The Higher Judiciary’s Gender Representation Problem

31 Aug 2020 13 min read  Share

A more representative gender jurisprudence would not just mean more women in courts but would increase the willingness of women to seek justice and produce judgments that better reflect the diversity of Indian experiences.

Justice Leila Seth was the first woman to be chief justice of a state high court/NIKHIL KANEKAL/WIKIMEDIA COMMONS

Kolkata: As Rupan Deol Bajaj prepared for her day in court, she asked her lawyer Indira Jaising why her case wasn’t being heard by a woman judge. It was a reasonable question. After all, the IAS officer was taking Punjab’s senior-most police officer, K P S Gill, to court for sexually harassing her; the case, Rupan Deol Bajaj vs Kanwar Pal Singh Gill, 1995, would go on to become a landmark. Jaising’s reply was brief: “Because there is no woman judge in the Supreme Court.”

That situation has changed only marginally since.

The retirement of Justice R. Banumathi on 19 July 2020 left India’s Supreme Court with just two women judges of 31, a female representation of less than 6.5%, compared to Parliament’s insubstantial 14%.

While Parliament’s poor showing gets a fair measure of media attention (here and here), there is virtually none on the more glaring gender gap in the Supreme Court. In the 70 years since its inception, the Supreme Court has had only eight women judges.

In a country where 48% of the population is female, of 245 judges who have made it to India’s highest court, including the current judges, less than 3.3% have been women. No woman has served as the Chief Justice of India.

In the country, 25 high courts, no more than 78 of 685 judges, of 12%, were women as of 1 August 2020, according to the department of justice website.

There is greater gender representation at the lowest level of the judiciary.

In 17 states, between 2007 and 2017, 36.45% of judges and magistrates were women, researchers with the Judicial Reforms Initiative at Vidhi Centre for Legal Policy, a think tank, wrote in January 2020 in the Economic and Political Weekly (EPW). In comparison, 11.75% women joined as district judges through direct recruitment over the same period, according to data from 13 states.

“The data thus shows a near-uniform trend of the proportion of women judges decreasing as one moves up the tiers of the lower judiciary,” said another 2018 report by the Vidhi Centre. “Given that men and women are equally meritorious, in the absence of discrimination, one would assume that the proportion of women judges will remain the same from the lowest to the higher tiers, for any given batch of judicial officers.”

The Leaking Judicial Pipeline

Why don’t women judges in the lower judiciary progress to the higher levels?

“More women tend to enter the lower judiciary at the entry level because of the method of recruitment through an entrance examination,” said Diksha Sanyal, a researcher involved with both the Vidhi Centre studies mentioned above. “The higher judiciary has a collegium system, which has tended to be more opaque and, therefore, more likely to reflect bias,” she said.

She acknowledged that no method is completely objective and that other factors, such as reservations and recruitment criteria, also play a role.

“With the increasing number of women in the bar and social changes recognizing women’s rights, we would have expected the collegium system to be associated with a greater number of women judges on the Supreme Court, but there appears to have been no meaningful change in the likelihood of a female appointment to the [Supreme Court of India] following the establishment of the collegium,” said a 2019 research paper by Aparna Chandra, William Hubbard and Sital Kalantry.

Many states have a reservation policy for women in the lower judiciary, which is missing in the high courts and Supreme Court.

“Reservation quota for women is perhaps just one among many factors that encourages and facilitates more women to enter the system. In states where other supporting factors are present in sufficient measure, women’s quotas perhaps help bridge the gap in gender representation,” noted the 2020 EPW special article.

Factors of age and family responsibilities also affect the elevation of women judges from the subordinate judicial services to the higher courts.

“A lot of female judges join the service very late, which makes their chance of making it to the high courts or Supreme Court bleak,” said Soumya Sahu, a civil judge in Madhya Pradesh. “Then there are some who are not able to focus on their growth as a judge because their focus shifts towards their families after joining service.”

Women judges are not immune to the “leaking pipeline”, the term used to describe how many employed women quit the workforce mid-career when children face board exams and parents need additional care—jobs that fall to women.

India has one of the world’s largest gender gaps in unpaid care work, found a 2018 International Labour Organisation report, and this has resulted in a female labour participation rate of 24%, better only than Pakistan in South Asia.

“The entire attitude towards women who work outside home must change,” said Justice Prabha Sridevan, a retired judge of the Madras High Court. For instance, she said, women who join as magistrates are transferred every three years. This reduces the staying power of women in any profession.

