India, world’s largest democracy. In the past seven and a half decades since independence, India has had women presidents, women speakers, a woman prime minister, although the judiciary stands alone in this criterion of being headed by a woman from other branches of power. Since its inception from 1950,there were only eleven women who served on the bench of the apex court of the land. Currently there are no female chief justices in any of the twenty five high courts, and there are barely three female justices in the bench of supreme court out of thirty four. When the legal profession becomes more diverse with gender participation, the higher judicial system in the country is not keeping up with the pace. Eminent jurist Upendra Baxi describes this scenario as “The sculpting of a new deal for Indian women is an uphill task and occurs at a slow and mendaring pace”.
While looking into the history of women in the legal profession and appointments to the bench we will get to know how far women have traveled from there to now. The present challenges faced by the judiciary due to the lack of enough representation and how a diverse higher judiciary would draw more legitimacy to the Indian judicial system are areas I am intending to look into through this article.
Historicity: Woman in Legal Profession
It is no secret that women have been discriminated against throughout history. Across cultures, gender discrimination has impeded women’s empowerment and economic participation. Women historically could not enroll or practice law because society deemed that women are unfit for the legal profession. In India, Cornelia Sorabjee became the first woman to graduate in law from Bombay University and later at Oxford University in 1892 where she studied for a Bachelor of Civil Law (BCL). However, she had to wait until 1920 to get her degree from Oxford. On 21st August, 1921, Allahabad High Court allowed the application of Cornelia Sorabji to enroll as “Vakil”. This enrolment of Cornelia Sorabji was done by a decision of the English Committee of the Court consisting of the Chief Justice and the Judges present in Allahabad under rule 15 of Chapter XV of the Allahabad High Court Rules.
In 1916, Regina Guha continued the battle for women’s participation in law when she applied for enrollment as a pleader under Section 6 of the 1879 Legal Practitioners Act, at the Calcutta High Court. Guha argued that Section 6 includes both sexes and does not exclude women. Since her application was first of its kind, a special bench was composed to hear her case. A bench of five judges were present–Justice L. Sanderson, Justice A. Mookerjee, Justice W. Chitty, Justice Teunon and Justice Chowdhury. The bench unanimously decided against Guha’s petition, observing that the Act’s intention was to make legislation for practitioners who were well-known and well-established -meaning “men”. The bench also relied on Bebb v. Law Society, a British case ruling that women were not “persons” under the Solicitor’s Act of 1843 and could not enroll as solicitors. Justice Asutosh Mookerjee opined that “no escape from the position that the Legislature in this country never contemplated the admission of women to the rank of Legal Practitioners”.
After five years, Sudhanshubala Hazra raised the same question at the Patna High Court in the “Second Person’s” case. A full bench of the Patna High Court consisting of Chief Justice Dawson Miller, Justice Jwala Prasad and Justice B.K. Mullick sat together to deliberate on her application.The Patna high court judges delivered three separate concurrent opinions on November 28, 1921 upholding the position in Regina Guha case that in spite of the provisions of the General Clauses Act of 1868 and 1897, woman, although fully qualified, was not entitled to a certificate under the Legal Practitioners’ Act to act as a pleader because of her sex. She was not a ‘person’.
Determined to change the status quo, Hazra, with the support of her father, an advocate, Madhusudan Das and her sister, Sailabala Das, wrote an application to the Privy Council. Through further lobbying and collaboration with Hari Singh Gour, a lawyer, social reformer, and Central Legislative Assembly member, Hazra helped pass the 1923 Legal Practitioners (Women) Act, which overruled the Regina Guha and Sudhanshubala Hazra judgments and permitted women to enter legal profession. To prevent further incidents of discrimination, the Indian Bar Councils Act of 1926 reinforced the Legal Practitioners (Women) Act and prohibited the disqualification of women as advocates based on their gender.
This historical account illustrateshow the women who intended to get into the legal profession were impeded by the narrow minded judicial interpretation of legislative statutes. These rules operated as blatant structural barriers, meaning rules and norms of entry that plainly discriminated based solely on gender.
Appointments of Woman to Judiciary
The above-described, female legal trailblazers paved the way for Anna Chandy in 1937 to become the first Kerala woman appointed as the First Grade Munsiff. Chandy later became the first woman High Court judge, in 1959. Ever since the establishment of the Supreme Court of India to 1989, all the 93 judges who have served the apex Court have all been men. Legal education has been out of the arena for women for many decades, yet few of them who made the difference by seeking legal education did not have an easy walk on. Looking at the trend in Indian Judiciary, it took almost four decades after the establishment of the Supreme Court of India for a woman to become a judge in the Supreme Court. Till date, there have been only eleven female judges in the Supreme Court of India. It was only in 2018 that a female senior lawyer was directly appointed as a Supreme Court Judge. Justice Indu Malhotra’s direct move from bar to bench is seen as a major event by many in the legal community, as it has cleared the decks for more women advocates to get directly nominated as judges of the Supreme Court. All other judges of the court were elevated from the high court, the first being M. Fathima Beevi. in 1989. Her appointment signifies the position of women at bar and the acceptance of the talent of women. Within these seven decades since independence, India has elected women Presidents, Speaker of Lok Sabha and a Prime Minister, whereas even now, the country is yet to have a woman Chief Justice .
