WOMEN IN HIGHER JUDICIARY

With India set to have its first woman Chief Justice, Justice B. V. Nagarathna, it is time to rethink the representation of women in judiciary, especially higher judiciary. It will only be in 2027 that Justice Nagarathna will take over the highest judicial office in the country but the larger question is — why did it take so long for a woman to climb up the ladder after more than 75 years of the country’s independence?  Even though Justice Nagarathna’s appointment as the Chief Justice of India will mark a turning point in the apex court’s inclusivity, it opens a host of questions which are yet to be answered. Last year, before completing his tenure as the Chief Justice, Justice N. V. Ramana appointed 3 women judges to the Supreme Court — the highest ever in a single set of appointments. This raised the number of women judges to four (along with Justice Indira Bannerjee) ¬— the highest ever in the constitutional court’s history. Although this was a good starting point, the proportion of women vis-a-vis the total strength does not paint a very good picture. Women, who make up nearly 50% of the total population, do not even form 10% of the Supreme Court judges. One might wonder why it is necessary for women to be on the bench as male judges are also capable of passing sound and non-discriminatory judgements when it comes to women’s rights. Some intellectuals even go up to the extent of saying that pushing for more women in the higher judiciary is akin to disparaging and doubting the male judges’ commitment towards the constitutional principles of equality and non-discrimination. However, this argument is wrongly placed. We need more representation of women in the higher judiciary, not because men are incapable of delivering justice in “female oriented issues” but because by keeping women out of their rightful offices we are depriving our courts of the valuable judicial perspective that these minds have to offer. For example, in the landmark Sabarimala judgement which allowed the entry of menstruating women in Lord Ayappa’s temple, interestingly, it was Justice Indu Malhotra who opposed the uplifting of the ban on entry of women. She was widely criticized for giving a dissenting opinion, despite herself being a woman. Not just in female oriented issues but we need the perspective of these women judges in all cases. For example, more recently in the verdict upholding the constitutional validity of the 10% reservation for EWS category, Justice Bela Trivedi, who was a part of the majority opinion, held that after 75 years of independence we need to revisit the system of reservation in the larger interest of the society.

The proportion of women judges in the High Courts is also not very encouraging. Less than 12% of the High Court judges are women and more than half of the High Courts in India have not had a female Chief Justice. With more and more girls entering the legal field and their representation being better at the lower courts, especially family courts, the disturbing question is — where are the women going? These missing women are unable to cross to the highest posts, not because they lack the acumen or the ability, but because they are stuck in the glass ceiling of gender stereotypes.

The then Chief Justice of India Justice Ramana was a staunch advocate of more women in higher Judiciary as seen on the International Women Judges Day on 10th March this year when he felicitated and recognized the valuable contribution of all the female judges right from India’s first woman judge in the Supreme Court, Justice M Fathima Beevi to the incumbent ones. I remember watching a Ted Talk of Justice Leila Seth, the 1st woman Chief Justice of a High Court. She had said that women must know their right of inheritance while she was delivering the verdict on equal inheritance rights for both men and women. She recalled how she joined the bar as a mother of two, but never let her motherhood or womanhood become her weakness. On the contrary it was her strength. It is women like these who continue to inspire other women to climb the ladder to the highest judicial posts in the country. I am hopeful that the collegium system, which is itself under the radar now, takes better and more effective steps towards the appointment of women judges.

An Article by Avani Shirsikar
1st Year, NLU Jodhpur
(Intern ingenuity program of J P Legal Associate)