“A total reorientation of the way society thinks of family and marriage is needed,” said Justice Sridevan. “It becomes difficult if you think the woman is the sole nurturer.”

Direct recruitment from the bar, which accounts for a quarter of district-judge appointments, is similarly impeded by eligibility criteria that fail to take into consideration the differential familial expectations from women.

To be eligible to be a district judge, an advocate must have a minimum of seven years of continuous practice. “This could be a disqualifying criterion for many women advocates because of the intervening social responsibilities of marriage and motherhood that could be preventing them from having seven years of continuous practice,” said Sanyal.

While Article 233 of the Constitution provides that appointment as a district judge requires not less than seven years as an advocate, it is the Supreme Court that has upheld the interpretation to mean continuous practice.

Not Enough Women In Litigation

Since lawyers elevated from the bar to the bench form a significant proportion of judges in the high courts and Supreme Court, it is worth noting that the number of women advocates is still low, reducing the pool from which women judges can be selected. While data on the number of women in the legal profession as a whole is not available, a 2020 news report estimates that women make up only 15% of all enrolled advocates in the country.

Justice Indira Banerjee is one of two women sitting judges in the Supreme Court/WIKIMEDIA COMMONS

There is no shortage of women entering the legal profession. Women comprised 44% of candidates who qualified in the 2019 Common Law Admission Test for National Law Universities.

Despite the near-parity of women and men entering law school, not all law graduates turn to litigation—transactional work in corporate law firms and in-house counsel positions are also an option.

“The litigation workspace is very different from that of law firms and companies,” noted a 2012 study conducted on working mothers in the legal profession from Delhi, Mumbai and Bengaluru, published by Rainmaker, a company that helps companies making workplaces compliant with legal requirements.

“On a structural, even an architectural level, courts were not built to cater to anyone but an upper caste man,” said Nikita Sonavane, lawyer and co-founder of the Criminal Justice and Police Accountability Project (CPAProject), an initiative that works to intervene in the criminalisation of certain communities by the criminal justice system.

In the Madhya Pradesh high court, for instance, Sonavane said, there is a dearth of washrooms for women. Many courts in India lack even basic clean toilets, let alone other facilities, such as sanitary-napkin vending machines or nursing spaces and crèches for breastfeeding mothers.

The problem of discrimination is not limited to the gender-insensitive design of courts but extends to all aspects of the judicial system—from everyday examples of gender bias that women lawyers and judges encounter to workplace sexual harassment.

“In my years at the bar, there have been multiple incidents where sexist remarks being made by lawyers go unnoticed by the bench. Such tacit acceptance of sexist language in the courtroom and brushing it aside as ‘didn’t mean any harm’, gives it a level of legitimacy,” wrote senior advocate Indira Jaising in a 2019 open letter to the Chief Justice of India.

She recounted an incident from the Supreme Court where a senior male lawyer referred to her as "that woman” while referring to all his male colleagues as “my learned friend”.

Instead of reprimanding the male lawyer, the presiding judge smiled and said, “Madam, you don’t need any protection, you are overprotected.” Jaising has also revealed that she has been sexually harassed in the corridors of the Supreme Court.

In 2015, a woman magistrate in a traffic court in Delhi was allegedly sexually harassed by a male lawyer in open court. He had mocked her status and threatened to sexually assault her, using abusive language.

“When I was practicing in the Madras High Court, a judge commented about my short haircut, which I couldn’t tie. He said, ‘Your hairstyle is more attractive than your argument,’” wrote Kiruba Munusamy, lawyer and founder of Legal Initiative for Equality, which trains advocates in judicial activism. She has also tweeted that a Supreme Court advocate fired her from his office for taking a day off on the first day of her period.

Even when the conduct of men falls short of outright sexism or harassment, women in the legal profession face bias.

“It was difficult—especially for a young woman in a male-dominated profession. I felt quite diffident and it was tough to make one's presence felt. The only way to do that was to be able to argue in court, but very few clients wanted a young woman junior lawyer to argue their cases,” wrote Zia Mody who switched from a career in litigation to become a corporate lawyer and went on to co-found AZB & Partners, one of India’s leading law firms.

The experience of women judges demonstrates the same pattern. “In most cases, male lawyers or judges especially in upper Himachal had a feudal mentality. They were not used to a woman sitting on their head,” Justice Leila Seth, former chief justice of the Himachal Pradesh High Court and the first woman to become the chief justice of a state high court, said in a November 2014 interview with The Hindu.

