The under-representation of women in the judiciary

The absence of women in the judicial system, which is glaring and widely discussed, almost always revolves around entry-level measures that are aimed at ensuring that more women enter the profession as lawyers/ judges. While such entry-level measures are necessary, it is crucial to recognise that this is insufficient to ensure the continued support and encouragement and retention of women in the judiciary.

The Supreme Court of India’s “State of the Judiciary” report (2023) showed 36.3% of women in the district judiciary, which is heartening. In 14 States, more than 50% of candidates successfully recruited into the civil judge (junior) division were women. However, at the higher levels, the representation of women in the judiciary falls short. As of January 2024, only 13.4% of judges in the High Court and 9.3% judges in the Supreme Court are women. Further, the representation of women is uneven across High Courts, with States which include Bihar, Chhattisgarh, Jharkhand, Manipur, Meghalaya, Odisha, Tripura and Uttarakhand having either no women judges or just one woman judge.

The situation in the Bar is also bleak. Data published by the Department of Legal Affairs in 2022 show that approximately 15.31% of all enrolled advocates are women. Although comprehensive data in this regard has not been made public by all State Bar Councils, women are drastically under-represented as senior advocates, advocates-on-record, and Bar Council representatives. This results in a funnel effect, creating a smaller pool of candidates who may be able to establish themselves in the system and be considered for elevation.

Policy gaps

The under-representation of women in the judiciary is part of a vicious cycle. Women are excluded while even those women who have been included are unable to rise to positions of power to address these concerns. Access for women in the judiciary, therefore, is hindered at two levels: entry and retention.

While several States have taken commendable steps in ensuring that women enter the lower levels of the judiciary, direct recruitment continues to be a challenge for female aspirants. The Judicial Service Rules of many States stipulate that advocates must have a minimum period of ‘continuous’ practice for elevation to the Bench. For women advocates who are required to juggle family responsibilities in the absence of maternity benefits and minimum stipends, meeting this threshold is difficult.

However, even when women have managed to enter the system, continued career growth becomes difficult in the face of a discouraging and unsupportive environment which fails to take into account their specific needs. There is a continuously diminishing pool of women judges eligible for elevation to the High Court, and eventually the Supreme Court. This reverse funnel effect is caused by transfer policies which are often harsh and demanding, leaving little room for negotiation or sensitivity towards women’s continued responsibilities as primary caretakers in the household.

Every day interactions within courts also cause difficulties for women lawyers, judges and staff working in the judiciary, due to the absence of basic infrastructural requirements. A survey in 2019, by the Vidhi Centre for Legal Policy highlighted that nearly 100 district courts have no dedicated washrooms for women. Multiple courts, including prominent High Courts, lack adequate washrooms even for women judges, let alone for female staff, lawyers, or litigants. There are only limited sanitary facilities and hygienic waste disposal systems. The burden of familial responsibilities continues to be the social reality of women in India. With women expected to be primary caretakers, courts must provide family-friendly amenities including feeding rooms and crèches. However, although some courts have taken steps in this regard, the limited availability of resources results in restrictions which render them ineffective. For example, the Delhi High Court’s crèche only caters to children younger than six years.

Need for course correction

It is quite intuitive from the issues above that the twin threshold of entry and retention of women in judiciary as equal stakeholders to access is important, but the solutions have been instituted in silos. The main consequence is that the problem persists as there are fewer women represented in the higher echelons of the judiciary, and far fewer amenities that enable their access to court complexes for their continued retention in the justice delivery system.

This is a classic problem of the ever-widening public-private divide espoused by Carole Pateman in her theory wherein she points out that as women increasingly entered the public sphere traditionally occupied by men, there was a lag in the laws as well. She further elaborates that this public-private divide is the main reason why the public sphere does not cater to the specific needs of women upon their transition from the private sphere to the public. This theory can be extended to the design and regulation of the public sphere as well, which is usually not a conducive environment for women to thrive and feel safe.

Similarly, it is important to acknowledge that as more women enter courts which have been male-dominant institutions for a long time now, it is all the more necessary to employ a female gaze to implement inclusive policies to enable their entry and retention. Simply put, the female gaze in implementation means the employment of a feminist lens to recognise the differential needs of women and course-correct to diminish the unintended impacts of neutral-yet indirectly discriminatory policies and infrastructural mandates. The employment of a female gaze breaks the male standard view employed by an all-male administrative committee of judges or all-male Bar Councils, particularly in cases where there is no women representation. This helps further in an inclusive visualisation of how ‘public spaces’ — in this case, courts and their access — are constructed, aiding in the construction of a lens through which gendered impact of policies and mandates can be filtered to enable the entry and retention of women in courts.

Prioritising women’s needs

Greater participation of women in the judiciary must be driven by women-centric perspectives, which identify specific issues hindering future career growth and progress.

Former judge, Justice Hima Kohli, one of the few women judges in the Supreme Court recently noted the unconscious gender bias in courts which results in women judges being sidelined in administrative duties. This is highlighted by the fact that according to information published on High Court websites, none of the High Court Building Committees aside from Delhi, Allahabad and Himachal Pradesh currently has even a single woman judge as a member. Infrastructure needs for women are often de-prioritised as a result, with ad hoc decisions such as the construction of a single toilet block or a temporary waste disposal bin being insufficient to address women’s needs.

Similarly, in the absence of adequate representation in High Court Registries and judicial academies, women’s perspectives and experiences for policy-making, addressing bias through gender-sensitisation training are not fully taken into account.

A female-centric gaze would recognise and prioritise the needs of women and allow for greater support within the judiciary. Taking the lived experiences and realities of women into account would ensure that women’s needs are no longer invisibilised during policy-making. Infrastructural amenities, gender-sensitive recruitment and transfer policies, and adequate training and support are crucial to ensure that the judiciary lives up to its promise of empowering women.

Priyamvadha Shivaji is a Research Fellow with the Justice, Access and Lowering Delays in India (JALDI) Initiative at Vidhi, working towards a user-centric, accessible, and efficient Indian judiciary. Prathiksha Ullal is a Research Fellow at Vidhi, where she works on issues concerning urban governance, education, and the environment