which translate to Men. They also relied on the precedent of Bebb v. Law Society,[5] which denied women enrolment as solicitors.^[6] In the Second Person’s case[7] at the Patna High Court, Sudhanshubala Hazra, in 1921, confronted the same issue. Despite the Court reiterating its position that women were not recognized as “persons” in the eyes of the law, Hazra persisted. Eventually, her efforts led to the passage of the 1923 Legal Practitioners (Women) Act, which overturned the judgments of Regina Guha and Sudhanshubala Hazra, granting women the right to practice law as legal practitioners.

The efforts of the aforementioned pioneering women in the legal field paved the way for Anna Chandy, who achieved the significant milestone of becoming the first woman High Court judge in 1959. She is considered one of the earliest women to serve as a judge in the Anglo-Saxon jurisdiction. On February 9, 1959, she was officially sworn in as a member of the High Court of Kerala and served in this esteemed position for an impressive tenure spanning over eight years, concluding on April 5, 1967.[8] However, it took until 1989 for the appointing authority to elevate Fathima Beevi as the first female judge to the Supreme Court.

Let’s talk Numbers

Regrettably, in the current scenario, only three of the Supreme Court’s 34 are women. It was in 2013 when the Supreme Court had its first all-female bench, followed by one in 2018 and recently in December 2022. Justice Malhotra was the first woman to have risen from the bar in April 2018. As mentioned above, the Indian Supreme Court has never been led by a Female Chief Justice. However, the silver lining to the languishing grey cloud, Justice B.V. Nagarathna, is slated to become the first woman CJI in 2027.

To comment upon the female representation in the High Courts, it is currently 13.45%.[9] Among the twenty-four High Courts, 58.3% have never had a female Chief Justice, only five courts have had two female Chief Justices (20.83%), while four courts have had one female Chief Justice (16.67%) in the history of the Republic of India.[10] Kerala is the only Court with three female Chief Justices, while on the other hand, Bihar, Tripura, Manipur, Meghalaya, and Uttarakhand have not had a single female judge in their High Courts. Overall, women have held only 18 out of 632 Chief Justice positions in High Courts (2.85%). According to the IJR[11], there is a gradual increase in the presence of women judges in lower courts; however, the proportion of women judges in higher courts continues to be significantly limited. Between 2020 and 2022, the High Courts’ saw a little less than two percentage points increase in women’s representation, with Telangana increasing from 7.1 to 27.3% while, in some States, the percentage of women in the High Courts has dropped abysmally; to name a few – Andhra Pradesh went from 19 to 6.7% followed by Chhattisgarh which slumped from 14.3 to 7.1%.[12]

The following table shows comparison of Total number of Judges and total number Female Judges in each of the 25 High courts in India:

The lower judiciary, surprisingly, demonstrates a relatively better track record.^[38] There are more women judges at the district court level than at the High Court level, with 35% of the total number of judges at the district court level and only 13% of judges in the High Courts across the country comprising of women, the India Justice Report (IJR) 2022 has revealed.[39] While the share of women judges remains uneven across States, Goa with 70%, has the highest percentage of women judges at subordinate courts, followed by Meghalaya and Nagaland at 63% each. In several states of India, a horizontal reservation of 30% is in place for women in the lower judiciary. Notably, the number of women entering the lower judiciary in these states surpasses the mandated 30%, thus highlighting their selection based on merit.[40] This observation serves as a rebuttal to the claim made by some that the underrepresentation of women judges in courts is attributed to a perceived lack of talent and requisite skills.

From Individual efforts to Collective Responsibility

It’s long overdue that we address and acknowledge the systematic procedure adopted by the Lower Judiciary for appointments of Judges. Consequently, the aforementioned statistics show how the Female representation in the subordinate courts is comparatively higher. However, as we move towards the High courts and the Supreme court, the parameters for appointment become vague. There are no standard criteria and, therefore, direct elevation from the bar to the bench is the norm. Resultantly, factors such as Patriarchal dominance, systematic discrimination and “glass ceiling” hamper the upwards mobility of women in the Judiciary.[41]

The most disturbing fact about this institutional tragedy of lack of inclusion of women in the Indian Judiciary, particularly the higher judiciary, is – Several reports have, time and again, stated that Women make up over half of those who apply to law school whether through the Common Law Admission Test for National Law Universities or through State/Central Universities.^[42] Yet their presence in the decision-making positions is disconcerting.

