Symbolic Solutions and Intersectionality: The Need for Judicial Diversity
Updated: Feb 15
The article begins by setting a background for discussion on the representation of women in the Indian judiciary and refutes certain previously held notions regarding gender disparity in courts. The article then considers possible hurdles in the way of meaningful gender equality in courts, and concludes by suggesting a way forward.
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The Chief Justice of India, N.V. Ramana, made headlines with his speech at a felicitation function organized by the Lady Advocates in honour of the CJI and the Judges of the Supreme Court on 26th September, 2021. The CJI utilised the occasion to draw attention to the lack of female representation in the judiciary of India. Altering the words of Karl Marx slightly, the CJI called for the women of the world to unite, asserting that they had nothing but their chains to lose. The Chief Justice advised women to demand a 50 percent reservation, not as charity to womankind, but as a matter of right, in order to end the suppression of women that has gone unquestioned for thousands of years.
Although three women have been appointed to the Supreme Court only recently, bringing the current number up to four, the total number of women ever appointed as judges in the Supreme Court is still a meagre 11, compared to 245 men! The Supreme Court's first female judge was appointed in 1989, 39 years after the court was established. Only ten women have been sworn in as judges in the Supreme Court since then, including those sworn in recently.
With only 4 out of 33 (12%) judges of the Supreme Court being women, and the representation of women in the High Courts being no better, and only 11% of the judges being female, the words of the CJI have struck a chord with those who wish to see women represented more appropriately in all pillars of democracy.
Development of the Discussion
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Although the Chief Justice's call for better representation is the most prominent one in recent memory, the subject of women's underrepresentation in the higher judiciary has been under the microscope for a long time.
In December of 2020, Attorney General KK Venugopal advised the judiciary to ensure better representation of women across all courts in order to ensure that the justice system is more sensitive and empathetic towards women’s issues and cases involving sexual misconduct perpetrated on women. The AG gave this advice in written submissions to the Court, which had requested his aid in a petition challenging the Madhya Pradesh High Court's grant of bail in a case of molestation in August 2020 in which the culprit was granted bail by the high court on the ludicrous condition of getting a rakhi tied by the victim. Venugopal emphasised that “This initiative must come from the Supreme Court itself, considering that the power of appointment rests almost exclusively with the Supreme Court Collegium. The goal must be to achieve at least 50% representation of women in all leadership positions”. Venugopal urged the bench that “old school” judges who may be “patriarchal” in perspective should be sensitised so that they do not give orders objectifying women in cases of sexual abuse. He also advocated for mandatory gender sensitisation training for all lawyers.
Additionally, the Supreme Court Women Lawyers Association (SCWLA) filed a petition with the Supreme Court in April 2021, highlighting the abysmally low representation of women in the higher judiciary and requesting that meritorious women lawyers practising in the Supreme Court and the High Courts be considered for appointment as judges in the High Courts. The application was filed in the case of M/s PLR Projects Pvt Ltd v. Mahanadi Coalfields Ltd in which the Supreme Court was debating the subject of unfilled High Court judge vacancies. In response, the then CJI SA Bobde said that "Chief Justices of High courts have stated that many women advocates, when invited to come as judges, declined the offer citing domestic responsibilities about children studying in Class 12, etc. ".
Trickle-up Hypothesis: Does it still stand?
A reply that comes to mind easily upon hearing the discussion on the lack of female representation is that since the number of female law professionals in India is low, women's underrepresentation in courts can simply be attributed to a scarcity of skilled women in the workforce. Although there is truth to the claim that women form a smaller section of the profession, and that does play its part in the discrepancy, this explanation is not satisfactory.
It goes without saying that a shortage of women in the workforce is a result of the prejudice that women suffer in the legal profession, as well as the patriarchal origins of the profession, which contributes to the gender imbalance in the judiciary. However, there is also evidence that even when the proportion of women in the profession increases, there is no corresponding increase in the number of female judges.
Beverly Blair Cook, a prominent political scientist, who investigated the proportionality between the number of women lawyers and judges, found that between 1920 and 1970, US states differed in terms of whether women made up 1% to 5% of lawyers and 1% to 10% of trial court judges. With the increase in female lawyers post-1984, the gender disparity widened further. This led to Cook setting aside the “trickle up hypothesis” that suggested that women would rise to the bench in proportion to their numbers in the legal profession over time. Through her findings, Cook found a 50% discrepancy between the number of female judges expected based on the number of female lawyers.
