The discussion around judicial reforms in India has been largely focused on issues of delayed judgements and vacancies. However, a much larger problem which has not received adequate attention is the lack of gender representation in the Indian judiciary. The need for inclusivity in society and social dialogue has never been greater than it is today. Our public institutions need to be more sensitive to the needs of various sections of the society. And increasing diversity of gender, religion, economic and social backgrounds and physical abilities in these institutions, is a way of promoting sensitisation. A greater representation of women in public institutions, especially the judiciary, would not only give way for women to effectively raise their voices, but also support them in attaining a more just implementation of the rule of law. In this article, I will explore the various reasons for low gender representation in the Indian judiciary, and the reasons for why we need more of it.
In conjunction with caste, class and religion dynamics, the problem of fair representation for women gets exacerbated. Inflexible working hours, casual sexism in the courtrooms and a toxic work environment has made the Indian judiciary a man’s world.
The following statistics highlight the fact of the Indian Judiciary being a man’s world. India’s apex court, since its inception in 1950, has had only eight women judges till now. In fact, in 2018, it was the first time in the history of the court where it had three sitting women judges. Currently there are only two female judges in the Supreme Court as compared to 28 male judges. The picture is equally abysmal in the country’s 25 High Courts, with only 78 female judges out of the total 685 (as of August 2020). Out of these, eight High Courts do not have a single woman judge. Moving down the ladder to the District Courts, the picture does not improve much. Between 2007-2017, only 11.75% women were recruited through direct recruitment from the Bar, according to data from 13 states (Chandrashekaran et al 2020).
Even though more women are now entering the legal profession, especially the judiciary, their number reduces as they move up the ladder and become judges (Panicker 2020). One of the most talked about reasons for the lack of gender representation in the judiciary are the recruitment methods. The recruitment for Civil Judges (Junior Division) is done through an entrance examination, which is why we see comparatively higher representation in this tier. Moving up, for the appointment of District Judges, the Supreme Court has mandated that a person must be an advocate or pleader with minimum seven years of continuous practice (Chandrashekaran et al 2020). This eligibility condition eliminates many women to qualify for the position. Various social constraints faced exclusively by women, such as marriage, familial responsibilities and motherhood make it difficult for them to have continuous practice. This explains why only 11.75% women were recruited for the position in 10 years across 13 states. The appointments and transfers to the higher judiciary is done through a collegium system, consisting of the Chief Justice of India and four senior most judges of the Supreme Court, who make recommendations for the appointments. The accountability and transparency of the system has been put in doubt and it is known to have gender bias.
After overcoming obstacles of biased appointments and recruitments, when a woman finally enters the judiciary, at any level, she is faced with a toxic and patriarchal work environment. Even the judiciary, which is supposed to be the harbinger of equality and justice, is not free from instances of sexual harassment and mistreatment of its female members. Lawyer Indira Jaising in an open letter to the Chief Justice of India spoke about the prevalence of sexist remarks and language being used in the courtrooms even today, and the various instances of misconduct by the male members. Women lawyers and judges and constantly judged and questioned on their attire, conduct and abilities. In a patriarchal society like ours, where women are considered to be subordinates, men often find it hard to see a woman taking charge or holding the same titles as they do.
Inadequate female representation can be directly linked to the bias which exists in the Bar and the courtrooms. A diverse judiciary, representative of people it serves, would not only increase public confidence in the judiciary, enabling it to make more informed decisions, but would also make the culture of the institution more gender neutral. It becomes important for democratic legitimacy that the institutions act in a non-discriminatory manner. And the presence of women becomes essential for this legitimacy (Chandra et al. 2018).
Having more gender representation in the courts would allow for having a more contextual and critical lens while making decisions on gender related issues. Anne Phillip’s theory of politics of presence is based on the belief that women are best equipped to represent women’s issues because of shared experiences, interests and needs. Decisions taken are likely to be more informed when different life-experiences are represented. Women judges and lawyers, by bringing these necessary experiences to their judicial practice, will also bring attention to the need for a more representative justice system. Higher numbers and visibility of women in the judiciary can lead to an increased willingness of women to enforce their rights and seek justice (International Commission of Jurists 2013).
For instance, to highlight the difference in perspectives and upholding the dignity of women, in 2018, in the case State (Govt. of NCT of Delhi) v. Pankaj Chaudhary, an all-women bench held that a woman cannot be inferred to be of “loose moral character” even if she was “habituated to sexual intercourse” and has the right of refusal to submit herself to sexual intercourse to anyone.” On the other hand, there are numerous examples where the male judges have been insensitive towards the victim, such as in 2020, in Rakesh B v. State of Karnataka. The Court granted bail to a rape accused and commented that the women’s falling asleep after rape, was “unbecoming of an Indian woman.” The statement was later removed from the Court order after it sparked a wave of criticism on the misogynistic treatment of rape victims.
