New Delhi: This International Day of Women Judges, the judiciary is largely still an old boys’ club and gender equality in the administration of justice, in the constitutional courts, seems a long way off, against the backdrop of three women judges in the Supreme Court, out of sanctioned strength of 34, and two-women chief justices in the 25 high courts in the country.
U.S. Supreme court Justice Ruth Bader Ginsburg was once asked how many of the nine judges of the U.S. Supreme Court should be women. “Nine,” she said. Ginsburg had said, in the Supreme Court, there'd been nine men, and nobody's ever raised a question about that. She died in September 2020.
Women judges and lawyers face barriers
It is apparent that women judges and lawyers face several structural barriers such as gender stereotypes, discrimination, harassment, and insufficient institutional and infrastructural support. According to the United Nations, women judges bring different perspectives and experiences, strengthening judicial systems and women in leadership roles help disrupt networks of collusion, striking a blow against corruption.
Opportunity to introspect:
The International Day of Women Judges provides an opportunity to introspect what are institutional and social barriers, which impede gender equality in the administration of justice in the constitutional courts across the country. And, also what are the factors which impede upward mobility of women in the judiciary. Against the backdrop of dismal presence of women judges in the constitutional courts, it is apparent the collegium system is not enough to advance diversity.
Also, the women candidates who have been elevated to the Supreme Court have a short tenure. Justice B.V. Nagarathna, who was appointed to the Supreme Court in August 2021, will have a tenure as Supreme Court judge till October 29, 2027. Unlike most of her contemporary male judges, Justice Nagarathna’s tenure as Chief Justice will span little over a month.
Number of Women Judges in High Court and Supreme Court
The constitutional courts are not either legislative assembly or the Parliament, where a certain degree of presence of women would be enough to address the gender imbalance. There are 34 judges on the Supreme Court and it would not be arbitrary to suggest that, at some point in near future, finest women legal minds will be in double digit on bench in the top court, instead of three judges functioning currently. The situation is grim for the high courts: out of sanctioned strength of 1114 high court judges, only 111 are women, a shade above 10%.
According to the United Nations, by their mere presence, women judges enhance the legitimacy of courts, sending a powerful signal that they are open and accessible to those who seek recourse to justice.
Promoting Women Leadership:
Supreme Court judge Justice Hima Kohli, in March 2024, speaking at a programme organised by the International Arbitration & Mediation Centre, said promoting women to leadership positions will recognise the true value which they bring to the table as decision makers.
In January 2024, Supreme Court judge BV Nagarathna said the participation of women in the judiciary is not only a constitutional imperative but also a necessary step to achieve the goal of robust, transparent, inclusive, effective and credible judicial process. Delivering the 28th Justice Sunanda Bhandare Memorial Lecture in the national capital, justice Nagarathna stressed that having more women on the bench can contribute to a more effective space for the delivery of justice in India.
In November 2023, the Chief Justice of India D Y Chandrachud, speaking at a function to mark the 100th year of Bhimrao Ambedkar’s law practice, had expressed concern over lesser representation of women in higher judiciary, and said this could not be remedied overnight as the selection of judges had to be done from the available pool.
Sandra Day O'Connor, the first woman to sit on the Supreme Court, used to say “A wise old man and wise old woman will reach the same conclusion”. Justice O’Connor had criticized the theory that women bring a sensitive, empathetic and gentle perspective to the law. She died in December 2023 at age 93. The proposition that female judges decide differently, originates from the stereotypical notions that women have a certain innate way of decision-making, which is in stark contrast to men. A broad generalization, which one often comes across, is that there are differences between men and women in their approach to moral reasoning. However, empirical studies have not borne out a difference in judging.
The Allahabad High Court, which is the largest high court, having a total sanctioned strength of 160 judges, only 6 are women as on March 1, 2024. The situation isn’t pleasing in the Bombay High Court, the second largest high court, having a total sanctioned strength of 94 judges, only 10 are women judges. The Delhi High Court, which has a total sanctioned strength of 60 judges, has only 9 women judges, and the Madras High Court, which is the biggest high court in southern India, having a total sanctioned strength of 75 judges, only 12 are women judges. In 25 high courts in the country, only 10% are women judges.
Justice Gita Mittal, a former Chief Justice of High Court of Jammu & Kashmir, in a research article titled Women’s equal representation in the higher judiciary: a case for judicial diversity in India, said that structural problems with the judicial appointment of women are intersectional, compounded by factors like a lack of objectivity when evaluating merit, nepotism, and caste-based discrimination. The collegium system of appointments is insufficient in advancing diversity, which requires more large-scale reform, said the article.
A group of law professors -- NYU's Stephen Choi, Duke's Mitu Gulati and Chicago's Eric Posner, Mirya Holman – had explained the controversial question: whether judges of one sex are "better" than judges of another. The group concluded that the fact that female judges are selected from a shallower pool of talent does not imply that they are worse judges than men. In fact, the evidence suggests that they are at least as good as male judges, perhaps better, they said. Therefore, judicial appointments, which disrupt the homogeneity of the court are steps in the right direction and only if more women were to become judges on the high court benches, their dismal representation on the Supreme Court benches would change.
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