GENDER DIVERSITY IN HIGHER JUDICIARY: A NEED

SUBMITTED BY: SHUJA HAIDER RIZVI

COURSE INSTRUCTOR: DR. MS. ARPITA KAPOOR
ENROLLMENT NO: A8101821120
LLM
 ACKNOWLEDGEMENT

I have endeavoured to attempt this project. However, it would not have been feasible without the
valuable support and guidance of PROF. DR. ARPITA KAPOOR. I would like to extend my sincere
thanks to her.

I am also highly indebted to Amity University, Lucknow Library Staff, for their patient co-
operation as well as for providing necessary information & also for their support in completing
this project.
Index

 Abstract

 Introduction

 State of Women Representation in Judiciary

 Reasons For Low Women Representatives

 Significance of High Women representation

 Solutions

 Conclusion
Abstract

After 74 years of independence, higher judiciary of India paints a gory picture when it comes to
equal representation of women in the benches. The popular discourse in India takes place on case
backlog, inadequate number of judges, and predominance of caste or religion based
appointments of judges but not on having an inclusive judiciary with an equal gender
representative character. The constitutional courts were earlier, impenetrable for women due to
multifarious social and educational reasons; however, now with equal access to education,
number of women opting for legal profession is on a rise. Standing from that point, this article
intends to delve upon the ubiquitous diversity factor that prevails in the higher judiciary on
convention in India. The article aims to explore the presence and effect of gender diversity in the
High Courts and Supreme Court judges.

Introduction

India as a nation has been battling gender biases and prejudices since the time it gained
independence. Indian judiciary does not paint a picture that is any different. The idea of building
an all reflective judiciary has been on the judicial horizon of India off late but the sculpting of a
new India has been ‘an uphill task progressing at a meandering pace. As per the recent reports
the chronic problem of gender imbalance in higher judiciary with only 12% of the total strength
being women is indeed startling. The popular discourse in India takes place on case backlog,
inadequate number of judges, predominance of caste based or community based appointments of
judges but not on having an inclusive judiciary with an equal gender representative character.

Ever since the establishment of the Supreme Court of India till 1989, all the 93 judges who have
served the all-powerful apex Court have all been men. Legal education has been off limits for
women for many decades, yet few of them who made the difference by seeking legal education
did not have a bed of roses to walk on. Looking upon the trend in Indian Judiciary, it took almost
four decades after the establishment of the Supreme Court of India for a woman to become a
judge in the Supreme Court. It was only in 2018 that a female senior lawyer was directly
appointed as a Supreme Court Judge. Indu Malhotra J.’s direct move from bar to bench is seen
as breaking a major glass ceiling by many in the legal fraternity, as it has cleared the decks for
more woman advocates to get directly nominated as judges of the Supreme Court. All the six
previous woman judges of the court were elevated from the high court, the first being M.
Fathima Beevi J. in 1989. Her appointment signifies the position of women at bar and the
acceptance of the talent of women. In two decades of independence, India has elected a woman
Prime Minister whereas even in six decades, the country is yet to have a woman Chief Justice of
India.

Studies have indicated that around 27.6% of judges in the lower judiciary are female, which is
higher than the average in the constitutional courts. Statistics seemingly indicate that the number
is not a bottle neck in the matter of consideration of judges for elevation to the higher judiciary.
The problem of poor representation lies somewhere else which is yet to be uncovered. Judicial
officers are not often the preferred choices for constitutional court judgeship. Rather, practicing
advocates are more preferred for higher judiciary. It can be argued that women can participate in
the selection process through bar as well, however, spending a significant amount of time in
courts can easily point out the gender biases that prevails in practicing law there as well.
Practicing law has always been identified with men in black robes however, when women started
venturing in this profession, they had to identify themselves with the set male standards that
characterize a practicing advocate. Therefore, there has never been any initiative in
understanding what women can contribute to the judiciary because they have so far been
contesting in a professional set up which is not gender neutral. Number of female students as
compared to male students in law schools and colleges in India at undergraduate level is also not
at parbut the dropout rate gets higher and higher as one starts moving up the ladder in the
profession.The students enrolled in law stream are 3.3 lakh out of which 2.2 lakh are males.
Where are the 1.1 lakh female law pursuers going then? In a valuable profession like law,
women do not hold a position of equivalent power as her male counterpart. There has to be some
reasons as to why women are being represented at a dwindling rate. A lot of senior advocates and
judges in interviews have said that being a women, they were never taken seriously by their
counterparts. Gyan Sudha Misra J. in an interview said, “I guess lack of faith and belief in the
abilities of women is still rooted in society and more so in the male psyche and we prefer to have
their token presence, especially in the higher judiciary, more for the sake of symbol rather than
their equal participation”.1 Former High Court of Delhi Chief Justice AP Shah described how a

1
S. Mishra, “The Sexist Bar” The Week (2016), available at: www.theweek.in/theweek/cover/gender-
discrimination-in-judiciary.html (last visited on Dec. 10, 2019).
woman lawyer he had recommended for judgeship was rejected on the grounds that she was
‘rude’, though he believes similar behavior exhibited by a male lawyer would not have been
judged as harshly. Senior advocate Indira Jaising observes, “There is a live and kicking
patriarchy that prevents women from breaking the glass ceiling. The entrenched ‘old boys’ club
mentality makes it harder for women to lobby for judicial posts”. 2Addressing the issue of gender
diversity several scholars have pointed out that presence of women in judiciary symbolizes
participatory democracy, diversity of opinions gives an inclusive characteristic to the judiciary
and signals equality of opportunity for all.

