Closing The Gender Gap In The Higher Judiciary

There is a substantial increase of women in the lower judiciary, with states like Telangana having more than 50% of women judges, but the numbers in the higher judiciary tell a very different story. The Supreme Court has only 2 women judges (6%) out of its current strength of 33 judges and historically, only 11 judges (3.6%) in the Supreme Court have been female.

In the High Courts, only 14.27% of judges are women. In the High Courts in Uttar Pradesh, Bihar, Chhattisgarh, Himachal Pradesh, Jharkhand, Madhya Pradesh and Rajasthan, the percentage of women judges is in the single digits. Only 12 out of 242 judges in the High Court Chief Justices have been women (less than 5%) and currently there is only one woman Chief Justice of a High Court.

There has never been a woman Attorney General or Solicitor General appointed, and the highest position that women have been appointed are as Additional Solicitor Generals in the Supreme Court with the first ASG appointed only as late as in 2009. There have been no women Advocate Generals of any State. Even amongst these low numbers, the number of women from marginalized backgrounds such as from Dalit / Adivasi communities, Muslim and Christian women is almost negligible.

When the gender gap in the higher judiciary is raised, the responses often range from there not being enough women lawyers to choose from, that merit cannot be compromised, or that women are not interested.

These responses are largely anecdotal and not based on any empirical data or research. A big concern is that there is not enough data on women in the legal profession, which would help us frame guidelines for addressing the gender gap in the higher judiciary.

There are several reasons for this gender gap. Appointments to the higher judiciary are through the Collegium, whose process for selection is opaque. While the Collegium keeps in mind state-wise representation on the Supreme Court and takes caste and minority representations into account, there is no stated objective of requiring a gender balance in the higher judiciary.

We need to acknowledge that a huge barrier for women's elevations is the deep-rooted patriarchy and gender stereotypes in the legal system. Female lawyers who are nominated for judgeship face heightened scrutiny and are required to cross higher eligibility barriers than their male counterparts. The question is not at all about compromising merit, but women are required to prove merit that is far higher than men.

From conversations with former members of the Collegium it is learnt that even when names of women lawyers are recommended, they are quickly vetoed especially if she is young, with the fear that “she will become the chief justice”! Instead of recommending women at the right time in their careers for the higher judiciary so that they can reach senior positions of Chief Justices of High Courts, this becomes a ground for their rejection. These kinds of biases severely disadvantage women, especially women from marginalized backgrounds.

Under the South African Constitution, Section 174(2) requires that: 'the need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.”

This was also stated by J. Pandian in the Second Judges case where he stated that, “It is essential and vital for the establishment of real participatory democracy that all sections and classes of people, be they backward classes or scheduled castes or scheduled tribes or minorities or women, should be afforded equal opportunity so that the judicial administration is also participated in by the outstanding and meritorious candidates belonging to all sections of the society not by any selective or insular group……If the vulnerable section of the people are completely neglected, we cannot claim to have achieved real participatory democracy”

Despite this, the requirement of gender as an explicit criterion to be kept in mind for appointments to the higher judiciary to ensure that our higher judiciary reflects the needs of a participatory democracy has never been taken into account.

The European Court of Human Rights, in 2004, to address women's underrepresentation at the Court, adopted Resolution 1366 and introduced a gender “balance” rule, requiring that no list of candidates would be considered unless it included at least one candidate of each sex. Since its adoption in 2004, States submitted lists for the election of their ECtHR judge containing at least one female candidate and the female representation improved.

If we want to ensure that there should be 50% of women in the higher judiciary, including women chief justices of High Courts, the Supreme Court Collegium needs to do the following among other things:

• Lay down guidelines for its Collegium and for all the High Court collegiums that while considering names for elevation, the need for the judiciary to reflect the gender composition of the country has to be kept in mind.
• There must be a mandatory requirement that every list of names sent by High Court Collegiums should include names of women.
• The Supreme Court Collegium while considering the names, should have clear guidelines for evaluating criteria of merit and capability of candidates, to ensure that there is no partiality or patronage in the selections. This would not only enable women's appointments but also make the Collegium more transparent and accountable.
• Appointments of women to the High Court and the Supreme Court should be made equally from the Bar and not belatedly in their careers. The current selections of women judges in the High Courts show that they do not confirm to the 1:3 ratio and are largely from the district judiciary, and there are reduced numbers from the Bar.

We need a judiciary where women are fully included at all levels and are rising, so that it truly reflects the core values of our constitution and of a participatory democracy. The higher judiciary is one of the highest measures of a legal professional's rise and success in the field and women lawyers must be able to reach these positions equally. It is time that we get more women in judicial leadership and in equal numbers in the High Courts and the Supreme Court. Women lawyers are not going to wait another 100 years for this to happen. We want to see this change in our lifetimes and be the beneficiaries of this change.

The author is a Senior Advocate, views are personal.