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Appointment as a judge to the higher judiciary is still a mirage for most women lawyers: Here is why it is unlikely to change in the near future

Even as the annual data on the number of women judges in the higher judiciary continues to disappoint, it is unlikely to change for the better in the near future because the conventional yardsticks used for assessing women lawyers for appointment as judges are not satisfactory.

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DATA shared in the Parliament on women judges in the high courts reveals a poor representation of female judges in the higher judiciary. Of the working strength of 728 judges (the sanctioned strength of high court judges is 1,108) in the 25 high courts in the country as on August 1, only 96 are women judges. It is also a matter of concern that the high courts of Manipur, Meghalaya, Patna, Tripura and Uttarakhand have no women judges, even though they have a sanctioned strength of 5, 4, 53, 5 and 11 judges respectively. The high courts of Delhi and Madras have the highest number of women judges (12), followed by the high courts of Telangana and Bombay, with 9 and 8 women judges respectively.

Of the 31 judges currently in the Supreme Court, only four are women.

 The Union Minister of Law and Justice, Kiren Rijiju, shared the information in the Lok Sabha, in response to a question on August 5.

This is not to deny, however, that there has been a slight increase in the strength of women judges, both in the Supreme Court as well as across the high courts. In 2020, when a similar question was asked in the Lok Sabha, the then Union Law Minister, Ravi Shankar Prasad’s reply had revealed that there were two women judges in the Supreme Court and 78 women judges in the various high courts. However, even then, the high courts of Manipur, Meghalaya, Patna, Tripura and Uttarakhand had no female judges.

In the latest instance in the Lok Sabha, Law Minister Rijiju responded to a set of questions posed by the Bharatiya Janta Party’s Member of Parliament from Rajsamand in Rajasthan, Diya Kumari. She sought to know whether the Union Government had any data on the number of women and transgender persons in the judiciary during the last ten years; whether the government has taken any steps to make the judiciary more accessible and inclusive for women and transgender persons, and whether the government has any plans for providing reservations to women and transgender persons in the judiciary.

Rijiju told the Kumari and the Lok Sabha that the appointment of judges of the Supreme Court and High Courts is made under Articles 124217 and 224 of the Constitution, which do not provide reservation for any caste or class of persons. The Minister, however, added that the Union Government is committed to social diversity in the appointment of judges in the higher judiciary, and has been requesting the Chief Justices of high courts that while sending proposals for appointment of judges, due consideration be given to suitable candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities and women, to ensure social diversity in appointment of judges in high courts.

The Minister also revealed data on working women judges in the District and Subordinate Courts. A total of 3,719, 1,611 and 1,435 women judges are working as Civil Judge (Junior Division), Civil Judge (Senior Division) and District Judge, respectively. The sanctioned strength of judges in the district and subordinate judiciary is 24,631, while a total of 19,288 judges are presently working, leaving a total of 5,343 clear vacancies.

Last year, Chief Justice of India (‘CJI’) N.V. Ramana pressed for fifty per cent representation of women in the judiciary. He called it the right of women and not a matter of charity. The Chief Justice was speaking at the felicitation of newly-appointed judges by women advocates of the Supreme Court.

Earlier this year, CJI Ramana revealed that the collegium headed by him had recommended the names of a total of 192 candidates for appointment to different high courts. Of these, 37, that is 19 per cent, were women.

“This is certainly an improvement over the percentage of incumbent women judges in high courts, which stands at 11.8 per cent. Unfortunately, so far only 17 of the 37 women recommended to high courts were appointed. Others are still pending with the government,” the CJI said in his address at an online event to mark the first-ever ‘International Day of Women Judges’ in March this year.

Former CJI S.A. Bobde, citing Chief Justices of high courts, had last year said that women advocates often refused to become judges because of domestic responsibilities, such as the education of their children. He was explaining the paradox of our achieving success in ensuring a woman CJI in the near future (Justice B.V. Nagarathna is slated to become the CJI on September 23, 2027 upon the retirement of Justice Vikram Nath), while the number of women in the higher judiciary continues to be poor, because of the responsibilities expected of women at home.

Justice Bobde’s view led to the expression of sentiment among women lawyers that women should be given institutional support to address this structural inequality. Others have underlined peculiar facts relating to the recruitment of judges in higher judiciary, which explain this gender imbalance: absence of an application system for the position of judges, and the all-male collegium that appoints judges.

Speaking at a round-table discussion organized by the Indian Feminist Judgments Project on ‘Feminism in Practice: Feminist Lawyering and Feminist Judging’ in 2018, Justice D.Y. Chandrachud, who is slated to take over as CJI in November, had said that the inability to get more women judges on the Bench can change only if the conventional yardsticks for assessing women lawyers are broken.

According to him, the “yardsticks” used to assess women lawyers are not gender-neutral, which is one of the reasons for the lack of women judges in the higher judiciary.

Elaborating, Justice Chandrachud had said that some of the main criteria considered for elevation to the Bench include the number of reportable judgments one has procured, the income garnered from these cases, and so on. “If you need a greater sense of inclusivity in the Judiciary, then the yardsticks will have to be changed and it won’t work by merely changing the Collegium system or any other system”, he had observed.

Reacting to the low representation of women in the higher judiciary, senior advocate Indira Jaising, said that in order to increase the number of women judges, one need to encourage women lawyers at the Bars, since those are the source from where they will come.

“Every woman lawyer knows she begins with a handicap, namely discrimination based on sex. We don’t need to be judged by different yardsticks we need the barrier of discrimination to be removed”, Jaising opined.

Further, Jaising noted that women lawyers seem to be more accepted in transactional work than in litigation, but judges will come from courtroom litigators or district courts.

“The pool of talent needs to be widened and we need diversity in the appointment of judges. More Dalit women judges, not just more women judges”, she added.

Brahmanism, Jaising said, has a strong hold on the judiciary, and that needs to stop.

“The kith and kin of judges are frequently promoted, and that needs to stop. Then you will see not only more gender balance in the judiciary, but more class and caste. Diversity within women judges and first generation women judges”, Jaising pointed out.