Commenting upon the inadequate representation of Women in the judiciary and factors abetting the same, Justice B.V. Nagarathna stated, “Women in the legal profession are subjected to double standard and a double bind. They risk criticism for being too “soft” or too “strident,” too “aggressive” or “not aggressive enough.” Further, what appears ‘assertive’ in a man often appears ‘abrasive’ in a woman.” Justice Nagarathna went on to highlight how women lawyers frequently encounter a disparity in the presumption of their competence and dedication compared to their male counterparts. This issue becomes even more pronounced for women who belong to marginalized groups, including disabled women, women from the LGBTQIA+ community, and others. Justice Nagarathna also emphasized that when women are underrepresented, the most psychologically convenient explanation is often attributed to their perceived lack of necessary qualifications and commitment.[43]

As per Chief Justice D.Y. Chandrachud, a contributing factor to the inadequate representation of women is the persistence of preconceived stereotypes that deter law chambers from recruiting young female lawyers. He emphasized that these chambers harbor assumptions that women may be unable to commit extended work hours due to familial responsibilities, resulting in many competent female candidates being denied initial opportunities solely based on gender biases and prejudiced notions.[44]

Conclusion and Way Forward

I am sometimes asked, “When will there be enough?”, and my answer is “When there are nine”, People are shocked. But there’d been nine men and nobody has ever questioned about that.”

Ruth Bader Ginsburg. J[45]

In order to address the issue of gender disparity and promote gender equality in the legal profession, several measures can be implemented. Such as conducting an annual gender audit of all the courts in the country with the results published on their official websites, thus enhancing transparency and accountability. Additionally, mobilizing women advocates’ associations, and groups would equip women advocates with the necessary skills and would provide them with leadership to address the hurdles faced by them. Moreover, the appointment of more women as arbitrators and amicus curiae by courts and appointment of a considerable number of women advocates as law officers and litigators by the State would help a lot.[46] Lastly, compulsory gender sensitization programs for advocates and judges at all levels of the judiciary would work wonders in fostering a more inclusive and equitable legal system.

The clock is ticking. It is high time that the Judiciary take conscious efforts to unlearn the above-described biases. The defenders of the Constitution must realize that Empowerment of Women is a constitutional mandate and not merely symbolic, but substantive representation of women in the Judiciary is the need of the hour. The way out of this murky puddle of ignorance is constant and collective effort. Cumulative efforts of both, the Bar and the Bench, are indispensable to make the Court Rooms inclusive and diverse. Because, at the end of the day, we don’t want a Judiciary which fails to practise what it preaches.

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[1] Rajagopal, Chief Justice of India is unhappy with less representation of women at the top, The Hindu, 2021<https://www.thehindu.com/news/national/chief-justice-of-india-unhappy-with-less-representation-of-women-at-the-top/> accessed 13 June, 2023.

[2] 48^th Chief Justice of India.

[3] Cornelia Sorabji, Who was India’s First Female Lawyer? The Independent, 15 November 2017. https://www.independent.co.uk/ news/world/asia/cornelia-sorabji-india-female-lawyer-first-woman-google-doodle-feminism-oxforduniversity-a8055916.html.

[4] Regina Guha, In re, (1916-17) 21 CWN 74.

[5] Bebb v. Law Society., (1914) 1 Ch. 286.

[6] Chouhan, Aishwarya., Structural and Discretionary Bias: Appointment of Women Judges in India, The Georgetown law journal. 2020. 21. 10.2139/ssrn.3482483.

[7] Sudhansubala Hazra, In re, 1921 SCC OnLine Pat 20.

