By: Latika Vashist

“He was the son of a lawyer, often born into a family where the practice of law had been a tradition for generations. He was a Hindu and, more likely than not, a Brahmin. He was born in an urban area into a wealthy or upper middle-class family…He may have met the usual criteria of merit- integrity, professional competence, incorruptibility, and neutrality towards litigants- but was not selected for that reason. His religion, seniority, state and region of origin, among other considerations, were more weighty than merit as traditionally defined.”

George H. Gadbois, Jr. (2011), Judges of the Supreme Court of India

This is the description of the archetypal judge of the Supreme Court of India that Gadbois describes in his rigorously researched and recently published work on Indian Supreme Court judges during the period 1950-1989. The dominantly pervasive He in the above account speaks widely of the crisis of under-representation of women in the Supreme Court of India. It was not until October 6, 1989, that the Indian Supreme Court had its first woman judge, M. Fathima Beevi, who was appointed at the age of 62. This appointment though historic, was far from transformative for gender diversity on the bench. Since then only four more women have been appointed to the Supreme Court of India. Justice Sujata Manohar was appointed in 1994, Justice Ruma Pal in 2000. Justice Gyan Sudha Misra and Justice Ranjana Desai, appointed in 2010 and 2011 respectively, are presently serving in the Supreme Court. The figures in the High Courts are equally skewed:

High Court	Sitting Judges	Women Judges	% of Women Judges (as on Dec. 1, 2012)
Allahabad High Court	86	4	4.6
Andhra Pradesh	31	1	3.2
Bombay	55	6	10.9
Calcutta	41	5	12.2
Chattisgarh	12	0	0
Delhi	35	7	20
Gauhati	23	2	8.7
Gujarat	29	3	10.3
Himachal Pradesh	11	0	0
Jammu and Kashmir	6	0	0
Jharkhand	10	1	10
Karnataka	39	2	5.1
Kerala	30	2	6.7
Madhya Pradesh	32	2	6.2
Madras	50	7	14
Orissa	12	1	8.3
Patna	36	4	11.1
Punjab and Haryana	42	4	9.5
Rajasthan	22	4	18.2
Sikkim	2	0	0
Uttarakhand	8	0	0

 

It is astounding that the conspicuously dismal gender ratio of the judges in the higher judiciary (High Courts and the Supreme Court) in India has failed to generate any meaningful debate on gender diversity in the Indian judiciary. Any attempt to raise and discuss this concern is thwarted with the apprehensions that, at best, are articulations of a “trickle-up” theory (the increase in the number of women lawyers would automatically increase the number of women judges in high courts and the Supreme Court) and at worst assume the merit argument (i.e. when women will become competent and meritorious, they would definitely be appointed as judges!). And what we are left with is an appalling, absolute silence about this issue in spite of many questions requiring serious deliberation. What are the reasons for exclusion of women from judiciary? Why is it important to make an argument for inclusion of women in the judiciary? If representation of women judges is important, then what steps should be taken in India towards this end?

This paper seeks to open up the above questions in the context of the judiciary in India. I shall draw upon on a survey that was undertaken by Jindal Global Law School of O.P. Jindal Global University during May-July, 2012 to gauge the reasons behind poor representation of women in higher judiciary in India.

The survey questionnaire was circulated through email to around 1,500 advocates (in Delhi, Mumbai, Bangalore, Chennai and Allahabad) and law academicians (in law schools and faculties across India, including Delhi University, National Law Schools, Indian Law Institute). Despite repeated reminders, we (at Jindal Global Law School) received a surprisingly low response of 101 respondents who successfully managed to complete the online survey. Of those who did respond, 50.5% were law academics in India and others identified themselves as practicing advocates.

Due to the limited response which is hardly representative of the community of practicing advocates and professors, the findings of the survey cannot be taken as conclusive in themselves. Though the findings do not furnish any substantive evidence of the “real” reason behind the under-representation, I rely on these findings as signposts- indicators for further research on this scarcely researched issue. Without making any categorical generalizations, based on a very small sample, I shall use the findings to explore the issue and locate a theoretical position on the question of gender diversity in the judiciary.

Reasons for the Absence of Women from the Bench

Generally the absence of women from the bench is solely connected to the absence of women in litigation and the absence of senior women advocates. This, no doubt, is an important factor that limits the pool of women from which selection has to be made. The exclusion of women from the bar is also evident from the fact that the Bar Council of India (BCI) which is a national level body regulating the bar in India, is a body which predominantly, or rather entirely, is constitutive of men as its members. Out of the 20 current members of BCI, none is a woman. No Chairperson or Vice Chairperson of BCI till date has ever been a woman.

If this were not enough, there is a complete absence of women in the Committees of BCI. Not even a single committee is constitutive of women. Still further, it was pointed out in a recent study on women legal professionals in India that women constitute less than ten per cent of the Senior Counsels or Advocates-on-Record. These figures demand an inquiry into the systemic processes and structural apparatus which restrict conferment of responsibilities of power to women in the legal profession. To attribute the exclusion of women advocates from the pool of appointments to lack of meritorious women advocates is ignoring the structural and systemic considerations that are significant to women’s entry and progress in the judiciary.