All these factors contribute to the low numbers of women in litigation and inevitably to the low numbers of women judges.

The Rainmaker study identified poor sanitation in toilets in courts, lack of formal support mechanisms, such as paid maternity leave and crèches, gender bias, discrimination and sexual harassment as some of the factors that keep women lawyers away from litigation.

Why Women Judges Matter

“The significance of numerical strength cannot be denied as the masculine character of the profession is a major factor contributing to higher attrition for women judges as well as practitioners,” said Rachna Chaudhary, an associate professor at Ambedkar University whose research focuses on the treatment of women within judicial discourse.

While research specific to the Indian judiciary that catalogues the impact of greater representation of women is not available, it is reasonable to assume that findings from studies of working women in general may hold true across professions.

“Women who report that their workplace has more men than women have a very different set of experiences than their counterparts in work settings that are mostly female or have an even mix of men and women,” said a 2017 Pew Research Centre survey in the United States.

The Pew survey found that women employed in majority-male workplaces were more likely to say their gender had made it harder for them to get ahead, they were less likely to say women were treated fairly in personnel matters, and they reported experiencing gender discrimination at “significantly higher rates”.

With more women in courts, gender discrimination and bias would likely reduce. Sanyal said: “Greater gender diversity could change the culture of the organisations.”

A change in the judicial culture is also likely to have knock-on effects for litigants. “Higher numbers, and greater visibility, of women judges can increase the willingness of women to seek justice and enforce their rights through the courts,” said a 2014 report by the International Commission of Jurists.

“Though not true in all cases, having a judge who is the same gender as you, can play a role in setting the litigant’s mind at ease,” said Sanyal. “For instance, think of a transgender woman as a judge listening to the case of other trans women. That would inspire confidence in the litigant, as well.”

“It is definitely valuable to have representation of various marginalities in the judiciary because of their different lived experiences,” said Sonavane.

“Diversity on the bench would definitely bring in alternative and inclusive perspectives to statutory interpretations,” said Chaudhary.

Gender diversity is only one element of diversity.

“The question of caste is absolutely fundamental but is often neglected by the judiciary. Even when the experiences of Dalit or Adivasi women are being used to champion women’s rights, such as in the Mathura rape case or with Bhanwari Devi, the caste dimensions to the cases are ignored by judges,” said Sonavane. “It must not be forgotten that the patriarchy that the judiciary represents is Brahmanical patriarchy.”

To be truly diverse, the Indian judiciary would need representation of judges from not only different gender identities, including trans and non-binary but also different caste, socioeconomic, religious, and regional backgrounds. It would also mean appointment of judges from doubly marginalised sections to allow for the representation of intersectional voices. For context, there have been no Dalit or Adivasi women judges in the Supreme Court.

“Increased judicial diversity enriches and strengthens the ability of judicial reasoning to encompass and respond to varied social contexts and experiences. This can improve justice sector responses to the needs of women and marginalized groups,” found the International Commission of Jurists report.

When it comes to the distinct perspectives that women judges have brought to the bench, several judgements that uphold the dignity of rape victims are noteworthy.

For example, an all-women bench of the Supreme Court comprising Justice R. Banumathi and Justice Indira Banerjee in State (Govt. of NCT of Delhi) vs Pankaj Chaudhary held in 2018 that even if “the victim was habituated to sexual intercourse”, it could not be inferred that she was a “woman of loose moral character” and that even if the prosecutrix was of “easy virtue”, she has right to refuse to submit herself to sexual intercourse. The judgement stands in contrast with and ignores a 2016 all-male verdict in Raja vs State of Karnataka with similar circumstances wherein the judges had imputed an implication to the victim being “accustomed to sexual intercourse”.

A split judgement by a division bench of the Calcutta High Court in 2015 where Justice Indira Banerjee had disagreed with Justice Indrajit Chatterjee’s acquittal of the rape accused provides another example. While Justice Chatterjee had been persuaded by the absence of external injury marks on the body of the victim, Justice Banerjee held that “a mere act of helpless resignation in the teeth of compulsion” could not constitute consent.

Woman judges have also spearheaded important systemic and legislative changes.

For instance, Justice Gita Mittal was the chairperson of the committee that designed the Vulnerable Witness Project, which ensured that witnesses would not have to face the accused and could share their testimony in a comfortable and confidential space.

