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The Article ‘Women in Judiciary‘ is an extensive study on the less representation of women in the higher judiciary. The author blames social, historical, and institutional defects as the leading factors for this issue. The author praises that the position of women is increasing both in power and responsibility but is saddened to see still lagging behind as compared to males. It is true to say that male dominates in this field and thus women are not rising as per their abilities. There are few states where cannot be seen even a single woman representative on the bench.
There are ample reasons why women should be couraged in the judicial representation such as female victims will become more comfortable in sharing the incidents in detail, definitely, a woman judge can be a better example for the female law students to pursue their careers.
Domestic pressure, social reasons, and many more are major causes for the low representation of women both in the judiciary as well as in litigation. Even judges of the apex court have now taken a stand and especially women judges of the Supreme Court of India for encouraging women to be part of the judiciary. In the words of Malala Yousafzai, “I raise up my voice not so I can shout but so that those without a voice can be heard…we cannot succeed when half of us are held back.” So, the author wishes to see a greater improvement in this imperfect representation of women in the judiciary.
Introduction: Women in Judiciary
Truly said by Ruth Bader Ginsburg (the Second female judge of the Supreme Court of the United States)
“women belong in all places where decisions are being made…It shouldn’t be that women are the exception.”
The skewed representation of women in the judiciary is a result of social, historical, and several institutional defects. Although, across the world, we do see the representation of women increasing in positions of power and responsibility, including the judiciary, the same is still far from the ideal situation. Another famous statement by Justice Ruth Ginsburg may be quoted here. When she was asked how many of the nine judges (total strength of the bench) on the United States Supreme Court should be female, and when there will be enough women on the bench, Ruth Bader Ginsburg simply replied, “When there are nine.”
Statistics: Representation of Women in Indian Higher Judiciary
In India, we have had 11 female judges in the Supreme Court of India, as of May 2022. Currently, out of the total of 33 sitting judges, we have four female judges at the Apex Court, namely, Justice Hima Kohli, Justice Indira Banerjee, Justice Bela Trivedi, and Justice BV Nagarthana.
In fact, it has taken 40 years for India to get her first female Supreme Court judge, i.e. Justice Fatima Beevi and it is only 28 years after that, that we got out first female supreme court judge, who was directly elevated from the Bar, i.e. Justice Indu Malhotra.
As of May 2022, there are a total of 94 women judges across all High Courts in India out of a total of 713 judges i.e. only 13.18% of judges are female. Moreover, 5 states have absolutely nil representation of women on the bench, namely Manipur, Meghalaya, Patna, Tripura, and Uttrakhand High Courts. In fact, it was only in 1991 that an Indian High Court (i.e. Himachal Pradesh High court) got its first female Chief Justice, Justice Leila Seth.
Disproportionate Representation of Women in Judiciary: International Phenomenon
The research survey conducted by Organisation for Economic Co-operation and Development (OECD) reveals that disproportionate representation of women in the judiciary is a rather international phenomenon. According to the research, women make up only 33.6 percent of Supreme Court judges globally. This trend is reflected in the proportion of presidential positions held by women. Women hold 45.9 percent of the lower court presidency, 28 percent of the appeals court presidency, and 18.6 percent of the High court presidency.
In fact, it was only last year, that Pakistan got its first-ever female Supreme Court judge, Ayesha Malik; and only this year that the United States Senate approved the name of the first black woman, Ketanji Brown for the judgeship of the Supreme Court.
Considering this inadequate representation of women that the United Nations General Assembly Resolution 75/274 designated 10 March as the International Day of Women Judges, to be observed across jurisdictions.
Importance of representation of women in the Judiciary
The representation of women in the judiciary is important as the absence of female representation in courts calls into question the court’s legitimacy as representatives of the societies they serve. The values of “inclusivity”, “diversity”, and “equality”, that form the guiding principles of the judiciary should be duly reflected in the constitution of the bench.
Moreover, the presence of women judges is important to deal with a certain particular type of exotic offence. At the trial stage, Section 26 of the Criminal Procedure Code, 1973 provides that offences of rape, outraging modesty, etc should be tried by a woman judge. This requirement should ideally be equally applicable to the appellate courts as well. The presence of women judges at the High Courts would enable better adjudication in cases committed against women, in specific. Moreover, it would also create a comfortable space for the victim to give her testimony.
The presence of women judges is essential for another reason i.e. encourage fellow female students to pursue a career in law. It would demonstrate the equal opportunity for women in the bar, as well as an impartial and non-discriminatory selection procedure that creates a level-playing field for all alike.
Increased judicial gender diversity at the bench is expected to strengthen the ability of judicial reasoning to encapsulate and adapt a wide range of social situations and experiences.
This is expected to lead to a more empathetic approach toward gender equality and the progress of the vulnerable group in society.
Reasons for low representation of women in the judiciary
1. The profession of law is a historically male-dominated profession
The legal profession has been historically observed to be a male-dominated profession. The legal profession is stereotypically seen as a profession of “outwardness”, and “argumentativeness”. The historical divide of gender roles never allowed women to go to the courts, and argue. This has percolated to lead to a divide in the current situation as well.
2. Domestic Responsibilities
Due to prevailing gender stereotypes, women are made solely responsible for handling domestic responsibilities. In fact, as per the Time Use Survey of 2019, an Indian woman spends an average of 7.8 hours doing domestic work, as opposed to 2.3 hours of male work.
3. Poor representation of women at the Bar
A major part of the higher judiciary is constituted by the advocates elevated from the bar. The representation of women in the profession of litigation has been low, and their representation in the higher judiciary automatically falls. As per the statistics, only 15% of the total advocates registered in India, are female. In fact, as per statistics, only 2/04% of the elected representatives in State Bar Councils are women.
4. Social Reasons
As per the Constitution of India, practicing advocates must have seven years of “continuous legal practice” and be between the ages of 35 and 45 to be appointed to the cadre of the District Judges. Women are disadvantaged in this respect because many are forced to marry at this age. Furthermore, the legal profession’s arduous responsibilities, combined with a woman’s domestic responsibilities, force many to leave practice and thus fail to meet the requirement of continuous practice to be eligible for a position as a District Judge.
In September 2021, the Chief Justice of India, Justice NV Ramana, supported 50 per cent representation for women in the Indian judiciary while discussing the skewed gender ratio in the Indian judiciary. While talking about the same he said:
“It is your right. It is not a matter of charity…Enough of these thousands of years of suppression”
He also promised to take up the matter with the collegium. He also stated that, as a first step, he strongly supports reserving a significant percentage of seats in law schools and universities for women.
India also celebrated the first every International Women Judges day on 10th March this year. Several judges have expressed their support this year for increased female representation in the higher judiciary while speaking at the event organized to commemorate International Women Judges Day.
Justice Hima Kohli stated that
“women judges validate the judicial system, and their inclusion in large numbers is a palpable realisation of the constitutional codes.”
Justice Indira Bannerjee added that
“gender stereotyping norms play a role in preventing women from participating in the judiciary.”
The statement by Justice Bela Trivedi further emphasized the importance of women on the bench. She said that:
“In female form, her attributes are a blindfold; a set of scales, and a sword. As we all know, the blindfold represents impartiality; the set of scales represents quality and the sword represents authority and enforcement of the law.”
 Women on the Bench: Madras HC leads With 13 Women Judges, followed By Delhi & Telangana; 5 HCs Have No Women Representation, Available Here
 Women in the Judiciary: working towards a legal system reflective of society, Available Here
 Men’s clubs that decide for everybody? Only 2.04% of State Bar Council representatives across India are women, Available Here