B.R. Ambedkar, the first law minister of India, once said, “I measure the progress of a community by the degree of progress which women have achieved.”
Going by that statement, it’s clear our legal system has not fared well.
In India, since Independence, we have witnessed women taking high posts like a chief minister in 1963, prime minister in 1966, and president in 2007. But in the 71 years of the Indian Supreme Court, we have not yet witnessed a single woman Chief Justice of India, nor have we seen any women attorney general or solicitor general. With the retirement of Justice Indu Malhotra and Justice R. Bhanumati, the lone women judge in the Supreme Court is Justice Indira Bannerjee. Concerns can be heard from the cloistered corridors of the Supreme Court, urging the addition of more women judges to the top court.
The SC, in the recent past, has delivered some landmark judgments on gender inequality, sexual harassment, and women’s inheritance rights. But no women judges were part of the benches that made these decisions.
According to current figures, women make up roughly 48% of the country’s population with about 3.3% making it to the high courts of different states. Out of a total of 1,079 judges of 25 high courts in India, there are only 82 women judges – which constitutes only 7.5% of the total strength.
This discourse and criticism of not having women judges in the higher judiciary is not new. It has been brewing for a long time, since the first women judge, Justice Fathima Beevi, was appointed to the apex court in 1989 – a whole 39 years after was established.
At present, as noted earlier, there is only one woman judge in the SC. There are several high courts in the country that do not have any women judges serving on them.
Gender-diverse rosters are particularly important in gender equality in court cases. It represents a judicial system that considers various points of view and issues before reaching a verdict. Empirical findings indicate that even including one woman in a three-judge panel affects the whole judgment process in instances including gender inequality and sensitive matters of sexual violence/harassment. The presence of women justices also inspires more women to pursue careers in the legal system and investigate abuse and crimes.
Women and judicial transparency are often debated topics. However, the absence of women’s inclusion in the judiciary cannot be addressed without tackling the central issue of elevating women judges to the same level as their male colleagues.
Recently a group of women lawyers knocked on the door of the SC and as the petition was being heard, the court sent a notice to the attorney general to solicit his thoughts and opinions on the matter. While submitting his written submissions the general argued that strengthening women’s inclusion in the judiciary could go a long way toward achieving a more equitable and socially aware stance in cases.
Justice D.Y. Chandrachud even worryingly lifted his voice during his farewell speech to Justice Indu Malhotra, noting that it is a profoundly concerning matter that the SC will be left with only one woman judge after Justice Malhotra’s retirement. He went on to say that “having a more representative judiciary means [that] plurality of views is equally treated, instilling a high degree of public confidence.”
If somehow the criteria for advancement to the higher judiciary is merit-based, combined with equal treatment for the various sections of the society, it does not seem to be working in the case of women. Women lawyers who have achieved great popularity in the country have been repeatedly shunned or refused admission to high positions for no defendable cause.
Women having a presence in our country’s higher judiciary has been entirely symbolic. The current structure of the Supreme Court does not seem to indicate that a woman CJI will be appointed any time soon. Justice B.V. Nagaratha of the high court of Karnataka was designated as a justice on February 2, 2008, and will retire on October 29, 2024. If she was to be appointed to the Supreme Court, she would become the first woman Chief Justice only in February 2027.
There must be an ambitious diversity management strategy in place to ensure enough prospective women applicants and a judiciary that represents the citizens of the country. It is for the newly appointed CJI N.V. Ramana and the collegium to recommend and improve gender equality in the Supreme court of India, while the onus is on the government to widen its scope and appoint meritorious women lawyers as attorney general and solicitor general.
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