[8] Kumar, A. P., Absence of Diversity in the Higher Judiciary. Economic and Political Weekly, 2016, 51(8), 10–11. http://www.jstor.org/stable/44004404.

[9] https://doj.gov.in/list-of-high-court-judges/.a

[10] Sonal., Gender Equality in The Bar And The Bench – The Need For A Movement at The Bar For Transformational Change, Live Law, 15 August 2021.http://www-livelaw-in.gnlu.remotlog.com/columns/gender-equality-in-the-bar-and-the-bench-179598.

[11] https://indiajusticereport.org/.

[12]Chouhan, Aishwarya., Structural and Discretionary Bias: Appointment of Women Judges in India, The Georgetown law journal. 2020. 21. 10.2139/ssrn.3482483.

[13] https://doj.gov.in/allahabad-high-court-4/.

[14] https://doj.gov.in/andhra-pradesh-high-court-5/.

[15] https://doj.gov.in/bombay-high-court-5/.

[16] https://doj.gov.in/calcutta-high-court-5/.

[17] https://doj.gov.in/chhattisgarh-high-court-5/.

[18] https://doj.gov.in/delhi-high-court-6/.

[19] https://doj.gov.in/gauhati-high-court-5/.

[20] https://doj.gov.in/gujarat-high-court-5/.

[21] https://doj.gov.in/himachal-pradesh-high-court-5/.

[22] https://doj.gov.in/high-court-of-jammu-kashmir-and-ladakh-4/.

[23] https://doj.gov.in/jharkhand-high-court-5/.

[24] https://doj.gov.in/karnataka-high-court-5/.

[25] https://doj.gov.in/kerala-high-court-5/.

[26] https://doj.gov.in/madhya-pradesh-high-court-5/.

[27] https://doj.gov.in/madras-high-court-6/.

[28] https://doj.gov.in/manipur-high-court-5/.

[29] https://doj.gov.in/meghalaya-high-court-5/.

[30] https://doj.gov.in/orissa-high-court-5/.

[31] https://doj.gov.in/patna-high-court-7/.

[32] https://doj.gov.in/punjab-haryana-high-court-5/.

[33] https://doj.gov.in/rajasthan-high-court-5/.

[34] https://doj.gov.in/sikkim-high-court-4/.

[35] https://doj.gov.in/high-court-for-the-state-of-telangana-5/.

[36] https://doj.gov.in/tripura-high-court-5/.

[37] https://doj.gov.in/uttarakhand-high-court-5/.

[38] Gender Disparity in the Indian Judicial System, 2.1 JCLJ (2021) 1057.

[39] https://indiajusticereport.org/.

[40] Soibam Rocky Singh., Judicial glass ceiling: More women judges at districts courts than HCs, The Hindu, 4 April, 2023. https://www.thehindu.com/news/national/judicial-glass-ceiling-more-women-judges-at-districts-court-levels-than-hcs/article66697740.ece.

[41] Abhinav Chandrachud., Age, Seniority, Diversity, Frontline, 3 May 2013. https://frontline. thehindu.com/cover-story/age-seniority-diversity/article4613881.ece.

[42] Siddiqui and George, Indian Judiciary: How Have Women and Gender Minorities Lawyers Fared So Far? Feminism in India, 2021. <https://feminisminindia.com/2021/02/17/judiciary-indian-womxn-lawyers/> accessed 13 June, 2023.

[43] https://www-livelaw-in.gnlu.remotlog.com/news-updates/justice-bv-nagarathna-inclusion-more-women-judiciary-decision-making-process-responsive-inclusive-participatory-224517.

[44]https://www-livelaw-in.gnlu.remotlog.com/top-stories/cji-chandrachud-law-chambers-sceptical-about-recruiting-young-women-advocates-due-to-stereotypes-should-provide-equal-opportunity-224782.

[45] Prominent Jurist and Associate Justice of the Supreme Court of the United States of America.

[46] http://www-livelaw-in.gnlu.remotlog.com/columns/gender-equality-in-the-bar-and-the-bench-179598.