Women in Indian Judiciary

As Justice Indu Malhotra retired on 13^th of march 2021, Supreme Court of India is left with only 1 woman judge which consists of 33 judges excluding chief justice of India. The remaining one is Justice Indira Banerjee who is due to be retired in mid-2022. Justice DY Chandrachud, another supreme court judge who is in the line of becoming Chief Justice of India on retirement of Hon’ble CJI NV Ramana, remarked the saddening fact that following the retirement of Indu Malhotra, the Supreme Court is left with only 1 woman judge on the bench. Disheartening fact of our judiciary is that no. of female participation in the law governing body of the country is far less than equal, even when there is continuous approach to encourage feminism in all sectors. The country has seen 1^st woman president in the form of Pratibha Patil, Indira Gandhi as first women prime minister, however 1^st women chief justice is yet awaited even after 70+ years of Independence and constitution of top-most court. 1st women judge appointed in the supreme court of India was Fathima Beevi, who was appointed in 1989, i.e., after 42 years of the eve of independence. She was appointed for being Muslim also, as at that time, there was no Muslim judge in supreme court but her judicial record was quite ordinary. When the same was pointed out to the then Chief Justice Venkataramiah, he openly remarked that she was going to be a very junior judge in the Supreme Court, and would retire in two and a half years and would therefore not be heading a bench, so it didn't really matter. When his words were reported in local newspapers and magazines, lawyers and judges were shocked. Women lawyers were particularly dismayed on such remark by the CJI, as she was the first woman judge of the Supreme Court and this was adding insult to injury-first by appointing a retired and not so competent woman judge, and secondly by making such disparaging remarks. There has been mass role of certain considerations while appointing judges in the Supreme Court which include caste, cultural background, place of birth etc. Interestingly during Indira Gandhi’s regime, ideology rose as an important element to appoint a person from lower judiciary or bar to Supreme Court of India. Though the reasons for absence of equal representation of women in judiciary are endless, but the quest for gender equality has been in voice from some decades. In India where women were always considered subordinate to men in their status, in one way or the other, Patriarchy grew and made it roots undetachable from the judiciary. Supreme Court judge and member of collegium, Rohinton Nariman on April 19, 2021 in 26^th Sunanda Bhandare Memorial lecture, in his speech “Great woman of History” observed that India is still awaiting first woman chief justice. “Justice Sunanda Bhandare was probable the candidate for becoming the first woman Chief Justice of India. Unfortunately, life was cruel to her, and cut her remarkable career short”, Justice Rohinton Nariman stated. There were only 8 women to be able to make it to topmost court. They are – Fathima Beevi, Sujata Manohar, Ruma Pal, Gyan Sudha Mishra, Ranjana Desai, R. Banumathi, Indu Malhotra, and Indira Banerjee, out of which only two have been able to be included in collegium of top court, which is responsible for appointment of judges to high courts as well as Supreme Court. These 8 appointments are out of 247 appointments being made to Supreme Court till 2020. In such constitutional cases affecting women’s rights, the benches have been profoundly consisted of dominantly male judges as in the case of Sabrimala temple & Triple Talaq case. The then Chief Justice of India SA Bobde while hearing a petition from a union of women lawyers seeking reconsideration for upliftment of meritorious women lawyers to high courts and supreme court, remarked that time has come for 1^st woman CJI. Attorney General of India KK Venugopal also readily observed that there has never been a woman chief justice of India. The first woman to be the chief justice of a state high court was Justice Leila Seth who was appointed as the Chief Justice of Himachal Pradesh High Court in 1991.

Article 14 & 15 guarantees fundamental right to equality and protection from discrimination on grounds of religion, race, caste, sex or place of birth. Ironically, there are only 81 female judges in 25 high courts currently in our country as compared to 1078 male judges, i.e., approximately 1 female judge as compared to 13 male judges. The high courts of Manipur, Meghalaya, Patna, Tripura, Telangana, and Uttarakhand doesn’t even have single sitting judge who is a woman. Such representation is abysmal.  On lack of gender diversity all over the world, U.K. Supreme Court President J Lord Robert John in a lecture during International Judicial Conference said – “The low proportion of women judges on our highest courts is a problem in my country and it is one we share with others”. In United States, 1/3^rd judges appointed in federal court are women, so figures are not encouraging in sense of gender equality.

Justice Nariman’s father, Fali S. Nariman, an eminent jurist and considerably doyen of the bar has said in an interview to The Wire that although reservation is not a way to uplift women to the Supreme Court, but it should be the conscience and aspiration of the Chief Justice to take notice of the issue, and suggest such meritorious women judges and lawyers to be recommended in the collegium meeting. However, in appointing such women to be CJI, there must be no supersession in any circumstances as was done during Indira Gandhi’s regime where Justice A.N. ray superseded 3 judges senior in line to become chief justice of India. It was also laudable of Nariman’s statement that collegium is not an efficacious method for appointment of judges in the higher judiciary as it is difficult to come on affable solution in matter of recommendation of names for appointment by all the 5 senior-most judges in the Supreme Court. Reforms should be made and the principle of gender equality as enshrined in our constitution must also be observed by the courts as well.