Advocate Indu Malhotra’s recent recommendation to the Supreme Court has rekindled discourse on the need for greater gender diversity within the judiciary. If appointed, Malhotra will be only the seventh woman Supreme Court judge since its constitution in 1950, and will also be the first woman promoted directly from the bar to the Supreme Court bench. The state of gender representation in the High Courts is similarly worrying: currently, less than 10% of the judges in the High Courts are women. While the higher judiciary has still occasionally come under scrutiny for its lack of gender representativeness, the lower judiciary has escaped a similar fate. One primary reason for this is that data on gender diversity in the lower courts is not easily available in a uniform format across various states or districts, making it time-consuming to collate. To fill this gap, in a new briefing by the Vidhi Centre for Legal Policy, we have attempted to provide a complete state- and district-wise breakdown of the gender representation within the lower judiciary. Our findings reveal that women are grossly under-represented in the lower courts, which represent the first and often the only point of contact for the vast majority of litigants. Nationwide, the average percentage of women judges is around 30%, and in the worst-performing states of Bihar and Jharkhand, the number drops to as low as 11.52% and 13.98%, respectively. Only in three of the smallest states—Goa, Meghalaya and Sikkim, with a collective total of a mere 103 judges—does the percentage of women judges rise above the halfway mark. For all the other states but two, it remains below 40%.
Apart from revealing this imbalance, our findings hint at another worrying trend—of the proportion of women steadily decreasing on moving up the ranks of the lower judiciary. The lower courts in India consist of three tiers or cadres. District judges are at the helm, civil judges (senior division) occupy the intermediate position in seniority, and civil judges (junior division) are at the junior-most level. Each of these three cadres includes various designations as specified in the relevant state’s Judicial Service Rules. Based on our preliminary findings, where we have analysed data for only 10 states, we notice that there is a near-uniform trend of the percentage of women judges decreasing as one goes higher up in the lower judiciary. In other words, there is a greater percentage of women in the civil judge (junior division) cadre than there is in the cadre just above it—i.e. civil judge (senior division)—and this proportion further decreases in the cadre of district judge. In Andhra Pradesh, for instance, the percentage falls by nearly 10% as we move up each cadre; there are nearly 44% women in the cadre of civil judges (junior division), but only 34% in civil judges (senior division), and 24% at the district judge level. In some other states such as Madhya Pradesh and West Bengal, the fall is much steeper—42% to 14% in the former, and 43% to 16% in the latter, from the junior-most to the senior-most cadre. Similar trends are observable in other states that we have gathered data for.
This is particularly troubling since it may potentially support widespread anecdotal reports of bias against women in appointment and promotion procedures. Appointment as a civil judge (senior division) happens exclusively through promotion of judges in the cadre of civil judge (junior division). Appointment of district judges also happens mostly through promotion of civil judges (senior division), though there is a 25% quota for direct recruitment from advocates with a minimum of seven years of experience. Our findings raise questions regarding potential causes behind such a trend, underscoring the need to closely study appointments and promotion processes within the lower judiciary. In fact, these proportions fall even more drastically when we consider the higher judiciary, to under 10% in the High Courts and 4% in the Supreme Court (one out of 25 judges is a woman). Unlike the lower judiciary, persons elevated to the High Court are mostly drawn from the Bar, and appointment to both the High Courts and the Supreme Court happens on the recommendation of the Supreme Court collegium. As has oft been commented on, subjective appointment processes leave open a greater potential for discrimination and bias, and the opaque and subjective deliberations of the collegium seem to be excluding women. For instance, in a 2016 cover story in the Week news magazine, former Delhi High Court Chief Justice AP Shah described how a woman lawyer he had recommended for judgeship was rejected on the grounds that she was ‘rude,’ though it is probable that similar behaviour exhibited by a male lawyer would not have been judged as harshly.
Former Supreme Court Justice Gyan Sudha Misra, too, has spoken out about higher standards being applied to women judges over male judges for elevation. Similar bias has been alleged at the lower judicial level. In 2015, a female judge serving in the Delhi Judicial Service even filed a petition in the Delhi High Court challenging the criteria for promotion which had been arbitrarily altered, and had not been intimated to judicial officers in the cadre. She contended that frequently altering the criteria for promotion had a ‘demoralising effect’ on the members of the judicial service as they could not plan their future in a manner that would ensure their career progression. Such opacity and arbitrariness could be a contributing factor in why the number of women judges seem to fall as we move up the cadres. The lack of women at senior levels within the judiciary means that they are excluded from the positions of leadership and authority. Women are, therefore, unable to play a role in shaping such institutions, and shaping constitutional jurisprudence in the higher judiciary. The lack of women in higher positions also sends a strong negative message to younger women who may have considered joining the judicial services. The potential implications of this finding thus urgently merit increased attention: to address any unfairness in judicial promotion, and maintain incentives for women to join the judiciary.
By: Diksha Sanyal and Nitika Khaitan
(This article is based on a study authored by Arijeet Ghosh, Diksha Sanyal and Nitika Khaitan, accessible at the Vidhi Centre for Legal Policy website.)