India prides itself on its diversity, but its judiciary cannot. Since its inception in the 1950, the Supreme Court of India has seen a total of six women judges, of which the first female judge, Fathima Beevi, was appointed only in 1989. The 24 High Courts of the country have had a similarly dismal record where women judges constitute just a little over 10% of those appointed.
The question of judicial diversity has been debated across the globe. Although a contentious issue, where arguments exist both in favour of and against the constitution of a bench that reflects social diversity, it is generally agreed that, in the very least, a judiciary, which reflects the diversity of the society in which it exists, enjoys greater public confidence and hence greater legitimacy.
In the Indian context, such public discourse on judicial diversity faces two critical challenges. First, issues of pendency, vacancy and delay have largely dominated the discussion of judicial reforms in India. Second, despite the lower judiciary being the first point of contact for litigants, it receives a disproportionately low amount of attention when compared with the higher judiciary.
In a recent study by the Vidhi Centre for Legal Policy called ‘Tilting the scale: Gender imbalance in the lower judiciary’, we have attempted to provide fresh perspective to the discourse on judicial reforms by highlighting the lack of gender representation within the lower judiciary. As of 2017, the number of women judges can be pegged at around 28% of the total strength. This corroborates figures quoted by the government in response to parliamentary questions regarding gender proportion in the lower judiciary. Furthermore, we also provide both state and district-wise data on the number of women judges, which might prove to be important for policy-makers and researchers in diagnosing the issue.
States such as Bihar (11.52%), Jharkhand (13.98%), Gujarat (15.11%), Jammu and Kashmir (18.62%), and Uttar Pradesh (21.4%) are the worst performing states. On the other hand, Meghalaya (73.8%), Goa (65.9%) and Sikkim (64.7%) fall on the other end of the spectrum.
We have also observed in our report that some states have instituted reservation as a measure to remedy the gender imbalance within the lower judiciary. Although the efficacy of such a policy remains a moot point, it can be understood that States are still relying on such measures. For instance, Bihar, which has the worst gender proportion in the lower judiciary most recently has brought in 35% reservation for women in 2016.
Additionally, our data set has also helped us identify the decrease in the percentage of women within the lower judiciary itself as we move up its tiers. Based on the State Judicial Services Rules, the lower judiciary roughly comprises of three tiers, namely: civil judge (Jr. division), civil judge (Sr. division), and district judge in ascending hierarchy.
While we see that at the lowest entry level, i.e. civil judge (Jr. division), the proportion of women is fairly good in most of the states (lies between 40%-50%). As we move upwards through these tiers, there seems to be a decrease in their proportion for the selected states we have done this analysis for so far. The causes behind this needs further probing and in-depth research.
At a more generic level, based on the 2011 census data, we also observe a moderate correlation between the representation of women in the judiciary and sex-ratio. Although there is an obvious link between the two, it merits attention since it plays a significant role and has a considerable impact on the issues of gender representation in the public sphere.
This has been recognised by the recent Economic Survey carried out by the government, which has reiterated equal gender participation in the work-force as a long-standing challenge that needs to be remedied collectively by all the responsible stakeholders. The Survey highlighted the fact that women’s participation in the workforce to the level of men has the potential to boost the Indian economy up to 27%. It is time that India recognises equal gender representation as an issue and take effective remedial measures, including in the Indian judiciary.
Several senior and respected women in the legal profession have stated that the profession still remains ‘an old-boys club’ and it has been harder for women to break the ‘glass-ceiling’. Our research intends to provide the much required impetus to start a conversation in this area.
Arijeet Ghosh is a Research Fellow with the Judicial Reforms Initiative at Vidhi Centre for Legal Policy, Delhi. The author acknowledges inputs made by Diksha Sanyal and Nitika Khaitan for this piece.