By Sanjay Raman Sinha
“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,” the Chief Justice of India (CJI), NV Ramana, had proclaimed to a batch of women legal practitioners in September this year.
The call has triggered an enlightened debate on whether it is feasible to grant 50% of space to women in judgeship posts. It is a happy coincidence that 2021 marks the 100th year of Indian women’s entry into the judicial profession. It was on this very year, a century ago, on August 24, 1921, that the Allahabad High Court took the lead and changed history by enrolling Cornelia Sorabji, as the first Indian Lady “vakil” of the Court. Now a century later, a battle for greater or equal representation for women is being fought by women in black.
Justice Sujata Manohar is Mumbai High Court’s first woman judge and a former Supreme Court judge. Recently, she has become the first Indian woman judge and jurist to be awarded the Ruth Bader Ginsburg Medal of Honour. Justice Manohar argues her case for women: “I am reminded of US Supreme Court judge Ruth Bader Ginsburg’s statement. She was asked how many judges are required and she said nine. So, numbers are not important. What is required is non discrimination and a fair playing field. Allow capable women to function; their shouldn’t be any adverse attitude towards women. There should be no harassment, sexual or otherwise. Respect women for what they are. That is what we require; and if we have a correct attitude which is opposite of the patriarchal mindset, then the numbers will take care of itself.”
However, though the Supreme Court has got the highest number of women judges at one go, the dismal number of women in the judiciary at all levels can’t be overlooked. In the top court, the percentage of women judges stands at 12.12. In the High Courts, this figure works out to 11.96.
Justice Shivaraj Patil, former judge of the Supreme Court, has seen things change over a period of time. He says: “I have two observations to make. If women can be prime minister, president, speaker of the Lok Sabha and the Rajya Sabha why can’t they become judges of the Supreme Court and High Court and chief justice of India? It is a fact that the womens’ number in the judiciary is dismal. The collegium has always given precedence to merit and seniority. Now it has to see that the vacancies in the lower and the higher courts are not only filled, but women representation is maintained. The recent spate of appointments, including that of the female judges, has proved that the collegiums have become proactive in this regard.”
But has the glass ceiling in judiciary been broken? The statistics paint a picture which though encouraging is certainly not rosy. The India Justice Report holds that one in three judges in subordinate courts is a woman, in the High Courts only one in nine judges is a woman. The data demonstrate that the glass ceiling in the country’s judicial system is still intact.
Justice Nirmaljit Kaur, former judge of the Punjab and Haryana High Court, says: “Yes the situation makes one feel that there is a glass ceiling for women. The infrastructure is not proper for women to get attracted to the profession. In the lower courts, the infrastructure is shoddy, like at many courts. There are no washrooms for women or other matter-of-fact conveniences. It has been a male dominated profession and has discouraged women to come into the profession. That barrier has to be broken for women to realise that they can attain the highest position possible in the judiciary. It should be made known that the women from lower courts can rise up to High Courts and the Supreme Court. That should attract women in judiciary.”
Shobha Gupta, senior advocate at the Supreme Court, is one of the petitioners who had appealed to the apex court for 50% reservation for women in judiciary. Shobha makes her point forcefully: “Let’s not crib about our lot. We are proud to be in the profession, and we have female members practising at different levels of the judiciary. As for the petition we had filed for equal representation of women in the judiciary, we found that women representation in judgeship is nominal. It is a systemic problem. The number of female candidates who are considered for judgeship is a fraction of their male counterpart. So the beginning itself is wrong. More women should be considered and given parity at promotions and appointment level.”
According to a study conducted by the researchers at the Vidhi Centre for Legal Policy, in lower courts the women participation has gone up from 28% to 30%. Twelve High Courts and 27 lower courts have also raised their quota of women judges.
Meenakshi Arora, a senior advocate at the Supreme Court, speaks from her vast experience. “Our numbers are small, despite the fact that there are enough women for proper representation. We must have women rising from the ranks. The representation is small—for both women and men. In the present lot, only Justice Bela Trivedi has come up from the ranks. Unless you encourage the lower judiciary and make it possible that they can also rise up in rank, it won’t be a fair playing ground. Judiciary cannot be a place for only those who have the advantage of rising from the Bar or having age at their side. They also have aspiration at all levels. The women bring a very special experience to the table. That has to be kept in mind,” she says.
But should the Constitution be amended for the legal framework to be in place for women reservation in judiciary. Justice Manohar says: “I don’t think that the there is any need to amend the Constitution. There is no need for women to have reservation. Women can do well without reservation. Give them a fair playing field and work with them without bias or prejudice. There is no shortage of talented women. We have to allow them to work.”
