CONTEXT: Indian Courts have historically been institutions dominated by male perspectives. To foster inclusivity, it is essential to integrate a female viewpoint within these institutions.
Introduction
Historical Progress of Women in Law:
- Over the past century, women have made significant strides in the legal profession in India.
- Cornelia Sorabji, the first woman lawyer, was allowed to practice law in 1924, paving the way for future generations of women in law.
Growth in Legal Profession:
- Since Sorabji’s time, women have steadily increased their presence in the legal field, attaining prestigious positions such as Senior Advocates and serving as judges in lower courts.
Persistent Inequality in Higher Judiciary:
- Despite these achievements, women remain underrepresented in the higher judiciary.
- This stark underrepresentation highlights deep-rooted systemic inequality within the judicial system.
The Challenge of the Glass Ceiling in the Higher Judiciary
Low Representation of Women:
- Women’s representation in the higher judiciary remains significantly low, highlighting systemic gender inequality.
Statistics on Women Judges:
- Women constitute only 13.4% of judges in High Courts across India.
- In eight High Courts (Bihar, Chhattisgarh, Jharkhand, Manipur, Meghalaya, Odisha, Tripura, and Uttarakhand), there are either no female judges or only one.
Specific Court Data:
- The Allahabad High Court, the largest in the nation, has just three women judges out of its 79 members, which is only 2% representation.
- Gujarat High Court is the only one with a female Chief Justice at present.
Age Disparity in Judicial Appointments:
- Women judges tend to be appointed at an older age compared to their male counterparts, with an average age of 53 years for women versus 51.8 years for men.
- This age disparity often hampers women’s ability to rise through the ranks and achieve senior judicial roles.
At the Supreme Court Level
Current Representation:
- The situation in the Supreme Court is particularly dire, with only two women judges at present: Justices B.V. Nagarathna and Bela Trivedi.
Recent Appointments:
- Since 2021, 28 judges have been appointed to the Supreme Court, yet none of them are women.
Elevation from the Bar:
- In the past 75 years, nine men have been directly elevated from the Bar to the Supreme Court, while only one woman has been given this opportunity.
Reasons for Under-Representation of Women in Judiciary
1. Barriers to Women’s Inclusion
Heightened Scrutiny:
- Women face greater scrutiny during the selection process, with their merit often questioned more rigorously than their male counterparts.
Entry-Level Barriers:
- Judicial Service Rules in many states require continuous legal practice, which can be challenging for women who often take career breaks due to family responsibilities. This restriction limits their chances of elevation to the Bench.
Retention Challenges:
- Even when women enter the judiciary, their career progression is hindered by rigid transfer policies and the lack of adequate support structures, which discourages long-term participation.
Infrastructure Deficiencies:
- Many courts lack essential facilities like separate washrooms, crèches, and family-friendly spaces. A 2019 survey by the Vidhi Centre for Legal Policy found that nearly 100 district courts lacked dedicated washrooms for women, making their work environment challenging.
2. Collegium System and Alleged Gender Bias
No Clearly Defined Criteria:
- The Collegium System lacks clearly defined criteria for eligibility, merit, or the selection process, which leads to an opaque system of appointments.
Composition of Collegiums:
- Collegiums, primarily composed of men, rarely make a concerted effort to identify and elevate qualified women candidates, perpetuating gender imbalance.
Rejection by the Government:
- Even when women’s names are recommended, they are often disproportionately rejected by the government. Since 2020, nine women’s names were recommended for High Court appointments, but five were rejected outright.
Way Forward
1. Transparent Appointment Process:
- The Collegium System should adopt a well-defined and transparent selection procedure based on merit, ensuring clarity in decision-making.
- It is recommended that approvals for collegium recommendations be completed within a specified timeframe of 90 days to avoid delays and ensure efficiency.
2. Gender Diversity as a Stated Objective:
- Gender diversity must become an explicit goal in judicial appointments to create balanced representation.
- A target of one-third women judges in both High Courts and the Supreme Court should be established.
- The Kerala model, which mandates 50% reservation for women in the lower judiciary, can serve as a potential blueprint for encouraging women’s participation.
- Targets for gender diversity (ranging from 33% to 50%) should also be set for judicial appointments in the higher judiciary.
3. Inclusive Infrastructure and Policy-Level Changes:
- Judicial policies must address the specific needs of women, such as maternity benefits and flexible transfer options, to encourage retention and career growth.
- Gender-sensitive infrastructure must be prioritized, including facilities like sanitary amenities, nursing rooms, and childcare centers in courts.
- Women should be included in committees at both the High Court and Supreme Court levels to ensure gender-sensitive perspectives in decisions regarding infrastructure and policy-making.
4. Encouraging Women in the Legal Profession:
- Law firms, bar councils, and judicial organizations must proactively mentor and support women lawyers to create a strong pipeline of candidates for judicial positions.
- Carole Pateman’s theory on the “public-private divide” illustrates the challenge that male-dominated institutions face when adapting to gender inclusion. This underscores the need for female-centric approaches in judicial policy-making.
- Policy and infrastructure in the legal profession should be tailored to address the realities women face, ensuring that recruitment, retention, and career progression strategies are aligned with these needs.