By Aarushi Nandi

Abstract

The gender disparity in India is, unfortunately, rising as opposed to decreasing with the times. India ranks 135 out of 145 countries, behind neighbours Bangladesh and Pakistan. With the number of cases of violence rising against women and the news flashing stories of accused in rape cases going unpunished by promising to marry the victim, justice seems to be slipping away from the hands of women. Persistent sexist bias relays in our society, and the solution to this is representation. At the heart of society lies our judiciary system which has had, since its inception in 1950, only 11 women judges at the apex court. In the fight for equality, the fight for representation is imperative. Representation in decision-making centres promises to be a catalyst for institutional change in society. The staggeringly low number of women in the judiciary needs to be addressed and changed, and it needs to be changed now. 

“All women bench to hear matters in the Supreme Court today.”

“Justice Nagarathna is set to become the first woman Chief Justice in 2027.”

These are some clips of news which have been making headlines in India recently, being celebrated and held as a beacon of light for a change that was long awaited.

Representation and diversity in courts have always been tricky questions for the Indian judiciary. Often referred to as an “old boys’ club”, the professional pursuit of law has always been a journey of upper-class, upper-caste men. Unquestioned and unchallenged, the patriarchy seeped into the establishment and became a way of life, with the first female high court judge being appointed only in 1959 and the first female supreme court judge in 1989. The slow-paced development and progress of the Indian judiciary have often been hailed as ‘historical’, ‘path-breaking’, and ‘momentous’ in this journey of breaking glass ceilings of gender norms. Additionally, in recent times, with events such as the ones highlighted above, a celebration has loomed over the nation, hailing that, Representation is there. Empowerment is there. Women are there.

However, are women truly there? Are women truly being respectfully represented? Is it truly path-breaking? And is it truly worth celebrating?

In 2021, four women were appointed as judges to the Supreme Court. The highest number of females to ever be appointed in the Supreme Court. However, this was out of a total of 33 judges. Thereby making the number of male judges 29 as opposed to the four women.

Since its inception in 1950, the Supreme Court has only seen 11 women as judges.

It was only the third time that an all-women bench was hearing matters in the Supreme Court in the 76 years of independence.

There has been no woman Chief Justice of India.

As of 2022, only 83 of the 680 judges in the high courts are women. Additionally, more than half of India’s High Courts have not had a woman Chief justice.

Further, only 30 per cent of women made up the composition of the large body of subordinate courts in 2022.

These staggering statistics reflect the abysmal state of the Indian judiciary, which lacks diversity and inclusion in its representation of the Indian population. This state is not something which requires celebration but instead requires introspection. The most important decision-making institution lacks diversification in its representation, forming a major obstacle in the path to bringing institutional changes in society. Representation is one of the most effective ways to bring about justice, to challenge the historic, and to some extent, the current power dynamics of the world. It gives a platform where the voices of the historically unheard are recognised and given importance to. The maxim that ‘Justice must not only be done but must also be seen to be done’ is equally true of the institution of law. Representation matters, but where you are represented and how you are represented also matters. Equal representation in the institution of law stands as an apt example or ideal model that will be a catalyst for change in society. The solution to the emancipation and amelioration of women’s condition lies in the diversification of the judicial structure. The presence of women enhances the quality of the judgments passed because they bring before the considerations that might not have been taken into account in their absence. It will allow the law to be interpreted through the lens of a woman as opposed to the decade-long practice of viewing it from a male gaze. Thereby, enlarging the scope for a more equal discussion and even though not completely eliminating the possibility, reducing the chances of a sexist bias from prevailing in the judgements.

However, another problem that persists is that the representation that prevails is often merely a “symbolic gesture” and not reflective of an actively changing pattern. It has been noticed that women judges tend to have shorter tenure than their male counterparts because of the delay in their appointment. According to The Hindu, the average tenure for a judge in the apex court is a little over five years but the longest tenure a woman judge has served is four years (Sujata Manohar). People have also failed to notice amidst the celebration of the news of India’s first female Chief Justice in 2027 that Justice B.V Nagarathna will only be sworn into her position one month short of her retirement. Thereby, making her the Chief Justice for only a month. This celebrated so-called ‘historic’ appointment can in some ways be called a farce in the face of increasing demands for equal representation. As commented by Justice N.V Ramana, we should not reduce the appointment of women judges to a mere “symbolic gesture.”

Another integral point that must be brought into focus in the discussion of diversification, is intersectionality. Intersectionality in the Indian feminist movement is often neglected and especially left unsaid in matters relating to representation in the law. Women’s rights and representation is focused on mostly upper-caste, and upper-class women. Talking about and advocating for intersectional representation in the legal field is extremely vital because the discrimination they experience is of two folds, firstly, gender and secondly, caste. Multiple cases like the Mathura Rape case have highlighted the derogatory and insensitive manner in which cases concerning lower caste women are dealt with. Representation of women from such backgrounds will enhance the ‘justice-giving’ ability of the courts and will also allow for such women to have a voice in  decisions, thereby, increasing the chances of more inclusive policies.

As India shockingly keeps falling down the ladder in the Gender Gap Index (Indian ranked 135 out of 146 countries), the only or the most effective way in addressing this urgent problem would be to improve the representation of women in the highest level of decision-making in the country. Giving women a platform where their voices will not only be heard but will be translated into meaningful actions will have a longer lasting and larger impact on, what seems, now bleak, perhaps will become a glowing, more equal future.

Here, I would like to quote the infamous Ruth Bader Ginsberg – “I’m sometimes asked when will there be enough [women on the Supreme Court]? And I say when there are nine, people are shocked. But there’d been nine men, and nobody’s ever raised a question about that.”Therefore, instead of celebrating for achieving four women judges in the supreme court, our thoughts should be focused on advocating for more. We surely have gone from zero to four, but this, is not enough.

About the Author

Aarushi Nandi is a student of the B.A. – L.L.B. 2021 – 2026 batch of Jindal Global Law School. She is a passionate advocate for women’s rights, and loves all things equal, inclusive and diverse.