Why Are We Still Asking For Female Representation In India's Higher Judiciary?

Female Representation In Higher Judiciary: “Suppose I tell you, ‘Look there is a nurse coming’ and if a man comes, you will still keep looking,” said Justice Prabha Srdevan, a retired judge of Madras High Court.

According to her, women in the Indian judicial system face a similar kind of profiling. She pointed out that many people have the misconception that women lawyers practice only in family courts, whereas something like tax law is a male lawyer's job. Judiciary in India, according to Justice Sridevan, is an "old boys club".

Justice Sridevan said, “We subconsciously, and without intending to discriminate, are constantly labelling people.”

Is this the reason behind the severe lack of female representation in the Indian judicial system? Because we are still not used to seeing women as a lawyer or a judge? The answer to this question is very complex, according to Justice Sridevan. Time and again, the judiciary has been questioned “why are there still so few female judges in higher courts?”, but there has hardly been a satisfactory answer to the question.

The question was recently raised again in the Supreme Court, in front of a bench headed by the former Chief Justice of India Sharad Arvind Bobde. The Women’s Lawyers Association when put forward the data which showed serious imbalance between the number of male and female judges practising in higher courts, the former CJI gave an answer that puzzled many and infuriated some.

He said, "The Chief Justices of High courts stated that many women are invited to come as judges. But they have declined, citing domestic responsibilities about children studying in Class 12 etc and Chief Justices of High Courts reported to me. These are things we can’t discuss.” During the same hearing, he said that it is time that India had its first woman Chief Justice of India.

Justice Sridevan called ex-CJI’s statement “simplistic”, while she did not disagree with the statement, she said domestic responsibilities cannot be the only reason. She further said, "Domestic responsibilities should not be gendered".

N S Nappinai, Advocate at Supreme Court and founder of Cyber Saathi, thinks that the reason is the “absence of appointment of women judges”. She said, “There are so many women practitioners today. How many of them have been asked? For that is how the system still works.” When asked to comment on whether women are denying judge duties because of their domestic responsibilities, Advocate Nappinai said, "It would be gravely deleterious to generalise individual actions or refusals, which may not necessarily be for reasons mentioned."

When we compare the higher and lower judiciary, we find that while the lower judiciary has 27% of female judges, the high courts have only 10% and the Supreme Court is not even at one per cent, according to the Vidhi Legal Policy report. As we reach closer to the tip of the judicial pyramid, we see fewer women.

It is difficult to pinpoint why women are not being appointed. According to a Civil Judge at a lower court in Uttar Pradesh, women are not able to become part of certain “circles”. The circles that are often filled with people who enjoy influence and power or are simply male-dominated.

While speaking to SheThePeople, the judge shared the first time she personally felt the underrepresentation of women in her line of work. It was during her interview, she said, “I belong to a batch which had almost 50% women qualifying the exam and when I went for the interview, I stood in front of a five-member panel without a single woman."

Even if one assumes that women are themselves denying judge duties, is the system not responsible to find out why? Justice Sridevan said, "A concerted effort needs to be made by the judiciary to include more women."

According to a report in 2019, about 15 per cent of courts in India do not have a women's toilet. Another report showed that only about 40 per cent of 555 district courts in India have functional women's toilet while 100 districts do not have toilet facilities for women. Women judges who join as Magistrates also are made to transfer every three years, this can be seen as another hitch in the path to fill the gender gap in the judicial system as the defined gender roles in the Indian society makes it difficult for women to stay away from their homes for their careers.

Why is it important to have female judges in the courts of law?

According to Advocate Nappinai, the presence of more women as judges is important not because they are more empathetic compared to men. "Empathy is gender neutral," she said. She wants to have equal representation of women because she wants women judges to be less apologetic. She said, "Their conduct appears to indicate that they are probably being more cautious and more fearful merely because they are women."

"The ability to think and act without your gender weighing on your mind is critical," she added. The judicial system being an integral part of India's democracy needs more female voices. The issue here is not how female judges give different rulings compared to men and how they understand female perspective better because male or female both should be able to do that in the court of law. For a country that has almost 50 per cent of its population female, its judicial system with less than 10 per cent female judges is simply not enough.