A Case For Greater Representation For Women Judges In Higher Judiciary

Did you know that from “1950 to November 2015 only six women became Supreme Court judges out of a total 229 judges appointed?” 

The first female judge was appointed in 1987, 37 years after the Supreme Court of India was established, even though India got its first woman prime minister in 1966. 

Seventy-three years after India became a Republic, the country today has a second woman president and head of regulator Securities and Exchange Board of India (SEBI) but not a woman chief justice. This is despite god being worshipped as mother in Indian tradition.   

Retired Judge Indu Malhotra said in a 2018 panel discussion hosted by Vidhi Centre for Legal Policy, “There is a gender bias in the legal profession and judiciary. People think women judges are not good enough to grapple with complicate commercial matters....sometimes, even a senior judge would turn around to say you would not understand it so you have to work twice as hard, you have to fight your way and struggle it out,” Source Livelaw 

To know the extent of women representation in the higher judiciary, I visited the Supreme Court (SC) and select high court (HC) sites on 31 March 2023. Read on.

In absolute numbers, the number of women judges has gone up from 29 in 2021 to 45 in 2023. However, in the Supreme Court and four high courts, the number of women judges as a percentage of total number of judges is 18. However, there are huge variations between courts.

The lowest is 9 per cent for the Supreme Court and highest is 24 per cent for Madras High Court. It is the Delhi and Madras high courts that improve the average number. 

Punjab and Haryana High Court has 22 per cent of women judges. The high percentage in Madras High Court is not reflected in the Bangalore High Court.

There is something right being done by the Collegium of the Madras High Court because even in June 2021 it had the highest number of women judges. Delhi High Court had 10 judges in 2016 and 2023.  

It is clear, based on the above data, that the higher judiciary is male-dominated. If women judges are considered not good enough or incompetent by the all-male Collegium, the people of India should be told so and a plan for affirmative action be spelt out.

It was very nice to read what Justice Hina Kohli of the SC said at a recent event on International Women’s Day: “it is a recognition of the fact that women, who constitute almost 50% of the total population in India and are going to dominate the workforce in the next few decades, are given their place under the Sun.” Source BarnBench 

Is it time for SC to walk the talk as industrialist Anand Mahindra said at Davos. 

“Women, after all, bring many positives to the workplace.” 

A Bengaluru-based lady chief financial officer of a services company says that "women have many strengths, for eg, empathy... so they take the team along with them, by nature women are more rigorous... means the level of diligence, attention to detail is higher, thus better executors. Finally, women hold themselves to a higher standard which percolates to the team so overall team output is better."

She ends with a caveat. “I am not into this women-man comparison and believe each individual, man or woman is different.”  

According to survey results, “when women lead, workplaces should listen”. A 2019 article in Mckinsey, “women, more frequently than men, exhibit leadership traits that are highly applicable to future global challenges namely inspiration, participative decision making, expectation and rewards, people development and role modelling.” 

I asked a Delhi-based practising senior counsel why there are fewer women lawyers and judges in the higher judiciary? He said, "There are many women lawyers, actually more than any other profession. Judges not as many since women don’t last the distance. It takes a lot to rise to the top in this profession. Women are constrained by families and their own will to put their career first.” 

A member of the Supreme Court Women Lawyer’s Association told this author that what is required is a mindset change amongst all so that women are placed on an equal footing. Here are her thoughts.  

One, there is a perception that women are not competent to deal with litigation especially in criminal cases, so first choice is always male lawyers.

Two, since the profession is male dominated and women made a late entry some sort of reservation for women, as exists for others in the Constitution, should be introduced that would enable them to catch up.

Three, need proper toilets for women especially in the district and taluka courts. If the number of woman lawyers increases, they can respond to harassment and sexually coloured remarks made, say, during Bar Association elections.

Four, all must understand that motherhood and management of family responsibilities puts additional pressure on women. She adds that when family matters go to the apex court women are in a better position to mediate. 

Will the higher judiciary take cognisance and make it easier for women? 

Independent director and senior human resources professional Aparna Sharma, wrote “Let us not make men out of women” in Business Manager. "Again God has empowered women with the responsibility of child birth, so they should be supported during pregnancy and post delivery. This could take the form of creches at work, flexible working hours and denial of loss of seniority for women who opt for career breaks.” 

Another Mckinsey article states, “It’s increasingly important to women leaders that they work for companies that prioritise flexibility, employee well-being, and diversity, equity, and inclusion (DEI).” If companies fail to do so they might lose the next generation of leaders, in this case judges in the HJ. 

Aparna adds, “A level playing field without any special/privileges/concessions is the best way to start and stay on course. It amounts to hard work, personal sacrifices and strong commitment that holds true irrespective of the gender.” 

A Cambridge-educated lawyer now professor in a private law school says, “Women as lawyers/judges are more likely to be advancing policies on women empowerment. Not to say that men won't or don't.” 

Another plus is that most women are rooted in Indian traditions, so bring an understanding and sense of balance as done in the Sabarimala matter. 

So What Can The Centre And Higher Judiciary Do? 

Make it mandatory under law to have a woman judge in the Collegium and a minimum percentage of women judges in the higher judiciary, say a 25 per cent increase every year by a percentage point for say the next eight years. 

Note that the Executive Committee of the Supreme Court Bar Association for 2022-23 has three women out of 12 members. If this reservation means increasing the number of judges, so be it. 

Since the collegium system of appointment is not mentioned in the Constitution, implementing the mandatory bit could be tricky. Nevertheless, Parliament must introduce this law in the name of women empowerment and build public opinion against male domination. 

If there is a shortage of women judge candidates, the Collegium can overlook seniority and take some Delhi and Madras high court judges.  

The Centre must fund restrooms for women in all district and taluka courts. They should thereafter, be maintained by the court bar association.

The state level Bar Association would be overall responsible for their maintenance with a system for complaint resolution. The buck stops with the Chief Justice of the high court. 

Women lawyers must document their success in cases through articles in media. This will create awareness about their competence. TV channels can help by inviting them on primetime debates. 

A bit of social change is required. Families of judges must support, in more ways than one, when a woman member of their family is a judge.  

Higher judiciary must make it safer for women lawyers and judges. If not done so already, the higher judiciary must introduce Vishaka guidelines in all courts. Read SC must follow the Vishaka spirit . A review of the SC site shows a gender sensitisation and Internal Complaints Committee exist. Details can be viewed here. 

Note that “The Vishaka Guidelines were a set of procedural guidelines for use in India in cases of sexual harassment. They were promulgated by SC in 1997 and were superseded in 2013 by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act.” 

Effecting change is never easy. Ask those behind the farm laws. 

Utmost care was taken in culling out data. Errors if any are unintended and without mala fide intent. 

Years ago, when I worked in the finance department of Hindustan Lever, a lady accounts officer told me that she made sure work was complete by 6.30 pm since she had to leave to fulfil home responsibilities. With a smile then said, men can hang around longer.   

More women judges, if empowered, will restore balance and might be the key to improving the judgement delivery system/clearing backlog of cases.  

Disclosure: Since my mother became a doctor in the early 1950s and practised for decades thereafter, my views could be biased in favour working women.