Why do we have so few women judges? How can we have more?
Chandrani Banerjee | March 8, 2018
It was 42 years after independence that the supreme court got its first woman judge in justice M Fathima Beevi. And in January this year, when senior advocate Indu Malhotra was elevated from the bar to the bench, she became only the seventh woman judge of the court. The dearth of woman judges in the apex court reflects the dearth of women judges in high courts and lower courts, and, in general, the dearth of women in the legal profession.
It is not as if women are not studying law at all. In the last four years, the number of women enrolling in law courses has seen a 61 percent rise, thanks to a growing demand for those who know the law, especially in the corporate sector. But many women are bailing out of the bigger law firms and corporate offices, unable to balance the demands of work and home. In legal practice too, women are disproportionately low. This gets reflected in the number of women judges.
In August 2017, minister of state for law and justice PP Chaudhary told the Lok Sabha that there are only 10 percent women judges in the high courts. Of the 652 judges in 24 high courts, only 69 were women. The supreme court had only one woman judge among 24 – justice R Bhanumati, elevated to the apex court three years before. According to the data, the Bombay high court had the most women judges (12 out of 62), while Delhi high court came next (11 out of 39). Both these courts have women chief justices: the acting chief justice in the Bombay high court is justice Vijaya Kamlesh Tahilramani, and the acting chief justice in Delhi high court is justice Gita Mittal. The Allahabad high court has the most judges (85), but only seven are women. Eight high courts do not have woman judges.
Swagata Raha, a researcher who conducted a study for Rainmaker, a consultancy, says judges are usually drawn from the pool of practising advocates, and since the proportion of women advocates is low, few women become judges.
“Litigation is very demanding and time consuming, and there’s little structural support for women advocates,” she says. “Women working in law firms do get maternity benefits, but those working independently as advocates or under seniors often don’t. The motherhood ceiling is what most women advocates have to contend with. In legal practice, visibility in the court corridors is important and women have had to struggle with that. One lawyer told me how she’d leave her child in the car with a caregiver while she made an appearance in court.” She says it might be a good idea to have creches in courthouses.
Says Mahalaxmi Pavani, a senior advocate and president of the Supreme Court Lawyers Association, “I’d like to believe that there is no bias against women, but it clearly appears that there is. The number of women designated senior advocates is few, and there are few recommendations to raise them to the bench. If women are to get access to justice, we need a diverse judicial system.”
The association had in March 2015 moved the supreme court for adequate representation of meritorious women in the appointment of judges to high courts and the supreme court. Reacting, justice JS Khehar had said, “We’d first like to know what the ratio of female advocates to male advocates is. That is very important. The ratio of female judges to male judges must be in the same ratio.” Pavani had responded, “Please do not compare the number of men and women at bar and juxtapose it with the ratio of male and female judges. Women were only allowed to practise in court in 1922. Women face a lot of problems while practising in court. Despite that they practise.”
The petition had also said: “The higher judiciary should have adequate representation of women judges after giving due weightage to their merit. In the largest democracy, where the female-to-male ratio is a concern, women still need to be protected from foeticide, assault, domestic violence, trafficking, right to property. Thus, larger representation of women will further advance the cause of justice.”
Senior advocate Indira Jaising too had filed a petition in the supreme court, seeking judicial scrutiny of the process by which practising advocates are awarded seniority, that is, designated senior advocates. “There’s no transparency in the procedure, no criteria laid down for determining excellence in advocacy and no rational nexus between the persons designate and their excellence or no rational reason for rejection of persons of eminence and ability,” the petition said. Since judges are drawn from among senior advocates, this has a bearing on women becoming judges: fewer women advocates, so fewer senior advocates who are women, so fewer women judges.
NR Madhava Menon, founding director of the National Law School of India and the National Judicial Academy, Bhopal, says, “We need to change the thought process. The participation of women should be ensured by everyone in their professional and personal sphere to improve the picture in the real sense.”
The constitution has no provision for caste-, class- or sex-based reservation for judges’ posts. Even so, the government told parliament that it has requested the chief justices of high courts to give due consideration to representation of women on the bench while sending proposals for the appointment of judges.
Legal experts are all agreed on the poor representation of women on the bench and that it is a serious problem. Says justice Hosbet Suresh, former judge of the Bombay high court, “I’d say somewhere the chain is breaking if women are dropping out of the profession. We should look at it with much more seriousness. We should work towards a mechanism where we could provide them the desired support and help them to continue without any pressure.”
It’s tough for women to progress through practice as advocates: Justice Manju Goel, former judge, Delhi high court
Why is there a shortage of women judges?
There are two ways to become a judge. One can qualify for the judicial services – that’s the direct route. The other is to progress through practice as an advocate. That involves a big struggle. An advocate has to really make a mark and achieve the tag of senior advocate. (Senior advocates form a pool from which a few are elevated to the bench.) It requires time and the trust of clients to achieve the senior advocate tag. The difficulties of balancing work and home may be one reason there are few women in the legal profession, but there are many more reasons.
Tell us some of the other reasons.
Law is a profession, not a ten-to-five job. It calls for nearly 24x7 engagement. Winning the trust of clients is important, that is, the client should prefer you over others, and that takes much commitment. A supportive family is a big help.
How can we have more woman judges?
It will take time. We have to alter our thought processes. We need supportive families who want women to lead. From childhood on, it must be inculcated among boys that it is as normal for women to take the lead in the workplace or in a profession as it is for them.
Are there biases in society about women legal professionals?
Yes. Clients largely trust women professionals in cases of family disputes, child custody and so on. Criminal matters usually go to men. But such differences apply to most other professions too: male cardiac surgeons get more patients than women cardiac surgeons. My daughter is a doctor, and I’ve seen this kind of a mental block in operation.
Do advocates who are children of leading law professionals have an advantage?
Of course. From the day you are born, you grow with someone who knows the profession. It becomes a way of life. And when someone puts that kind of learning in practice, it creates magic. So, yes, they do have an advantage.
So, is the petition of Indira Jaising seeking transparency in the process of promotion as senior advocates justified? It implies that advocates from renowned families or with connections in the legal profession get seniority quickly.
I beg to differ. Performance has to be consistent. If a person is winning cases that he or she is handling, no one can sideline him. Being born in a family of lawyers is not someone’s fault. There are instances of famous lawyers whose children did not achieve much.
Is it difficult for advocates from non-legal families to make it?
The competition is tougher. But I believe that if there is talent and some support, any individual can cut through.
How can the environment be made more friendly for women in the legal profession?
It’s a tough profession. It demands a lot before it gives anything back to a professional. So people (family members, etc.) around a woman legal professional should be patient. There should be infrastructural support in the court premises for women lawyers and judges.
What are the hurdles that keep women lawyers from growing in their careers?
Time and commitment. Most of them have commitment, but lack of support works against them. The judicial service gives you enough time to balance work and home, but private practice is very demanding.
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