R Hemalatha “I measure the progress of a community by the degree of progress which women have achieved,’’ B R Ambedkar had said. Going by this, the judiciary isn’t faring too well. In the 74 years since Independence, women have held the high offices of the President, Prime Minister, and chief minister, but the corridors of Indian judiciary is yet to see a woman occupy its highest office — the Chief Justice of India.

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Missing women of the judiciary
Apr 7, 2021, 04:15 IST
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R Hemalatha
“I measure the progress of a community by the degree of progress which women have achieved,’’ B R Ambedkar had said. Going by this, the judiciary isn’t faring too well. In the 74 years since Independence, women have held the high offices of the President, Prime Minister, and chief minister, but the corridors of Indian judiciary is yet to see a woman occupy its highest office — the Chief Justice of India.

Over the past couple of years, various judgements were delivered by the Supreme Court on gender discrimination, sexual violence and coparcenary rights of women, but those involved in the decisions were not women. The present statistics shows women constitute nearly 48% of the country’s population, of which around 3% have made it to the highest courts of the various states, which again begs the question why no woman has been appointed as the Chief Justice of India.
The country took almost 40 years to have its first woman judge, Justice Fathima Beevi in 1989. The count of women justices on the bench has been underwhelming too, as only two of these 80 women judges are in the Supreme Court and the remaining in various high courts, comprising only 7.2% of the total number of judges. There are many high courts across the country where there are no sitting women judges.
Gender-diverse benches play a key role especially in the field of gender sensitivity in cases arising in courts. It reflects a judiciary that takes into account different opinions and concerns before coming to a conclusion. Empirical studies show that having even one woman on a three-judge bench influences the entire decision-making in gender discrimination and sensitive cases. Having women judges also encourages more women to approach the system of law to report violence and crimes.
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It is important to have women judges from diverse backgrounds to ensure structural changes in the decision-making process. Studies prove that personal values, experiences and 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.
In India, voices have been demanding for better representation of women in the higher judiciary for quite some time now. The questions about women and judicial accountability are common, the lack of women’s representation in the judiciary cannot be discussed without addressing the core issue of elevation of women judges to that of their male counterparts.
Attorney general K K Venugopal recently suggested that improving the representation of women in the Supreme Court could go a long way towards a balanced and empathetic approach in cases involving sexual violence. At present, the apex court has only two women judges as against a sanctioned strength of 34 judges. There are only 80 women judges, of the sanctioned strength of 1,113 judges in the high court and the Supreme Court, he said. Despite their competence, hard work and struggle, women lawyers are not recognised.
If the criterion for elevation to the higher judiciary is based on merit coupled with equitable representation for the varied strata of society, it appears to be not working by design in the case of women. Highly successful women lawyers in the country have been consistently shunned or denied access to high offices without proper reason. While talented women are waiting in the wings, it is justice that is taking a beating.
The representation of women in the higher judiciary of our country has been merely symbolic. The present composition of the apex judiciary does not appear to show any likelihood of a woman CJI occupying the high office any time soon. There needs to be an effective affirmative action plan to have an adequate number of prospective women candidates and ensure a judiciary representing the people of the country. As Ruth Bader Ginsburg, the second woman to serve as the Supreme Court Justice in the US and a lifelong advocate of gender equality, would often joke, there would be enough women on the nine-seat Supreme Court “when there are nine”.
(The writer is a Madras high court advocate)