Judiciary needs more women but reservations are not the right way to get there

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September 29, 2021 5:15 AM

Women judges make up just 12% of the pool of sitting judges in the Supreme Court and High Courts (81 out of 677). Lower courts have a better showing, at 27% a per a Vidhi Legal report, but this is nowhere near what would be considered ideal.

Lower courts have a better showing, at 27% a per a Vidhi Legal report, but this is nowhere near what would be considered ideal.Lower courts have a better showing, at 27% a per a Vidhi Legal report, but this is nowhere near what would be considered ideal.

CJI NV Ramana believes 50% reservation in the judiciary at all levels and in seats in law colleges should be a matter of right for Indian women. To be sure, women judges make up just 12% of the pool of sitting judges in the Supreme Court and High Courts (81 out of 677). Lower courts have a better showing, at 27% a per a Vidhi Legal report, but this is nowhere near what would be considered ideal.

Indeed, the Supreme Court Women Lawyers Association (SCWLA) had filed an application before the SC, seeking its intervention to ensure equal representation of women in the judiciary; the application cited Articles 14 (equality before the law) and 15(3) (empowering the state to make special provisions for women and children), and advocated framing the Memorandum of Procedure to lay down a concrete pathway to promote women’s representation in the judiciary. However, reservation hardly is the answer to the problem at hand.

India suffers from a chronic deficiency of judges, let alone women judges. On September 1, high courts were short of judges by 42% of the sanctioned strength. The problem is just acute in the lower judiciary—19,343 working strength against 24,490 sanctioned strength. Women’s representation, thus, seems to be a subset of this larger problem. Besides, reservation for women in the judiciary could have its implications for merit.

This is not to suggest that women candidates will be less meritorious, but if there isn’t a wide enough pool, mandating any kind of quota for any group would mean that the courts would struggle to meet this, and will then have to either lower the bar to crowd in more hopefuls, or divert the remaining vacancies to the unreserved groups (in this instance, male judges) thereby undermining the quota. Given how the higher judiciary, in various pronouncements, has upheld merit or worthiness as the primary criterion for selection as a member of the judiciary, it is hard to see the judiciary lowering the bar to meet any reservation proposition.

That said, women joining the judiciary needs to be encouraged. Whether it is a male judge in the Madhya Pradesh High Court making bail conditional on the pepetrator getting a rakhi tied by the plaintiff in a sexual assault case or a Bombay HC woman judge’s deeply problematic interpretation of sexual assault, there are instances galore of lack of gender sensitivity in cases involving women.

While India lags the OECD on representation of women in the judiciary, the OECD’s showing itself shows this is a tough challenge—women judges accounted for 33% of the higher judiciary there and 45% of the lower judiciary. Why India has such few women judges isn’t quite clear; former CJI SA Bobde had said earlier this year that many HC chief justices had told him that eligible women lawyers often turned down judgeship because of domestic responsibilities.

Whether this is merely anecdotal or widely representative, India needs to facilitate women in entering the judiciary—and this will need everything, from functional toilets for women in courts (Vidhi in 2019 found 15%of district courts surveyed didn’t have toilets for women, and only 40% were functional among those that had) to support in terms of childcare.

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