According to regional data, the proportion of female lawyers to male lawyers increased considerably from the pre-collegium to the post-collegium period. Women made up 3.12 percent of all lawyers who registered in Uttar Pradesh between 1962 and 1997. However, women made up 12.3 percent of the lawyers who registered between 1998 and 2005. We see a comparable surge in the number of female lawyers practising in Delhi. Women made up only 8.1 percent of lawyers between 1981 and 1990, but they made up 22 percent of all lawyers between 1991 and 2000. Despite a rise in the proportion of female lawyers to male lawyers over the collegium period, the proportion of female judges to male judges has remained quite constant.
This made it clear that it wasn’t possible to simply attribute women's underrepresentation in courts to a lack of qualified women in the labour pool, nor can we assume that as the number of women lawyers grows, so will the number of women judges. This serves as evidence for a systemic disadvantage that women face, which must be discovered and uprooted.
Meritless Tokenism and Symbolic Parity
In her farewell speech on her retirement from the Supreme Court, Justice Indu Malhotra opined that she did not believe in representation being merely symbolic on the basis of gender. "We don't want meritless tokenism. I believe in meaningful gender parity and not symbolic parity", she added.
The concept of tokenism is often discussed in feminist theory. Rosabeth Moss Kanter, in her book Men and Women of the Corporation, talks about how organisations would often hire a few women simply to show the world that they are modern and avail opportunities fairly. However, these women often remained isolated and were seen not as individuals but as a stand-in for her group. In this way, the same patriarchal status quo was maintained, with minimal change in the system, and yet a large part of the public that demanded fairness was pacified. This tokenism can be seen in the Indian judiciary as well, where women judges are not allocated cases related to PILs and Social Justice issues as often as they should be, even though these issues require a representative and gender diverse set of perspectives.
As we see a transition to a more gender-diverse bench, this same tokenism that acts as a safety valve, pacifying the people by throwing them a bone in the form of the tokenized person, must not be allowed to take hold. The solution is not a certain number of women on the bench just to meet an arbitrary bar. Instead, the aim is to achieve genuine and organic representation.
The real, underlying objective behind the appeal for more female judges is the fact that a democratic judiciary fails to fully serve its purpose if the perspective of half of the population goes unexpressed. Women are needed on the bench because the experience of living life as a woman must be factored in when a judgement that affects women is given. It is not that a male judge is incapable of comprehending the subtle and often imperceptible, yet never insignificant mindset of a woman and deliver a judgement that is considerate of the same. However, for a man to do this requires effort but for a woman, it is her natural perspective, always permeating her judgement. As Justice Ruth Bader Ginsburg famously said:
“In her experience, Justice Coyne said, "a wise old man and a wise old woman reach the same conclusion." And so they do. But it is also true, I am convinced, that women, like persons of different racial groups and ethnic origins, contribute to the United States judiciary what a fine jurist, the late Alvin B. Rubin of Louisiana, described as ‘a distinctive medley of views influenced by differences in biology, cultural impact and life experience.’”
Intersectionality: The Way Forward
The need for diversity arises out of the immense complexity of the problems that our immensely complex society faces. Not only does a diverse bench help us to fully comprehend the effects of these problems and to consider the perspectives of a larger number of people, but it also widens the range of possible solutions that may arise when the court is faced with these problems.
Although the representation of the female perspective is an urgent need in the judiciary, so that the female perspective is given the power it deserves, we must also strive for a judiciary that simultaneously considers the perspectives of as many sections of society as possible. The unfortunate trend in the current system is that the few positions in the higher judiciary that are held by women are dominated by women from privileged backgrounds. In order to make the justice system more effective, perspectives of women from all castes, religions, and socio-economic backgrounds must be considered.
The lack of gender parity in the institutions of democracy, including the judiciary, is one of the most significant hurdles to the ideal functioning of our democratic system. If a more diverse bench with a wider range of perspectives is not achieved, and women judges are not given the position and power that they deserve, the nation as a whole will suffer by being inefficient, corrupt, and unsuccessful.
By Akshay Tiwari and Himanshi Yadav
Akshay Tiwari is a second-year law student pursuing a B.A. LL.B. (Hons.) course from National Law University, Jodhpur. He is interested in the field of Constitutional Law.
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Himanshi Yadav is a second-year law student pursuing a B.A. LL.B. (Hons.) course from National Law University, Jodhpur. She is interested in the field of Constitutional Law as well as feminist and queer theory.
Phone No.: +91-8824958039