Justice Patil is also against constitutional amendments. He says: “Reservation is a complicated and difficult issue. The issue of reservation of one third seats in Parliament has not been achieved after even a decade. Definitely there should be more representation of women in the judiciary but not through reservation. It should be achieved by conscious decisions taken by the judiciary. There is no constitutional position that there should be representation of judges from all the states, but a convention is followed by the judiciary in this regard.
“Similarly, a view must be taken that women must be properly represented in the higher judiciary. For this, a change of mindset is also needed. If conscious decision is taken, it can be achieved over a period of time. However, if one enters the arena of constitutional amendments, so many issues will arise and the issue will get stalled. The basic issue is change of mindset. A change of collegium’s policy is needed both at the Supreme Court and High Court levels. More preference should be given to women. A good beginning has been made and we have four women judges in the apex court today. Gradually, the numbers will increase. Now there is a need for an aggressive approach.”
According to the India Justice Report, the overall representation of women has improved in 20 states at the level of subordinate court judges. Over a two-year period, on an average, the share of women judges in the High Courts increased marginally from 11 % to 13%, while in subordinate courts, it went up from 28% to 30%.
Justice Kaur says: “Reservation should be provided from the lower judiciary level onwards. Especially at the lower judiciary level, entry in the profession is done through law exams. Here we find that the women numbers’ are actually increasing. Take the case of Rajasthan. The percentage of women who cleared the exams is greater than the boys. But for those who have cleared the exam and have entered judiciary will take time to rise. Now with the CJI exhorting women to fight for their rights this is something to take notice of. It should be made compulsory that no list of judges should be cleared till some women are in it.’’
Justice Manohar adds optimistically: “This year is the 100th year of women joining the legal profession. The Allahabad High Court took the lead and changed history by enrolling Cornelia Sorabji as the first Indian Lady ‘vakil’ of the Allahabad High Court on August 24, 1921. In the first 50 years only one women High Court judge was appointed, in the next 50 years, 70-75 women judges were inducted. So things are progressing. We can’t be satisfied with tokenism. If more women are in collegiums, it will become easier for more women to get recognised.”
Now that a series of decisions has been being made by the collegium on the appointment of women judges, does this signal a policy change of the collegiums? Will this policy change percolate down? Justice Patil says: “The collegium should have in mind more women representation, then only things will improve. In judiciary, integrity and merit are important and can’t be compromised. If all things are equal, women judges can be chosen. There are more women lawyers today than ever before. This pool should be depended on for choosing more judge candidates. Earlier seniority was the norm. Now with women judges being appointed, a new trend has started. From among the new appointees, one will become a CJI. In due course of time, women will automatically come into collegiums and will impact the women recruitment process.”
Another survey report says that women judges who are inducted as magistrates are subject to transfer every three years. This disturbs their life and adversely impacts their professional commitments. Despite such challenges, women are persisting on. Justice Kaur says: “Today we find that the women are well determined. The numbers may be small but they are a strong willed and ambitious lot. After choosing their profession, they have dedicated themselves to it and are performing well. Now it is the responsibility of the collegiums to make the dream of CJI a reality. The current momentum should be maintained by the successive collegiums. The Supreme Court collegium should make its intent clear and only then it will be followed up by collegiums of lower courts. The collegiums should consult the women judges in this matter.”
There is a crying need for more women participation in the Bar. Only two percent of the elected representatives in the state bar councils are women. Gupta says: “We don’t want any favours. We don’t even want positive discrimination. The women should be considered for appointments. The ratio of women candidates should be proper.”
Merit-wise women judges are at par with their men counterparts. As to the question of who is a better judge, men or women, there is no straight answer. Justice Patil replies with a characteristic wit: “Women judges are stricter on imposing punishment. There are tough women and gentle men; and there are gentle women and tough men. It changes from person to person. It’s my personal view.”
Justice Manohar has seen many generation of women judicial officers. She says: “Gone are the days when women were thought totally unfit for the profession. They were thought to be incompetent, were discriminated against and harassed. Things are much better now. I find many able and competent women; and when these bright women perform, they become an inspiration for many others as well. Now women have reached a takeoff stage.”
Clearly, today, patriarchy or male dominance is in the dock. A change of mindset of collegiums and male judicial counterparts is being demanded. Slowly but steadily, a social change is happening in the judiciary. Maybe in the years to come the “old boys club” will be no more and a more equitable gender order will rise.