Editorial: Gender Disparity in Indian Courts

As India’s 48th Chief Justice (CJI) took oath last month, the high-ceilinged corridors of the Hon’ble Supreme Court prepared themselves to evaluate CJI N.V. Ramana's sagacity in putting the house in order while he simultaneously handles the myriad of challenges lying before the apex court. The very same corridors are also holding their breath until the new term’s Collegium formulates a better gender-representation ratio framework.

With the recent cessation of Justice Indu Malhotra’s tenure, the pertinence of the representation issue is bound to augment. Currently, out of the 27 sitting judges of the Supreme Court (SC), Justice Indira Banarjee is serving as the only woman judge. Unfortunately, the present condition can no longer count as an exception. It has turned into a quite normal practice in the Judiciary as India has witnessed only eight women justices in the highest court of the nation since its inception. The situation is not any better in the 25 High Courts where the number of women judges-who are handling the works of a prominent organ like this- is appallingly low.

Need for change:

By providing more balance in the gender criteria, the SC might be able to explore unique perspectives and ways to understand cases in a better manner. Similarly, it can also help the judges to touch and scrutinize various aspects of suits that were not taken into consideration since 1950. Fresh approaches, advancement of our justice delivery system, landmark decisions, unprecedented productive steps- there is a possibility to achieve all these objectives. Moreover, it is highly unlikely that someone will firmly oppose the decision to embellish the top court with more diversified wisdom, vision, and reasoning abilities.

Thus, a sea change like this can also increase the chances of having the representative of a different gender on the throne of India’s Justice Kingdom. This will lead them to open the door to new opportunities, as they become torchbearers of hope, empowerment and equality for all.

Structural issues:

Making adequate structural amendments with regards to the sex ratio should be an agenda of priority on the SC’s list, albeit considerations based on other factors of diversity should also not come much below in that list.

To solve a problem like this, the search for the root cause should start from the first few steps of the Judiciary’s ladder. A possible cause can be the irregular and untimely elevation procedure followed in the lower courts of the country. Lack of opportunities for some extremely deserving people to climb up that ladder is one of the issues. The elevation preference exercised due to factors like family background and connections may also serve as an obstruction to fair promotions.

The seniority convention followed by the Judiciary works on the principles of judicial independence. The sacrosanct qualification criterion has been breached twice but such incidents cannot be tolerated again as they pose a threat to the convention’s motive. As a result, the possibility of Justice B.V. Nagaratha of the Karnataka High Court to reach the position of CJI and have a satisfactorily long tenure is low as her elevation to SC will require extreme supersession. Without making any such compromise, the Collegium should give ample opportunities to women judges to rise through the ranks and, ultimately, reach the highest echelon.

The perennial issue of the vacancy of judicial seats in the High Courts and lower courts of the country is proving to be a big impediment. This is not only in respect to the backlog of cases crippling the organ, but also proves to be a major concern in relation to the issue at hand.

The soft filibustering of an important decision like this may result in adverse ramifications in the long run vis-à-vis the judges to pending lawsuits ratio. Consequentially, the conspicuous need of the hour may, once again, get sidelined.

As per the recent applications filed in the SC, it is evident that the higher judiciary has a number of meritorious women lawyers. Sterling records of such lawyers should be reviewed and considerations for judgeship should be made accordingly. The responsible body should also work on removing the unnecessary obstacles faced by judicial aspirants. Additionally, elevation from the Bar will ensure the protection of the seniority convention.

A ray of hope:

Recently, some elites of the legal profession have expressed promising tenacity in reducing the gender disparity present in the courts of Judicature. Justice D.Y. Chandrachud, Justice R.F. Nariman, (Retd.) Justice Indu Malhotra, Attorney-General K.K. Venugopal, among others, voiced their opinion in support of the long-overdue need for better gender diversity in the bench.

However, building castles in Spain is not going to help achieve this goal in any way. What do we need now? We need a pragmatic approach to handle this problem. Having a realistic framework for the creation of new opportunities can result to be more beneficial than having complex and monotonous discussions on this subject matter.

The system should try its best to introspect and evaluate in order to bring the necessary reforms. It is high time that Indian courtrooms not only have the statue of Lady Justice but also have more women judges who actively deliver justice.

-Prabhav Tripathi