Why women must be visible at all levels of the Indian judiciary

It is an exciting time to be a woman at the Indian Bar. With the recent appointment of three women judges to the Supreme Court (SC) — justices Hima Kohli, BV Nagarathna and Bela Trivedi — many young women feel like their aspirations finally have a name and face. Their aspirations are no longer tabula rasa, a blank slate. They have a goal to live up to, one that isn’t unheard of, unreasonable or unthinkable. I say this to highlight the importance of having a woman hold the highest position in the Indian judiciary for future generations. We may be a country with affirmative action, but one marvels at how long it has taken us to reach here. By the time justice Nagarathna is set to assume the position of Chief Justice of India in 2027, it will have taken 81 years of Independence for the country to reach that landmark moment.

While it is true that women are making inroads in all spheres of life by breaking the glass ceiling, for some reason, this largely gender-positive scenario is still not adequately depicted in our judiciary. We know that the 73rd Amendment to the Constitution in 1992 handed over the reins of power to people at the panchayat level with 33% reservation for women in the grassroots governance system. The 73rd Amendment created the federal space for women to participate and occupy places in local decision-making processes and effect change from the ground up. Similarly, it is crucial that women visibly occupy places in all the echelons of the judicial leadership. One may well wonder if the need to drive this point home stems from the fact that women’s representation in the judiciary has a lot to do with optics. Indeed, it is. The judiciary must be seen to represent the society it seeks to protect. It is often said that justice must not only be done but also be seen to be done; similarly, representation must be visible and palpable in all levels of public life. Of the 256 SC judges appointed in the past 71 years, only 11 (or 4.2%) are women, according to data published in The Hindu. In high courts, this number stands at 11.7%. This must change, and quickly.

Changing the demographics of the judiciary can help modernise it, which can contribute greatly to how it is viewed and regarded. The people who constitute the judiciary must necessarily resemble the fabric of the society; only then can the judiciary be perceived as approachable. Article 7 of the 1979 Convention on the Elimination of All Forms of Discrimination Against Women — the watershed agreement widely acknowledged as an international bill of rights for women — mentioned that States parties must “take all appropriate measures to eliminate discrimination against women in the political and public life of the country”, and for this they must ensure women have adequate access “to participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government”. It is crucial to underline that the “political and public life” of a country has a fairly broad periphery. It includes within its ambit all three tiers of governmental authority — the legislative, judicial, and executive.

The discussion surrounding women and the judiciary often pivots on the advantages and disadvantages of reservations for women. But by restricting our discussions to this singular point, we are committing a major oversight because every woman in a leadership position causes a butterfly effect, by being on equal terms with their male counterparts and doing so visibly. Without having a sufficient number of women in the judicial system, we, as a nation and as a society, undervalue their full participation in this sphere. The importance of access cannot be undermined. Merit, if at all there is any correlation between representation and merit (and many studies show there is none), can be considered later. First, a woman must have access to equal opportunities. And what do I mean by access? A seat at the decision-making table. Only then will she be able to show her merit on equal grounds. Sadly, bias often occupies that seat and reserves it on gendered grounds.