Judicial Appointments: Why The Scales Of Justice Are Tilted Against Women

 By Rohini Roy, National Law University, Odisha.

It took 39 years to appoint India’s first female Chief Justice, an experience that was described by CJ Fathima Beevi as ‘I have opened the door’ But, even in the 21st century the prospect of India having its first female CJI seems elusive. 

The Collegium’s structural biases have perpetuated a paradigm of male dominance in the judiciary, especially within its upper echelons. Lack of transparency and accountability has meant that much of the backdoor sexism that exists during appointments go undetected.

Image Courtesy: The News Minute

Moreover, men have mostly ever been a part of the Collegium (only two women have been a part of it). Unsurprisingly, appointments aren’t made bearing in mind the unique struggles of women.  

Currently, there is gross under-representation of women across all levels- only 1 female Justice in the SC and 82 female judges across HCs even though there are 411 vacancies. Six HCs have no female justices and there is only 1 female CJ out of the 25 HCs. 

Around 27% of judges in district judiciary are women as a selection is on the basis of competitive exams and merit which makes it more transparent. However, even with such impressive numbers, the tendency of the Collegium to select more lawyer- judges have meant that very few district judges actually get to the higher judiciary. 

The SC has only had 8 female Justices and the overall trend of selection over the decades is quite dismal

The table shows that on average, only 2.6 female judges have been appointed per decade.

Though the criteria for judicial appointments is largely unknown, it's widely accepted that the seniority and income criteria are some of the criteria used.

Seniority Norm

The collegium always prefers those with most years at the HC for the SC. Thus, only CJs of HCs have been selected over the years. The above data regarding the lack of women at the helm of HCs shows how exclusionary this norm is. 

One needs to have at least 7-9 years of continuous practice to be considered senior enough. This norm completely ignores women’s social and personal responsibilities that disproportionately fall upon them. This makes it difficult for women to practice continuously for many years and so, many married women do not get to these senior positions in time.

Studies suggest that a lot is also demanded from a woman to be eligible for the SC. These suggest that on average, women CJs have experience as CJ across more HCs than their male counterparts.

Income Norm

Income is used as an indicator of the success and merit of the lawyer to be eligible for the higher judiciary. However, it’s not in touch with the realities of practicing advocates neither can it be deemed a measure of merit. 

Lawyers practicing in commercial spheres of law are more likely to make more money in their careers but this sphere has largely been the prerogative of men.

Generally, women have been typified as advocates for Family Court whilst professions in commercial or even criminal law are deemed to be unfit for women. Since only those advocates that practice in front of the HC or SC judges ever get invited, a large section of women are automatically exempted. Clients generally prefer male litigators due to gender bias thus, widening the wage gap. Resultantly, Just. Indu Malhotra has been the only woman ever to be elevated directly from the bar to the SC.

Currently, there are 403 male Senior Counsels as opposed to only 13 female Senior Counsels. This clearly shows how it is more difficult for a woman to get the needed recognition to attain positions in the higher judiciary. 

Recommendations

The Collegium has received flak for being undemocratic with many calling for it to be removed. But in the interim, making the Collegium’s procedure and decision-making process transparent along with the criteria on the basis of which judges are appointed can potentially prevent the back-door sexism that exists during appointments. The practice of publishing the reasons for appointing justices should be restarted to ensure this transparency. 

Relaxing seniority norms and ensuring more women are appointed to HCs either by improving appointments from lower courts or by relaxing the income norm can make them more inclusionary. The seniority norm has been violated in the past and by appointing a senior judge of the HC instead of only a CJ could ensure more gender diverse benches are formed. Moreover, the income norm is a highly utilitarian concept that abrogates from the very concept of merit. Thus, income should be disregarded and instead merit and quality of the practice of appointees should be emphasized upon.

Interviews with female judges have shockingly revealed the gender bias women have to face as both judges and lawyers and how the legal profession is tilted against women. Thus, inclusion of gender sensitivity courses and training to the law school curriculum or training for the bar or judiciary is one way to reduce existing sexism. Such training should be made available to sitting judges also.

“Why is it that in this courtroom I face a white magistrate, am confronted by a white prosecutor…Can anyone …suggest that in this type of the atmosphere the scales of justice are evenly balanced?”

                                                                                                                 -Nelson Mandela

Mandela’s words tell us why diverse benches are needed- to ensure that our judicial institutions are democratic and that the confidence of the people in the judiciary is maintained. A Court survives so long as the citizens have confidence in its ability to ensure justice and equity to all. But how can the SC promise these lofty values when it engages in tokenism by simply relying on quotas ‘to improve gender diversity? 

The recent controversial remark made by CJI Bobde, reveals the regressive ideas that exist within the walls of our judiciary. Currently, there is gross under-confidence in the State’s ability to provide justice to victims of sexual abuse. Gender-diverse benches would mean more sensitivity towards sexual assault victims, better execution of justice, and progressive interpretations of laws; all of which are a dire need today. 

But above all, gender diversity should be improved to ensure that our judiciary is filled with people who deserve to be there due to their merit and not because they belong to a certain gender.