The Indian Supreme Court has delivered remarkable judgments on gender identity, sexual orientation, Sabarimala temple entry and adultery. But the actual progress of the Indian judiciary should be measured by the number of women in high positions. Since Independence, India has had a woman President, Prime Minister, chief ministers, governors but no woman Chief Justice.
It took almost 40 years to have the first woman judge, Justice Fathima Beevi, and 68 years for the Supreme Court to have the first directly appointed woman judge, Justice Indu Malhotra, among six male judges. Despite three women judges currently sitting in the Supreme Court, there seems to be no likelihood that we will have the first woman Chief Justice in the near future. There are already five male judges lined up to succeed the present CJI until 2025.
Babasaheb Bhim Rao Ambedkar had said, “I measure the progress of a community by the degree of progress which women have achieved”.
The Supreme Court was established in October 1935 and functioned as India’s federal court until it assumed its present form in January 1950. The initial strength of the judges was only eight — Chief Justice and seven puisne judges. As the number of cases increased, the number of judges also went up. Today, there are a total of 31 judges, including the Chief Justice of India. Since 1950, India’s Supreme Court has had 46 Chief Justices and 167 other judges.
There have been voices calling for better representation of women in the higher judiciary for some time. But the urgency has increased since Attorney General K.K. Venugopal’s remark about the identity of senior advocate Indira Jaising and the way the sexual harassment complaint against the present CJI, Ranjan Gogoi, was handled. Questions about women and judicial accountability are ubiquitous now.
But the lack of women’s representation in the judiciary cannot be discussed without addressing the structures of courts.
In spite of their competence, hard work and struggle, women lawyers are not recognised, except for the few second-generation lawyers. Courtrooms are most comfortable making male lawyers feel like they belong there, but they don’t make women lawyers feel the same way.
Senior advocate Indira Jaising recently mentioned that a senior male lawyer referred to her as “that woman” while he referred to other male lawyers as “my learned friend”. If this was the experience of a former Additional Solicitor General, one could imagine how difficult it would be for a first-generation woman lawyer.
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. Women having short hair and men having long hair, wearing studs have become a fashion these days but I don’t like it.” I replied that I have been keeping short hair since my school days. I also mentioned that I have migraine and can’t keep my hair tied for long, so I had it cut short. I pointed out to him that there is no bar council rule or code that prescribes the hairstyle of women. His response was, “Of course, there are no rules. But I am just telling my opinion.” Regardless of the judge’s comment, I was told by other male lawyers present in the court to apologise to the judge. Despite being the petitioner’s counsel in a transwoman’s police appointment case, I was mistreated, insulted and told to shut up by the judge.
One time, a senior counsel in the Supreme Court that I was practicing under didn’t take me to the court because I was keeping my hair open (which I did because of a migraine); another counsel asked me to quit and get married because I had asked for a day off during my periods. He went on to say that this is the reason why he never recruits women juniors. These incidents are not my experiences alone but of nearly every woman in the profession. Whether it is male lawyers or judges, conscious or subconscious bias against women lawyers are so ingrained that they are not able to differentiate between a joke and a derogatory or sexist remark. This under-valuing of women lawyers, besides not recognising their presence and professional competence, makes them invisible.
According to the Supreme Court’s list of senior advocates, only 4 per cent are women (16 against 400 men). While Maharashtra has the highest number of women lawyers, senior women advocates at the Bombay High Court account for only 3.8 per cent. When the number of designated senior women lawyers is disproportionately low, the chances of more women becoming judges also remain minimal. The 2019 report from the law ministry’s justice department validates this, recording the number of women judges sitting across the country’s 24 high courts, excluding Telangana’s, as mere 73 (or 10.8 per cent) out of the total 670 judges.
Why gender-diverse bench matters
A gender diverse bench reflects a bias-free judiciary. Many empirical studies show that having even one woman on a three-judge panel has an effect on the entire panel’s decision-making in gender discrimination cases. For example, had a woman judge been part of the Supreme Court’s three-member bench that decided on the misuse of dowry prohibition law, she would have brought a better view to the case so that even the misuse of such protective laws wouldn’t have been generalised by the court. Having women judges encourage more women to approach the system of law to report violence and crimes happening to them on a daily basis.
Is gender diverse bench enough?
Similar to how the post of judge has been historically monopolised by the male community, it is women from privileged backgrounds who dominate the few positions that come their way. And so, while there has been no Dalit judge (male or female) in the Supreme Court since the retirement of former CJI K.G. Balakrishnan in 2010, the top court has not had a single Dalit woman judge, and it is unlikely if India will ever have a Dalit woman CJI.
The presence of women judges from diverse backgrounds will bring structural changes in the decision-making process. Studies prove that personal values, experiences and many other non-legal factors influence judicial decisions.
If women in the judiciary hail from similar backgrounds as those of men, holding mainstream ideas and beliefs, the gender diversity has little to no payoff. Besides, the more socially diverse the judicial benches are, the stronger the judiciary is. This will improve public trust in the judiciary and increase access to justice.
How can it be achieved?
There should be an effective affirmative action workplan to have an adequate number of prospective women candidates, with especial focus on the fact that they come from marginalised groups. In addition, the criterion for designation of senior counsels should also be focused upon.
The Madras High Court norms require a lawyer to fulfil an income limit for the past three years for designation as senior counsel. Contrarily, not all women lawyers get well-paying clients. Even litigants are biased against women lawyers and they mostly prefer male lawyers with whom they can socialise well. There are many women who are in junior positions for 10-20 years and sent to courts mainly to obtain adjournments, because judges sympathise with young and women juniors. But when the matter relates to presenting strong arguments, offices send male juniors as judges take them more seriously. Moreover, clients in criminal cases feel prefer male lawyers. So, first-generation women lawyers who don’t get independent cases but intend to survive in the profession spend their entire careers as juniors in someone else’s office.
There are women who have dedicated their life and career defending victims’ rights pro bono, who otherwise cannot afford the legal fees, but these lawyers would still not be enough in the eyes of the court. Unless a special diversity programme is adopted to encourage and motivate women lawyers, the number of female students taking up law may increase but there won’t be women judges to inspire them to sustain in the profession.
The author is a Dalit lawyer practising in the Supreme Court of India and the founder-executive director of Legal Initiative for Equality. Views are personal.