Another significant example is that of Justice Leila Seth who, as a member of the 15th Law Commission of India, was instrumental in bringing about amendments to the Hindu Succession Act, 1956, which secured daughters’ inheritance rights over ancestral property. She was also part of the three-member Justice Verma committee, set up in the aftermath of the gruesome 2012 Delhi gang-rape case, which recommended speedy trials and more stringent punishments for sexual offences.

Representation Is Necessary But Not Sufficient

There is no denying that progressive male judges too can pronounce pro-women judgements. Likewise, the isolated instances of some women judges championing gender justice, highlighted above, do not mean that all women judges are progressive or feminist.

“More than gender, it is the lived experience of marginalisation and discrimination, and the commitment to social transformation that is likely to impact judicial behaviour in a radical way,” said Chaudhary, who argued that women were often inducted into male-dominated professions with the flawed notion that they may be more empathetic or sensitive.

“Being a woman is no guarantee of being feminist and also does not mean being empathetic in some ‘natural’ way. This also sets men free from the burden of being empathetic to the needs of the marginalised,” she said.

“The relationship between more women in the judiciary and greater gender sensitive jurisprudence is not a linear, one-track one,” said Sanyal, the researcher quoted earlier.

To impute that women judges are more sensitive to women victims and litigants, is also inconsistent with the experiences of these judges.

“The fact that I am a woman does not change the duty that I am entrusted with as a judge and therefore my approach towards female litigants is the same as it is with male litigants,” said Sahu, the civil judge quoted earlier. “If the law applicable to the two is the same, then there is no question of extra sensitivity towards any particular gender as there is no bargain in the application of law.”

There is no empirical evidence to suggest that women judges are likely to pronounce gender-sensitive judgements. On the contrary, women judges may be more reticent to being openly feminist in their rulings.

“The burden to tone down one’s politics and maintain a façade of neutrality is higher for women,” said Sonavane, the co-founder of CPAProject quoted earlier. “Because they are operating within a system that is predominantly upper caste men, women judges often do not want a pro-woman bias to be attributed to them.”

Many feminist judges are wary of even suggesting that gender might be relevant to their judging for fear that they may appear biased, found Rosemary Hunter’s 2018 research paper, which studied feminist judgements in Australia.

“Despite being judges, we are still vulnerable,” said Justice Sridevan. “We are so few; we do not want to be seen as unfair.”

Sonavane, who re-wrote the Supreme Court’s verdict in Uday vs State of Karnataka as part of the Feminist Judgments Project, India, wondered if she could have written the same judgement had she actually been a judge. Her alternate dissenting judgement convicted the accused of rape in a ‘promise to marry’ case by challenging the presumption of consent in the context of the inter-caste dynamic between the accused and the prosecutrix. “I hope I would have been able to write a dissent but I would probably have to tone it down,” she said.

The Feminist Judgments Project, India, which involved a collaborative writing of alternate judgements in cases with a significant bearing on women, illustrates the potential of a distinctively feminist jurisprudence.

What Can Be Done?

Considering that judges irrespective of their gender presentation can lean towards or away from feminist values, an argument can be made that sensitivity to gender discrimination needs to be cultivated specifically.

“You want a system where all judges are trained to check their own biases, think reflexively and act in a gender sensitive manner regardless of their own gender,” said Sanyal.

Justice Sridevan’s experiences lend merit to the value of gender sensitization training. She learned how the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) could be used in judgements during one such training camp and applied what she learned in a case involving two women who had been denied membership to an educational trust.

Sanyal said such training should be a regular feature for judges. Chaudhary advocated gender-sensitisation training not only for judges but for lawyers and suggested it become part of the legal-education curriculum.

Jaising’s open letter recommended that sexist remarks in judgements be documented and barred from judicial language, and lawyers and judges who condone sexist behaviour not be promoted.

Sonavane also advocated better accountability but maintained that nothing could replace the need for women to hold positions of power themselves. She added that affirmative action at all levels of the judiciary could increase female representation.

“If a day comes when there are so many women judges that you do not think in terms of a quota,” said Justice Sridevan, “then you will automatically see an impact on jurisprudence.”

(Shruti Sundar Ray is an independent journalist.)

Previously on Article 14:

How India’s Rape-Survivors End Up Marrying Their Rapists

How Indian Courts Define A Married Woman’s Place