In the year 2000, three judges were appointed to the Supreme Court -Y.K. Sabharwal, Ruma Pal and Doraiswamy Raju. Ruma Pal would have been on the same level of seniority in the year 2005 when R.C. Lahoti J. was to retire, however she was sworn in after Sabharwal J. which, is argued to have, lost her seniority. The usual tie-breakers of seniority includes that if both were sworn in on the same day, the one with more years of service in high court would win the seniority stakes, which was also the case with YK Sabharwal in comparison to Ruma Pal’s tenure in High Court service. Three female judges who were elevated to the Supreme Court in 2021, Justice Hima Kohli, Justice B. V. Nagarathna, and Justice Bela M. Trivedi. It was the first time that multiple female justices have been appointed to the top court, and there is a chance that India could soon have its first female chief justice. According to seniority, Justice Nagarathna will take over as India’s first female Chief Justice in September 2027. But, Justice Vikram Nath, who was promoted to the Supreme Court, is also scheduled to take over as Chief Justice of India in February 2027. Justice Nagarathna would succeed him and serve as head of the court for more than a month. Multiple female judges being nominated for judicial positions in one instance does not necessarily mean that gender is now taken into account when choosing judges. Justice Indu Malhotra during her farewell ceremony quoted that “Women should not be taken as a mere token.”The move to appoint multiple women judges must not be over-exaggerated as it is paying mere tokenism to what has been deserved by women.
Challenges Due to the Lack of Representation
The recent landmark judgments whether it be of Triple Talaq or Right to privacy, not a single woman judge was a part of Constitutional Bench, When the judgment of Triple Talaq was decided by a constitutional bench, in a judgment where judges discussed the rights of Muslim women – was it not essential for a constitutional bench to have a woman judge?
The judgments given by the Supreme court on important cases like “Sabarimala”(Indian Young Lawyers Assn. (Sabarimala Temple-5J.) v. State of Kerala, (2019) 11 SCC 1) which was based upon the law banning women from entering the temple because they are considered “impure” due to menstruation, Decriminalization of homosexulity( Navtej Singh Johar v. Union of India, (2018) 10 SCC 1), Adultery, (Joseph Shine v. Union of India, (2019) 3 SCC 39). All these judgments consisted of only a single woman judge, Justice Indu Malhotra.
Studies have indicated that around 27.6% of judges in the lower judiciary are female, which is higher than the average in the constitutional courts. The problem of poor representation in higher judiciary lies somewhere else which is yet to be uncovered. Judicial officers are not often the preferred choices for constitutional court judgeship. Rather, practicing lawyers are more preferred for higher judiciary. It can be argued that women can participate in the selection process through the bar as well, however, spending a significant amount of time in courts can easily point out the gender biases that prevails in practicing law. Practicing law has always been identified as a man’s job, however, when women started to get into this profession, they had to identify themselves with the set male standards that characterize a practicing advocate. Therefore, there has never been any initiative in understanding what women can contribute to the judiciary because they have so far been contesting in a professional set up which is not gender neutral.
There has to be some reasons as to why women are being represented at a dwindling rate. A lot of senior advocates and judges in interviews have said that being a woman, they were never taken seriously by their counterparts. Gyan Sudha Misra J. in an interview said, “I guess lack of faith and belief in the abilities of women is still rooted in society and more so in the male psyche and we prefer to have their token presence, especially in the higher judiciary, more for the sake of symbol rather than their equal participation”. Former High Court of Delhi Chief Justice AP Shah described how a woman lawyer he had recommended for judgeship was rejected on the grounds that she was ‘rude’, though he believes similar behavior exhibited by a male lawyer would not have been judged as harshly. Senior advocate Indira Jaising observes, “There is a live and kicking patriarchy that prevents women from breaking the glass ceiling. The entrenched ‘old boys’ club mentality makes it harder for women to lobby for judicial posts”. Addressing the issue of gender diversity several scholars have pointed out that presence of women in judiciary symbolizes participatory democracy, diversity of opinions gives an inclusive characteristic to the judiciary and signals equality of opportunity for all.
The higher judiciary not only is the final dispute resolution body but is also into determining policies and setting up good governance mechanisms. Therefore, in larger interests, it should reflect the diversity that the country projects. Diversity in the judiciary will highlight the equal representative character of the justice delivery system as well as it will lead to creative solutions to problems by utilizing the diverse human resources and experiences.
In Vishaka v. State of Rajasthan( (1997) 6 SCC 241), a writ petition was heard by a division bench made up of Chief Justice J.S. Verma, Sujatha V. Manohar, and JJ. B.N. Kirpal. A savage gang rape of a social worker in Rajasthan served as the immediate impetus for this petition, which was brought up in a class action with the intention of fighting sexual harassment of women at the workplace through judicial process. The judgment laid down guidelines to prevent sexual harassment at workplace and this would be enforceable in law until suitable legislation gets enacted., Supreme Court through judgment observed that sexual harassment in the workplace is a violation of women’s human rights. However, the significant factor here is the presence of a woman judge. Her presence not only ensured the representative character but also made the bench gender sensitive and more participatory in nature. It can be well argued in this case that the presence of a female judge in deciding this case has contributed in giving a holistic understanding of the problem and finding a realistic solution to it.
Ideally the representation of women must be equal to men in judiciary, since this would reflect their proportion both in the general population and in the number of legal professionals. It would give voice to a section of society which for a very long time has remained under subjugation. A diverse bench signifies the basic component of judiciary that is of being fair, equal and impartial and that leads to another point, which induces public confidence in judiciary. So an inclusive and diverse judiciary will make the judiciary more powerful, upright and legitimate,
The Indian Constitution has not been silent on the point of maintaining diversity, however, what has been observed is that only certain aspects of diversity like minority religion, backward caste, representation of high courts have been taken into consideration while preserving the diversity factor in appointment of judges in the higher judiciary. The idea of having an inclusive judiciary is inbuilt in the Constitution itself. The need of the moment is to reflect this ideology in all the constitutional offices.
Author: Anirudh K P
Juris Centre 