This International Day of Women Judges sheds light on the enduring predominance of the judiciary as an exclusive fraternity, still resembling an old boys’ club. The quest for gender equality within the echelons of justice administration, particularly in constitutional courts, appears distant. A stark reality prevails, with only three women judges in the Supreme Court out of a sanctioned strength of 34, and a mere two women serving as chief justices among the 25 high courts in the country.
The late U.S. Supreme Court Justice Ruth Bader Ginsburg once faced the inquiry of how many of the nine judges on the U.S. Supreme Court should be women. Her unequivocal response was “Nine.” Ginsburg underscored the historical prevalence of nine men in the Supreme Court, an aspect never contested until her demise in September 2020.
Evidently, women judges and lawyers grapple with formidable structural impediments such as gender stereotypes, discrimination, harassment, and inadequate institutional and infrastructural backing. According to the United Nations, the inclusion of women judges introduces varied perspectives and experiences, fortifying judicial systems. Women in leadership roles disrupt collusion networks, striking a formidable blow against corruption.
The International Day of Women Judges beckons introspection into institutional and societal barriers hindering gender equality in the administration of justice within constitutional courts. Additionally, it prompts examination of factors thwarting the upward trajectory of women within the judiciary. Given the lamentable presence of women judges in constitutional courts, it becomes evident that the collegium system falls short in advancing diversity.
Moreover, women appointed to the Supreme Court face brief tenures. Justice B.V. Nagarathna, elevated in August 2021, will serve as a Supreme Court judge until October 29, 2027, with her tenure as Chief Justice spanning slightly over a month, a marked contrast to her male counterparts.
Constitutional courts diverge from legislative assemblies or the Parliament, where a modest female presence might suffice to rectify gender imbalances. The Supreme Court, with 34 judges, may foreseeably witness a future where accomplished women legal minds grace the bench in double digits, challenging the current trifecta. Conversely, the high courts paint a grim picture, with only 111 women judges out of a sanctioned strength of 1114, hovering just above 10%.
According to the United Nations, the mere presence of women judges enhances the legitimacy of courts, signaling openness and accessibility to those seeking justice.
In March 2024, Supreme Court judge Justice Hima Kohli asserted during a program organized by the International Arbitration & Mediation Centre that elevating women to leadership positions recognizes the inherent value they bring as decision-makers.
Justice BV Nagarathna echoed this sentiment in January 2024, emphasizing the constitutional imperative and the essential role women play in achieving a robust, transparent, inclusive, effective, and credible judicial process. Speaking at the 28th Justice Sunanda Bhandare Memorial Lecture in the national capital, Justice Nagarathna highlighted that an increased female presence on the bench contributes to a more effective justice delivery system in India.
Chief Justice of India D Y Chandrachud, in November 2023, expressed concern over the scant representation of women in higher judiciary during an event commemorating the 100th year of Bhimrao Ambedkar’s law practice. He acknowledged that rectifying this imbalance couldn’t occur overnight, as the selection of judges depends on the available pool.
The late Sandra Day O’Connor, the first woman on the Supreme Court, debunked the notion that a wise old man and a wise old woman would reach the same conclusion. O’Connor critiqued the theory attributing a sensitive, empathetic, and gentle perspective to female judges. Her passing in December 2023 at the age of 93 marked the end of an era. The notion that female judges decide differently stems from stereotypical beliefs about innate gender-specific decision-making, a broad generalization unsupported by empirical studies.
In the Allahabad High Court, the largest in India with a sanctioned strength of 160 judges, a mere 6 are women as of March 1, 2024. The scenario mirrors in the Bombay High Court, the second largest with 94 judges, where only 10 are women judges. The Delhi High Court, boasting 60 judges, houses only 9 women judges. The Madras High Court, the largest in southern India with 75 judges, accommodates a mere 12 women judges. Across the 25 high courts in the country, women judges make up a paltry 10%.
In a research article titled “Women’s Equal Representation in the Higher Judiciary: A Case for Judicial Diversity in India,” Justice Gita Mittal, a former Chief Justice of the High Court of Jammu & Kashmir, articulated that structural issues with the judicial appointment of women intersect with problems like biased merit evaluation, nepotism, and caste-based discrimination. The article contends that the collegium system falls short in advancing diversity, necessitating more comprehensive reform.
A cadre of law professors from esteemed institutions—NYU’s Stephen Choi, Duke’s Mitu Gulati, Chicago’s Eric Posner, and Mirya Holman—delved into the contentious question of whether judges of one gender surpass those of another. Their conclusion challenged the notion that female judges, drawn from a shallower talent pool, are inferior to male counterparts. In fact, the evidence suggests that female judges are at least as competent, if not superior. Therefore, judicial appointments disrupting court homogeneity mark strides in the right direction. Only through an influx of women onto high court benches can their underrepresentation in the Supreme Court be rectified.