It is noteworthy that while the majority of the respondents (34.5%), of the survey, believed that lack of meritorious women lawyers is not a barrier at all for women in entering the judiciary, a much higher percentage of respondents (62.1%) identified lack of transparency in the judicial appointments to be a significant barrier for women entering the higher judiciary in India.

The lack of transparency in judicial appointments became an endemic problem after the Supreme Court decision in Supreme Court Advocates-on-Record Association v. Union of India (AIR 1994 SC 268). In this judgment the court decided that a collegium, constitutive of the judges of Supreme Court and the Chief Justice of India, would be instrumental in appointments to be made in the Supreme Court. This radical interpretation took away the power of appointment from the executive and vested it solely with the judiciary. This extra constitutional logic of self-serving interpretation has been critiqued by both the bar as well as Indian academia. The Indian Judiciary has been accused of being the only judiciary in a democracy which appoints its own self! However, despite the long standing criticism the system goes on and higher judicial appointments remain shrouded in secrecy and non-transparency. This has foreclosed the introduction of all possibilities of diversity that move beyond tokenism. Around 60% of the respondents believed that it is the male dominated appointment collegiums that constitute as a major hindrance for inclusion of women in the higher judiciary. These figures are further corroborated by the fact that the gender-ratio of judges in the subordinate judiciary, where appointments are based on objective criteria of open competitive examination, is considerably better than the High Courts and the Supreme Court. Trickle-up to high courts and Supreme Court does not happen since the criteria of selection and appointment at the higher echelons of judiciary remains largely a subjective issue.

It was also pointed out by 42.5% of the respondents that disproportionate family and household burdens, and lack of educational opportunities (48.2% of respondents) constituted significant barriers for women’s entry into higher judiciary in India. Interestingly, more than one-third of the respondents (35.6%) felt that gender stereotypes about women being too emotional, sentimental and irrational was not an obstruction for women (though 27.5% of them felt that it was a significant barrier for appointment to the Supreme Court). Owing to the small sample size these findings may not be sufficient to draw generalizations, but they do call for establishment of gender task forces to surface hidden forms of gender- based discrimination faced by women legal professionals.

Why Should Women be Included in the Judiciary?

Difference Argument

Many claims for inclusion of women in the judiciary are couched in the language that women judges would speak in a different voice. One respondent remarked that women judges would “address gender specific issues” and their presence would ensure “a more humane approach towards gender related offences.” It was also said that women judges would “understand diverse emotional and social complexities.” Women judges, it is believed, would understand women related issues better than their male counterparts and thus substantially improvise and feminize the quality of justice. 62.4% (76.08% of them were women) believed that women will bring “a valuable and new perspective to the bench.” Here it is important to fully understand and unpack the expression “valuable and new perspective.” Would women judges bring a new perspective because their sex makes “women have better conflict resolution skills” (as suggested by one of the respondents)? Or, because, women are better at understanding women-related issues (as 23.8% respondents emphasized)?

The argument that differences based on sex would lead to discernible differences in rendering judgments because women think differently than men, is not based on any empirical evidence. Moreover, this simplistic connection between sex and thought-process is fraught with the dangers of essentialism, i.e., it makes an assumption of an essential quality of “womanness” shared by all women, and only women exclusively. Such an assumption imagines a universal category of “woman” without any internal divisions and disagreements. It assumes that every woman is automatically a feminist, merely based on her sex and thus obfuscates the distinction between “sex” and “gender”, the latter being a social construct that symbolizes power. Using sex/biological status as the variable for greater representation in the judiciary fails to locate the adjudicating capabilities of the judge in his or her class, region, ethnicity, generation, educational background, judicial philosophy, etc.

The corollary to this essentialist claim—it is impossible for women to represent men, just like it is impossible for men to represent women—can potentially disadvantage women by restricting their judicial functions only to women and children-related issues like juvenile justice, divorce cases, sexual harassment, etc. Apart from pinning women judges to stereotypes about women—the ethic of care, emotions, greater sensitivity—such a rationale diverts attention from the immediate need for gender training for all judges notwithstanding their biological status or sexual orientation. Gender symbolizes power. Understanding gender would, on one hand, unmask the reality of patriarchal power being exercised by woman, on the other hand, would enable us to appreciate the fact that many “feminist decisions” in the history of Supreme Court of India have been delivered by the male judges.

Diversity Argument

53.6% of the respondents rejected the aforementioned difference argument and stated that “the outcome is not dependent of the sex of the judge”. A female respondent, a practicing advocate, stated that she has witnessed “shocking statements made by women judges in gender-related violence cases as well!” So, if the difference argument is rejected, should a claim for greater women in judiciary still be made? The answer is in the affirmative.

