Discussion regarding lack of representation of women in Indian judiciary

Discussion regarding lack of representation of women in Indian judiciary-
For the first time in India, there is a possibility of a woman judge becoming the Chief Justice. Justice BV Nagarathna will get this opportunity in the year 2027. This is a welcome scenario.
However, with this once again the big issue of under-representation of women in the judiciary has come to the fore.

Status of representation of women in the judiciary

Representation of women in the Supreme Court: The first woman judge (Justice Fatima Biwi) in the Supreme Court (SC) was appointed in the year 1989-39 after the Supreme Court came into existence. Since then only 10 women have been appointed as judges in the apex court.

Women Representation in High Courts: The representation of women judges in High Courts (HCs) has also not been very good. Overall, women judges constitute only 11% of High Court judges.

In five high courts (Patna, Meghalaya, Manipur, Tripura, and Uttarakhand), no woman has ever served as a judge, while in six other states her share was less than 10%. The percentage of women judges was relatively high in the Madras and Delhi High Courts.

Women Representation in District Courts: The representation of women in the judiciary has been somewhat better in lower courts where 28% of judges were women as of 2017. However, in Bihar, Jharkhand, and Gujarat their numbers were less than 20%.

Because of the low representation of women

Opaque Collegium System: Due to the method of recruitment through entrance exams, more and more women enter the lower judiciary at the entry-level. However, a collegium system prevails in the higher judiciary, which remains increasingly opaque and therefore more likely to exhibit bias.

Lack of Women’s Reservation: Reservation policy for women is implemented in the lower judiciary in many states, but this opportunity does not exist in High Courts and Supreme Court.

Reservation quota for women is perhaps one of the many factors that encourage and facilitate more women to enter the system.

In states where other supporting factors are sufficiently present, the women’s quota probably helps bridge the gender representation gap.

Despite the fact that the bill to give 33 percent reservation to women in Parliament and state legislatures has not been passed to date, all major political parties have publicly supported it.

Family Responsibility: Factors such as age and family responsibility also influence the promotion of women judges from subordinate judicial services to high courts.

A large number of women join service as judges very late, thereby eliminating their chances of reaching the High Courts or the Supreme Court.

At the same time, many women are unable to focus more on their development as judges because they are more focused on their families after entering the service.

Lack of an adequate number of women in the field of litigation: Since advocates promoted from bar to bench constitute a significant proportion of judges in high courts and Supreme Court, women are left behind here too.

It should be noted that the number of women advocates is still small, except for a small group from which women judges can be elected.

While there is no official data available on the number of women engaged in the legal profession, a 2020 news report estimates that women constitute only 15% of all enrolled lawyers in the country.

During the last 70 years, no serious effort has been made to give adequate representation to women in the High Courts or the Supreme Court.

Women constitute about 50% of the total population in India and there are a large number of women available for promotion to the bar and judicial services, but despite this, the number of women judges has remained low.

Importance of high female representation

Motivation for more women to get justice: More number of women judges and their greater visibility can motivate more women to reach the courts to get justice and get their rights.

Although this is not applicable in all cases, the judge being a woman can play an important role in giving more courage to the female litigant.

For example, if a transgender woman is available as a judge to hear the case of transgender women, it will certainly increase the confidence of the litigants.

Incorporation of different perspectives: The representation of different marginalized/deprived sections of the people in the judiciary will surely prove to be valuable because of their different life experiences.

Diversity in the Bench will certainly bring an alternative and inclusive approach to statutory interpretations.

Increase in judicial rationality: Increase in judicial diversity enriches and strengthens the capacity of judicial rationality to incorporate and respond to diverse social contexts and experiences.

It can improve the justice sector’s responses to the needs of women and marginalized groups.

Road ahead

Change in patriarchal mindset: Removal of patriarchal mindset is the need of the hour and the need of the hour is to recommend and approve the names of those to be promoted as High Court judges and with consideration of women advocates and district judges eligible for the promotion.

Ensure greater representation of women. Unless women are empowered, justice cannot be done to them.

Provision for Reservation: It is high time that those playing a role in the appointment of judges in the High Courts and Supreme Court should understand the need to give adequate representation to women in the judiciary.

In fact in the higher judiciary also horizontal reservation should be provided for women without compromising on merit like in the subordinate judiciary.

Using Vacancies As Opportunity: There are more than 40% of vacancies in High Courts. By using this as an opportunity, the lack of representation of women can be overcome.

Removal of gender discrimination: This will be a step in the right direction and will allow for greater social and gender harmony in the judiciary.

Any step taken in this direction will be a benchmark for the society where more and more girl students will come forward and take up law as a profession.

Conclusion

To be truly diverse, the Indian judiciary not only needs representation from different gender identities (including trans and non-binary), but also judges from different socio-economic, religious, and regional backgrounds.

This would also mean that judges would be appointed from doubly marginalized sections so that even the voices of the ‘crossroads’ get a chance to be represented.