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The Diversity Deficit

Chief Justice of India NV Ramana recently said that the issue relating to women’s representation in the judiciary must be highlighted and debated on a large scale. It’s an important issue that deserves serious attention by all stakeholders of the legal profession.

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By Lokendra Malik

Very few women find representation at the top. Even when they do, they continue to face significant challenges. After 75 years of independence, one would expect at least 50 percent representation for women at all levels, but I must admit that with great difficulty we have now achieved a mere 11 percent representation of women on the bench of the Supreme Court,” said Chief Justice of India (CJI) NV Ramana at an event organised by the Bar Council of India, a few days ago. The CJI stated that the issue relating to women’s representation in the judiciary must be highlighted and debated on a large scale.

Women’s inadequate representation in the judiciary has always been a matter of great concern in the country. The Supreme Court was established in 1959, but it got the first women judge Fathima Beevi in 1989, after 39 years of its establishment. After her, seven more women judges graced the bench of the Supreme Court. They are: Justices Sujata V Manohar, Ruma Pal, Gyan Sudha Mishra, Ranjana Desai, R Banumathi, Indira Banerjee, and Indu Malhotra, the first woman lawyer elevated to the Supreme Court directly from the Bar.

Currently, the Supreme Court has four women judges out of 34, the sanctioned strength of judges in the Court. Three women judges—Justices Hima Kohli, BV Nagarathna and Bela M Trivedi joined the Supreme Court recently. It is for the first time that the President of India, on the recommendation of the Supreme Court collegium headed by CJI Ramana, has appointed three women judges to the apex court. One of them is likely to become the chief justice of India if the line of seniority remains undisturbed till 2027. This is the highest number of women judges in the apex court up till now.

CJI Ramana and his four collegium colleagues—Justices UU Lalit, AM Khanwilkar, DY Chandrachud, and L Nageswara Rao—deserve appreciation for taking this great initiative and breaking the deadlock in the Supreme Court collegium that was dysfunctional since September 2019. The former CJI SA Bobde could not recommend even a single judge’s appointment to the Supreme Court during his entire tenure. Thankfully, CJI Ramana has been successful in breaking the impasse.

Time and again, several constitutional pundits, scholars, judges, philosophers, and social activists have raised the issues of gender inequality and imbalance in the judiciary. It is widely believed that more efforts should be made to increase the number of women judges in the country as the equitable representation of women is fundamental to the delivery of justice to the people. An adequate representation of women across all levels of the judiciary is urgently required for building an inclusive and diverse judiciary that could reflect the collective soul of the nation. As the judiciary guides the legal destiny of the people, it should be a role model for promoting the cause of women’s empowerment and gender justice. And to materialise this idea, the Supreme Court collegium should take more positive steps to increase the representation of women in the superior judiciary.

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Ideally, the collegium should also have a woman judge as a member. Currently, the Supreme Court collegium has no woman member as no woman judge is part of the first four senior-most judges of the top court who constitute the collegium. It will be in the collective interest of the judiciary to involve a woman judge in the selection process of judges. Thus, whenever the collegium decides the names of women lawyers and judges for elevation to the Supreme Court and High Courts, the CJI should also invite a woman judge to participate in the collegium’s proceedings and seek her inputs and suggestions for choosing the best judges. In addition, the High Courts’ collegiums should also involve the women judges in the selection process of the High Court judges. It will send a positive message to society.

As mentioned earlier, the issue of women’s representation in the judiciary has been raised many times on different platforms. But both the judiciary and the government have shown less interest in solving this problem. According to the data available in the public domain, out of 677 serving judges in both the Supreme Court and High Courts, only 81 are women—around 12 percent. Among the 25 High Courts in the country, the High Court of Madras has more than a dozen women judges. It has 13 women judges, out of 58, its total strength. Apart from this, the High Courts of Delhi, Bombay, and Punjab and Haryana have also a good number of women judges. Other High Courts should also follow this trend. Surprisingly, five High Courts—Patna, Meghalaya, Uttarakhand, Tripura, and Manipur—have no women judges. In seven other High Courts, there is one woman judge in each High Court. The situation is slightly better in the district judiciary in the states. Hundreds of vacancies of judges are lying vacant in the High Courts and tribunals in the country. There is no dearth of competent and brilliant women lawyers who can be considered for judicial appointments. The time has come when the High Court collegiums should consider more women lawyers and judges for judgeships of High Courts.

There are many reasons for the low representation of women in the judiciary. First of all, many brilliant women lawyers do not join the judiciary due to personal reasons. There are some other reasons also that discourage women from joining judicial positions. Social biases, prejudices and patriarchal discrimination against women are also responsible for the low representation of women in the judiciary. The legal profession also does not treat women well. Women lawyers face huge difficulties in the courts and society and find fewer opportunities to reach higher positions. The Bar can also not avoid its responsibility for this poor state of affairs. The government hardly cares about this issue. But some states such as Bihar are doing better efforts to encourage women to join the judiciary by giving them a reservation at the entry level. It would be better if other states could also implement the reservation scheme for women in the judiciary. It will also enhance the faith of the women in the institution of the judiciary.

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Given the above discussion, the judge-makers should consider giving more representation to women at all levels of the judiciary. For making it possible, all stakeholders of the legal profession should come together to achieve this target. Fortunately, the day is not far when India will have a woman chief justice of India. The statement made by CJI Ramana has opened up the horizon of the possibility to promote gender equality on the bench. The appointment of three women judges in one go is an admirable decision and we should appreciate the collective efforts of the Supreme Court collegium led by CJI Ramana for this decision.

It would be timely to remember these insightful words of renowned American jurist, the late Justice Ruth Bader Ginsburg: …”when I’m sometimes asked when will there be enough [women on the supreme court]? And I say when there are nine, people are shocked. But there’d been nine men, and nobody’s ever raised a question about that.”

—The author is Advocate, Supreme Court of India

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