Having more women on the bench is important not because that would change or improve the decisions of the court, but because it would lead to greater diversity of views and experience which in turn would enhance the quality of judicial decision making. This gives a new meaning to the expression “valuable perspective.” Women would bring valuable perspectives not because they are women but because their presence on the bench would make judiciary more diverse, inclusive and reflective—values that would significantly contribute to the legitimacy of the institution. The legitimacy of the judiciary rests in the institution being seen and respected as an impartial and fair institution. Adequate (if not proportionate) representation of women on the bench would play a significant role in enhancing the de facto legitimacy of the judiciary as a democratic institution. On one level, it would deconstruct the hegemonic “social meaning” that women do not make good judges, on another level it would reconstitute the judiciary as a reflective body—reflective (and thus representative) of almost half the population of the country. The presence of women on the bench would counteract the “perception of bias” against women, even if it does not make any substantive difference to the outcome of the cases. This essentially turns the argument from difference to diversity. This shift signifies fair and equal access to justice for all, compared to the outcome-based argument based on difference. A woman judge may not decide the case differently than a male judge, but a woman litigant may perceive the outcome to be the result of a fair and impartial trial. So it is for its own credibility and effectiveness that the judiciary should be striving for gender diversity.

Affirmative Action for Gender Diversity in the Judiciary

The crisis of under-representation of women in the judiciary needs to be addressed with concrete action towards inclusion. What form should such affirmative action assume? In India, affirmative action is understood in terms of reservation of a fixed number of seats. The Constitution of India mandates 33% reservation for women in the elections of lowest tier of governance- Panchayats.

There is a long pending Bill for reservation of 33% seats for women in the Parliament. There is also a provision of horizontal reservation for women in lower judicial service examinations. Should the same scheme of reserving a fixed number of seats be extended to High Courts and Supreme Court of India? 45.1% of the respondents of the survey stated that there should be affirmative action for women in the judiciary but it should not take the form of reservation of seats. 58.5% of the respondents said that reservation is not a good strategy at all to increase women’s participation in higher judiciary. It was instead pointed out by 76.5% respondents that it is very important that appointment process should be solely based upon merit.

This takes us back to the politics of “diversity” versus “merit” where the two are set as antagonistic and competing goals. There is no doubt that reservation may not be a workable solution because of the perception that it would compromise merit, but merit cannot be considered solely and exclusively to vest with men

To resolve the myth of merit, it is significant to deconstruct the notion of “merit.” Are quotas/ reservations inherently against merit? Or is it possible to think of gender diversity as constitutive of a meritorious judiciary. If an individual’s appointment enhances the legitimacy of the judiciary as a democratic institution—does it not qualify as an appointment based on merit? These are extremely important questions that need extensive debate and discussion amongst practitioners as well as theoreticians.

It is also very important to understand and explore the meaning(s) of affirmative action. Is affirmative action synonymous with quota/ sex based reservation of particular number of seats, or does it have the potential of taking multi-faceted dimensions according to the position/ office/ institution in question. The survey reveals that in the higher judiciary in India, affirmative action can acquire the form of systems that make appointments to higher judiciary more transparent (as emphasized by 62.2% of the respondents).

It can also concurrently mean that the current system of appointment (of male dominated collegiums) should be changed to include more women on the appointment panel (suggested by 47.6% respondents). But the question is whether more women on the collegiums would automatically produce more women judges? Sally J. Kenney in Gender and Justice: Why Women in the Judiciary Really Matter (2012) argues that merely having a critical mass of women would not necessarily increase the number of judges in the future. She argues that concerted steps introducing qualitative changes in the judiciary should be taken to train collegiums/ judges to avoid discrimination and stereotyping and to secure a gender diverse bench a priority of the appointment process. Here, it is pertinent to note that the Indian Supreme Court has maintained considerable regional diversity so that the Apex Court represents all the regions. A similar approach should be adopted for securing gender diversity. It may require setting guidelines for the appointment process (constitutional amendments making diversity an explicit goal on the lines of section 174(2) of South African Constitution; adopting new strategies (open advertising for candidates for judicial appointments) or even creating new institutions (e.g., Judicial Appointment Commission, U.K.). Immense benefit can be drawn from the experience and strategies adopted in other jurisdictions to achieve this end.

The survey, on one hand, emphasized the need to secure gender diversity, on the other hand, maintain ‘merit’, to be the most significant consideration in judicial appointments. It also opened up possibilities to think beyond quota-based reservations for women in the judiciary. Affirmative action towards gender diversity must take the form of overhauling structural changes in the process of appointments. To prevent the higher courts from turning into “old boys clubs,” the establishment of a more inclusive system of appointment, which is not limited to sitting judges, is imperative. The legitimacy of the Indian legal system is dependent on whether the judiciary reflects the total fabric of society and whether its decisions are responsive to the needs of different segments of the society.

To achieve these twin goals, we first require more women (irrespective of whether they are feminists) and then more feminists (irrespective of whether they are women) on the bench.

Latika Vashist is an Assistant Professor and Assistant Director (Clinical Program) at Jindal Global Law School of O.P. Jindal Global University. Her areas of research include feminist legal theory, policy of criminalization and criminal law, and constitutional law. She can be reached at latikavashist@gmail.com.