As Justice R Banumathi retires as a judge of the Supreme Court (SC) of India in July 2020, the top court will be reduced to two women judges among the 31 sitting judges. Going by seniority, we may not have a woman Chief Justice of India in the near future as by the time Justice Indu Malhotra retires in March 2021 she will only be 10th in the line of seniority of SC judges, calling for introspection of the position of women in the judiciary.
In April 2018, when Justice Indu Malhotra was appointed to the SC, media celebrated her as the first woman judge to be elevated directly from the bar.
In June 2018, when Justice PT Asha was appointed as a judge of the Madras High Court, the court became the highest and the only High Court to have as many as 12 women judges out of the working strength of 63 judges.
Several newspapers and journals carried articles celebrating this ‘achievement’ of the High Court.
But is this something to celebrate or is it time to introspect the position of women in judiciary?
This is a question that keeps lingering.
The Shocking Numbers
Certain statistics in the apex court and the High Courts of India are really shocking. Out of the 656 sitting judges in 23 High Courts (barring the High Court of Andhra Pradesh), only 73 are women.
This is only 11.12 percent of the number of sitting judges.
It is startling to see that out of the 23 High Courts, five of them don’t have even one woman sitting judge. Out of 2,791 ‘past judges’ in the High Courts (barring Madras), only 102 are women. This accounts to only 3.65 percent of the total number.
The SC has had 169 former judges of whom only six were women. This accounts to only 3.55 percent of the total former judges of the apex court.
It is equally poignant to note that India has never seen a woman Chief Justice. Thirteen high courts share the distinction of not having had a woman Chief Justice (barring present chief justices).
At present, only Jammu & Kashmir High Court is headed by a woman Chief Justice.
The Kerala High Court has had the highest number, with three women chief justices. Out of 592 former Chief Justices of High Courts only 16 were women. This is only 2.7 percent of the total number.
Of Women & Court Practice
These poor numbers may not be directly attributable to the process only of appointment because such appointment knows no gender. But these numbers should be equated with the numbers at various stages of legal career a person crosses before being appointed as a judge. This begins with enrollment in the law school, enrollment with the State Bar Council as an advocate after graduation, entry into and sustenance in court practice and entry into the district judiciary.
Conversation with several senior members of the bar shows that legal education was never a preference for girl children in the past.
Some women members recollect how they were few in numbers during their college days, and that most of them enrolled in law schools only because they had their parents in the legal profession.
To some extent, the ‘family structure’ of the Indian society is also a contributing factor even as several women are either forced to give up their profession ‘to take care of the family’ or are voluntarily making up minds considering the larger community burden they have to carry after their marriage.
Some could not have the advantage of ‘sacrificing’ certain aspects of family life to continue court practice.
This is a direct reflection of gender roles the society has for long given men and women. This also brings to our attention that mere encouragement of enrollment of women in law schools or reservation for women in legal education or judicial appointments is not of much use unless ‘gender roles’ stop pushing women into other avenues for law graduates, including well paid ‘desk jobs’ at the corporate sector as against ‘court practice’.
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It is also equally true that ‘court practice’ as such is not monetarily conducive initially despite the ‘hard labour’ one has to put in. Recently, the Madras High Court made scathing observations about the rising hooliganism in the legal profession due to access to ‘buying’ law degrees from several letter pad law colleges. The court had asked several questions to the BCI which had given permissions to 800 as against the required 175 colleges attributing it to the number of brief-less lawyers. Poor working conditions might also therefore be one of the causes for a bad sex ratio in the judiciary.
Girls Outnumber Boys In CLAT Application Since 2008
However, the sex ratio in the higher judiciary may increase in the future due to certain positive indicators. Firstly, the enrollment of girl students in law courses has been impressive in recent times. Girls have outnumbered boys in terms of applications for Common Law Admission Test (CLAT) from 2008.
This is irrespective of the reservation for women in CLAT. Premier law schools in Tamil Nadu including the School Of Excellence in Law, TNNLU, School of Law – SASTRA have all shown similar trends in the recent years. It is now only a question of the number of female law graduates preferring ‘practice in courts’ over corporate sector and other service exams.
Secondly, the numbers at district judiciary is quite positive with respect to female judges. The statistics collected from 17 districts in Tamil Nadu confirms that almost 35 percent of the district judiciary consists of women judges.
Since one-third of high court judges (by practice) are promoted from judicial service, these numbers from district judiciary is a positive sign. Partly thanks to the SC which in 2002, enabled fresh law graduates to take up judicial service at junior level.
This has enabled young law graduates of both genders to prefer ‘judicial services’ over other civil services and corporate jobs. Handsome salary and allowances recently have also made junior judicial service ‘preferable’.
Similarly, the state should also amend their Higher/Superior Judicial Service recruitment rules so as to enable direct recruitment of young advocates as district judges upon completing seven years of practice.
Though advocates with not less than seven years of law practice are eligible for recruitment as district judge under Article 233 the Constitution of India, several states have recently fixed a much higher ‘minimum age’ for such recruitment.
On an average, an advocate completes seven years of practice at the Bar at the age of 29.
Removing the minimum age for recruitment as district judge can help young female advocates from opting out of practice in favour of other services or corporate jobs. Governments should also rationalise salary and allowances of lower judiciary.
But all is not well even while making comparison of the present statistics with those collected as on the first week of December, 2017. For instance, 11.47 percent of the total number of sitting judges of the high courts were women as against 11.12 percent now. Almost all other statistics also either remains unchanged or changed to worse.
Judicial and legislative wings of the state should join hands to study the sex ratio in court practice and Judiciary continuously and take effective steps to improve the same on a ‘time to time’ basis.
This will ensure that the sex ratio in the higher judiciary is not artificially improved only by making appointments in those lines. Instead conducive environment and adequate opportunities are created for women to flourish as advocates and judges.
Above all, the society has to give up its ‘strict gender roles’ and stereotyping in order to enable more women to take up or to continue court practice even after marriage. Men have to be taught to share the ‘sacrifices and burden of the family’ with women instead of using them as a shield to prevent young married women advocates from continuing their court practice.
Therefore, now is the time we should truncate celebrations about appointments of women now and then and instead take constructive measures to provide women a level playing field in judiciary.
(The author Nirmalkumar Mohandoss is an advocate at the Madras High Court. With inputs from T Arivoli, S Mahemaa and Nisha Tyagi. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
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