Indian judiciary must be proactive to ensure women’s participation in legal process; diversity in decision-making reaps better results

A day before the historical judgment decriminalising unnatural sex between two consenting adults, a landmark event went unnoticed in the Supreme Court. An all-women bench sat to adjudicate matters in the country’s apex court. Justice R Banumathi and Justice Indira Banerjee sat in Court Room 12 to decide on fresh admission matters on 5 and 6 September.

A similar such rare event took place in 2013, though accidently. A division bench comprising Justice Gyan Sudha Mishra and Justice Ranjana Prasad Desai was constituted because of the absence of the regular sitting judge, Justice Aftab Alam.

This event, while marking an important development in the history of gender parity in the legal system, begs the question of why women are not being elevated to the position of a judge in the first place.

There are multiple possible answers to this question. The quest for equality for a woman in India starts from the very basic fact that education is not provided to many. However, even for well-educated and competent women, there remain intangible barriers.

According to a government report, in the higher echelon of the judiciary — the Supreme Court and high courts — only 12 percent of the judges are women. There are several high courts in India that do not have any serving women at all.

One can argue that the best legal minds in the country who study at national law universities usually take up corporate jobs, which is why the women most likely to succeed in the legal profession end up at such companies. But the problem is much bigger than that — a woman’s elevation through the ranks is restricted by various factors. From the incentives that are provided to a judge to the participation of women in the steps essential to become a judge, there are many reasons that deter a woman from entering the legal field.

In sociological studies, this phenomenon is known as the glass ceiling effect. Glass ceiling is defined as the unseen, yet unbreachable, barrier that keeps women from rising to the higher rungs of the career ladder, regardless of their qualifications or achievements. This is because of social constraints, especially in a country like India, where women are thought of as being subservient to men. It is due to the psychological barrier in the minds of people that they do not intentionally promote women to higher designations even when they are as good, or better, than their male counterparts.

However, this is being positively tackled with reservations for women in the lower judiciary. The step will lend a helping hand to the deserving women to fight the social injustice, especially in India’s remote districts. The reservation ranges from 30 percent to 35 percent in states, such as Uttarakhand, Assam, Tamil Nadu, Andhra Pradesh, Telangana, Rajasthan, Karnataka and Odisha, in cases where the recruitment is done through direct appointments.

Another way to tackle the same could be changing the way judges are selected. A more transparent mode of selection would ensure that not just female candidates, but all deserving candidates with no discrimination on the grounds of caste, creed, colour or sex, are able to find a place in the judiciary. But this is a very contentious subject in itself, as the best way to select judges has not yet been found, and the judiciary struck down the proposed National Judicial Appointments Commission, which would have brought in government intervention in the process.

Bringing in transparency in the selection of judges has been seen to break the glass ceiling effect in a number of countries, including Latvia, Portugal, Germany and Argentina, where women make up 30 percent of the judges in the high courts and higher judicial bodies. In these countries, there is a mode of “exposed” selection, wherein the selectors are both visible and accountable to the public, which ensures that they can either claim credit for their selection or stand vilified for the same by the public.

It is high time that the Indian judiciary starts taking more proactive steps to ensure women’s participation in the legal process. The Supreme Court of India has seen only eight female judges since its inception, including Justice Indira Banerjee. It is reported that only 10 percent of the advocates in the judiciary are women, of whom only 2.9 percent are designated senior advocates in the Supreme Court. Therefore, it won’t be too much to stress that women should be provided reservations in the higher judiciary, as well, comprising high courts and the Supreme Court.

It has been proved that whenever there is diversity in any decision-making process, the results are always better. However, if the saviors of our democracy don’t take this approach, it will only aggravate the tacit prejudice in the judicial system.

Raghav Pandey is an assistant professor of law at the Maharashtra National Law University in Mumbai. Neelabh Bist is a fourth-year law student at the institute.