When we talk about our experiences and interactions with the state and its institutions shaping our perception of them, we should also question the representativeness of the state. Given that laws made the legislature and judgments by the judiciary shape our lives, we should also question whether they are also representative of our lived experiences, concerns, and interests.
Is it justifiable for a courtroom filled with men to pass judgements on rape and sexual harassment cases? Is it justifiable for a parliament dominated by men to make laws about female reproductive rights? Is it not a parody of democracy when the institutions are dominated by a single gender? (Phillips 2017)
The appointment statistics and instances of sexism and discrimination depict how the judiciary makes women feel that they do not belong inside courtrooms, and makes very little effort to change that. Reservation for women in job roles has been a well-tested solution for increasing female representation. Several states including Rajasthan, Chhattisgarh, and Jharkhand have reserved seats for women in the lower judiciary, specifically in the positions of civil judge (junior division) and district judge. In case of the former in Rajasthan, such quotas have had a positive impact, with recruitment of women going up from 15% in 2008 to 60% in 2016. However, states like U.P., Chhattisgarh have not been able to increase representation, despite quotas (Chandrashekaran et al 2020).
Arguably, reservation is just one of the many factors that influence women’s entry into the judiciary. Relaxing eligibility criteria for women, more female appointments, especially in the higher courts, can be instrumental in breaking gender stereotypes and changing perceptions of gender roles.
The lack of gender representation in the judiciary brings our attention to the much-needed reform of this primarily oppressive and patriarchal society, and the need for more female voices to lead and participate in it.
Vidhi Narang is a student at National Law School of India University. Her educational background is in Economics. Her areas of interests are gender and sustainable development. She can be reached at email@example.com
Chandra, A. et al. 2019. ‘From Executive Appointment to the Collegium System: The Impact on Diversity in the Indian Supreme Court’. Legal Studies Research Paper Series, Cornell Law School: 19-26.
Chandrashekaran, S. et al. 2020. ‘Breaking through the Old Boys’ Club: The Rise of Women in the Lower Judiciary’. Economic and Political Weekly, 55(4).
Dhonchak, A. et al. 2020. ‘Courts’ Misogynistic Rules For Rape Survivors’, (https://www.article-14.com/post/the-indian-courts-misogynistic-handbook-for-rape-survivors) (accessed on 14 December 2020).
Department of Justice, Government of India. 2020. ‘Judges of the High Courts’, (https://doj.gov.in/sites/default/files/HCs-1.08.2020_0.pdf) (accessed on 24 September 2020).
Economic and Political Weekly Engage. 2020. ‘Collegium System in the Indian Judiciary Needs to be Reformed for Greater Transparency and Accountability’, (https://www.epw.in/engage/article/collegium-system-indian-judiciary-needs-be) (accessed on 24 September 2020).
International Commission of Jurists. 2013. ‘Women and the Judiciary’. Geneva Forum Series(1).
Jaising, I. 2019. ‘An Open Letter From Indira Jaising to the Chief Justice of India on Women’s Day’, (https://thewire.in/law/open-letter-indira-jaising-to-cji-womens-day) (accessed on 24 September 2020).
Ministry of Statistics and Programme Implementation, Government of India. 2017. ‘Participation in Decision Making’, (http://mospi.nic.in/sites/default/files/reports_and_publication/statistical_publication/social_statistics/WM17Chapter5.pdf) (accessed on 24 September 2020).
Panicker, L. 2020. ‘The legal profession must ensure gender balance: Analysis’, (https://www.hindustantimes.com/analysis/the-legal-profession-must-ensure-gender-balance-analysis/story-zXAKhye28e9ihWXV4GetRK.html) (accessed on 20 September 2020).
Phillips, A. 2017. ‘The Politics of Presence: Do Politicians Represent Us?’ (blog), (https://blogs.lse.ac.uk/government/2017/09/06/the-politics-of-presence-do-politicians-represent-us/) (accessed on 24 September 2020).
Ray, S. 2020. ‘The Higher Judiciary’s Gender Representation Problem’, (https://www.article-14.com/post/the-higher-judiciary-s-gender-representation-problem#:~:text=In%20the%2070%20years%20since,the%20Chief%20Justice%20of%20India) (accessed on 24 September 2020).
Ruiz, V. 2019. ‘The Role of Women Judges and a Gender Perspective in Ensuring Judicial Independence and Integrity’. The United Nations Office on Drugs and Crime, (https://www.unodc.org/dohadeclaration/en/news/2019/01/the-role-of-women-judges-and-a-gender-perspective-in-ensuring-judicial-independence-and-integrity.html) (accessed on 24 September 2020).