The Indian Constitution has not been silent on the point of maintaining diversity, however, what
has been observed is that only certain aspects of diversity like religious minority, caste
backwardness, and regional representation have been taken into consideration while preserving
the diversity factor in appointment of judges in the higher judiciary. 3 The idea of having an
inclusive judiciary is inbuilt in the Constitution itself. 4 The need of the hour is to reflect that
ideology in all the constitutional offices.

State of Women Representation in Judiciary

 Women Representation in Supreme Court: The first-ever woman judge (Justice

Fatheema Beevi) in the Supreme Court was appointed in 1989, 39 years after the apex
court came into existence. Since then, only 10 women have become judges in the apex
court.

 Women Representation in High Courts: The share of women judges in High Courts

was no better. Overall, women judges account for only 11% of HC judges. In five HCs
(Patna, Meghalaya, Manipur, Tripura and Uttarakhand), no woman served as a judge,
while in six others, their share was less than 10%.
2
V. Doshi, “Indira Jaising: In India you can’t eve dream of equal justice. Not at all” The Guardian (2017),
3
Abhinav Chandrachud, The Informal Constitution: Unwritten criteria in selecting judges for the Supreme Court of
India.
4
Indian Constitution has promoted the concept of inclusivity for the genders through Preamble, Fundamental
Rights and Directive Principles of State Policy.
  Women Representation in District Courts: Women's representation in the judiciary is
slightly better in the lower courts where 28% of the judges were women as of 2019.

Reasons For Low Women Representatives

1) Opaque Collegium System Functioning: More women tend to enter the lower judiciary at
the entry level because of the method of recruitment through an entrance examination.
However, the higher judiciary has a collegium system, which has tended to be more opaque
and, therefore, more likely to reflect bias.

2) No Women Reservation: Many states have a reservation policy for women in the lower
judiciary, which is missing in the High Courts and Supreme Court.

3) Familial Responsibilities: Factors of age and family responsibilities also affect the elevation
of women judges from the subordinate judicial services to the higher courts. A lot of female
judges join the service very late, which makes their chance of making it to the high courts or
Supreme Court bleak. Then there are some who are not able to focus on their growth as a
judge because their focus shifts towards their families after joining service.

4) Not Enough Women in Litigation: Since lawyers elevated from the bar to the bench form a
significant proportion of judges in the High Courts and Supreme Court, it is worth noting that
the number of women advocates is still low, reducing the pool from which women judges can
be selected. While official data on the number of women in the legal profession as a whole is
not available, a 2020 news report estimates that women make up only 15% of all enrolled
advocates in the country.

5) No serious attempt has been made during the past 74 years to give adequate representation
to women either in the high courts or in the Supreme Court. In India, women constitute about
50% of the total population and a large number of women are available in the Bar and in the
judicial services for elevation but, in spite of that, the number of women judges is small.

Significance of High Women representation

1) Motivates More Women to Seek Justice: Higher numbers of women judges can increase
the willingness of women to seek justice and enforce their rights through the courts. Though
not true in all cases, having a judge who is the same gender as litigant, can play a role in
setting the litigant’s mind at ease. For instance, think of a transgender woman as a judge
listening to the case of other trans women. That would inspire confidence in the litigant, as
well.

2) Different Point of Views: It is definitely valuable to have representation of various

marginalities in the judiciary because of their different lived experiences. Diversity on the
bench would definitely bring in alternative and inclusive perspectives to statutory
interpretations.

3) Increase Judicial Reasoning: Increased judicial diversity enriches and strengthens the

ability of judicial reasoning to encompass and respond to varied social contexts and
experiences. This can improve justice sector responses to the needs of women and
marginalized groups.

Solutions

1) Changing Patriarchal Mindset: The need of the hour is to correct the patriarchal mindset in
recommending and approving the names of those who are to be elevated as high court judges
and come out with more representation to worthy women lawyers and district judges for
elevation.

2) Provision of Reservation: It is high time that all those who matter in the appointment of
judges to the high court and the Supreme Court, realize the need of giving adequate
representation to women in the judiciary. In fact, the superior judiciary should also have
horizontal reservation for women such as subordinate judiciary without diluting merit.

3) Vacancies as an Opportunity: There are more than 40% of the vacancies in high courts. But
it gives an opportunity to make up for the deficiency in the matter of representation to
women in higher judiciary.
4) Removing Gender Discrimination: It will be a step in the right direction and ultimately
may lead to more social and gender harmony in the judiciary. Any step in this direction will
be a benchmark for society with many more young women students coming forward and
opting for law as a profession.

Conclusion

Diversity of the judges of the Supreme Court enhances the court’s legitimacy. Legitimacy is a
significant requirement of any decision-making body and therefore, it can be argued that a
diverse judiciary, which gives substantive and not mere symbolic representation to women, is
indeed a necessity for the High Courts and Supreme Court of India at present.

To be truly diverse, the Indian judiciary would need representation of judges from not only
different gender identities, including trans and non-binary but also different caste,
socioeconomic, religious, and regional backgrounds.

But things are changing in favor of making judiciary gender representative and inclusive and that
can be gauged from the following words CJI Ramana: “Enough of suppression of thousands of
years. It is high time we have 50% representation of women in judiciary. It is your right. It is not
a matter of charity’.