In 1989, the Apex Court of India made history by appointing the first female judge of the Supreme Court. However, such an appointment only took 39 years for highest institute of Justice to have any kind of gender diversity. It is an indisputable fact and a well eluded topic, that the Judiciary has an unspeakably low representation of women or any other gender minority.
As pointed out by the Attorney General K.K. Venugopal, India never had a Chief Justice of India who was not a man. He also rightly pointed out a few suggestions, such as enumeration of women judges in lower judiciary and other tribunals as well as the Gender Sensitization. This comment came from the pretext of a case where an accused of sexual harassment was given a bail, condition being that he were to request the victim to tie a Rakhi around his wrist . Such a strange prerequisite coming from the higher judiciary obviously accounts for and points towards the lack of gender diversity in the courts. However, more than a need for representation, the inherent question of why is the judiciary a male dominated profession to begin with, is overshadowed. The subordinate and the higher judiciary have different ways of appointment of the Judges, although they can be similar at times. Understanding the hierarchy of the Judiciary is an important step for understanding how it works, and how appointments are made.
The structure of civil courts ranges from Junior Civil Judge Court, Principal Junior and Senior Civil Judge Court, which are also known as Subordinate Courts. The lower Courts can more often than not, act as a ladder for judges to reach the Higher Judiciary. It is, therefore, essential to look into the number of women on different layers of the Judiciary, starting with the grassroots. Before delving into the current status of the High Courts and the Supreme Court, it would be pertinent to observe the trend at the subordinate judiciary:
Induction of Relatively Younger People into the Judiciary and Subordinate Courts:
The appointment of judges in subordinate Judiciary differs from state to state, under the governance of State Judicial Service rules. The appointment of Civil Judges happens through open competitive exams and for District Judges, a majority of them are appointed on seniority basis and a minority through an examination for which there are specific number of years that the candidate must have practiced as an advocate. In a research conducted by writers at the Economic and Political Weekly, they acquired data about the judges of 15 States by filing an RTI . The data had all the judges in the state divided in columns of gender, social status and religious background who were appointed between 2007 and 2017.
The study found out that the share of women entering into the Indian Judiciary through competitive examination was 36.45%. In the recent appointments, 7 out of the 15 states had at least 50% of women. 5 States provided women with reservation State Judicial Services rules wherein the State of Karnataka provided the highest reservation of 33%. Such reservation had a major effect on Rajasthan as in a span of 8 years, the representation of women as a Civil Judge hiked from 15% to 60%.
However, the share disappointingly decreases to 15% for District judges. It would be very unlikely for such a decrease to be merely coincidental, and the Indian Judiciary as well as the legal fraternity is no stranger to cross generation lobbying and other ways of subtle favouritism. Albeit it would be hasty to arrive at such harsh conclusions with such limited data, other factors such as the fact that India has relatively a very low female labour force and social stigma of marriage which still remains a major factor driving women out of the Indian Job market. As the hierarchy of the Indian Judiciary is climbed, the representation of women significantly lowers.
The Widened Gap of the Higher Judiciary:
The Supreme Court and High Courts’ judges are appointed through a collegium system which is presided by the Chief Justice of the Court and the four senior-most Judges of that Court. The Collegium decides and recommends the names to Chief Justice of India who has the power to reject the same. The Government of India has a very limited role in the appointments so as to maintain the independence of the Judiciary.
The inadequate number of judges in the higher judiciary when talked about is collective of all the judges that are appointed. When viewed from a gender-based approach, the figures tend to get way more disproportionate where there are less than 12% women judges in the higher judiciary . According to recent reports by The Print, the exact figure of women judges in High Courts across India is 82 out of a total of 1,079 judges . Furthermore, the Supreme Court, out of a total of 34 judges has only 2 women judges. Why is the institution which happens to be the guarantor of constitutional rights, still not diversified in the arena of gender diversity is a question which needs an urgent redressal.
Is “need” really the only reason for such representation?:
It is indeed, necessary to differentiate between the need for women in the Indian Judiciary and deconstructing the reason why such positions are abundantly filled by a single gender. The former is an utterly important factor for diversification of space and the diversified perspective, which could be noted from many precedents such as the much cited case of Vishakha v. State of Rajasthan wherein a woman Judge, Justice Sujata Manohar, delivered the Judgement for making provisions against sexual harassment at workplace actionable. It is an understood notion that lived experiences of one gender are likely to be comprehended by the persons of that gender, adding further analysis, consideration and extra steps to specific cases which could be missed by men. On the other hand, the M.P. High Court case stated in the beginning of this article sets an example for the lack of understanding for the plight of other genders. There are a plethora of instances where sexual harassment related cases were dismissed without much consideration. This is not to question the credibility of the Hon’ble Courts, instead, the need for different perspectives which could broaden the scope of thoughts.
However, a slightly more disappointing present is not about the “need” for such representation, rather about the lack thereof. The distance in the High Courts’ Judges’ number, a difference from 2 digit number to 4 digit number seems like an excessively large disparity. It would be hard for any reasoning to explain such imbalance without relying on some fundamental issue in the mechanism for appointment of Judges. There does not need to be a reason for equal opportunities to each and every person, based on their ability and the numbers, especially in the higher Judiciary may not seem to do Justice to the same.
The Indian Judiciary has made relatively better progress in this decade than the previous ones in terms of representation of women. However, the same progress is a little too slow with the evolving times. When the majority of India is striving to take a leap towards feminism, it is high time that the protector of our rights, follows suit and sets an example for the rest of the world.
– Osho Dubey,
Writer, Bharat Bhagya Vidhata
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