An analysis of the situation of diversity in Indian judiciary
Indian judiciary and representation of all segments of society
- The story: The Indian higher judiciary has often been criticised for not being adequately representative of all segments of the population. In the recent spate of appointments, many women justices were appointed, one of whom (Justice BV Nagarathna) may become the chief justice in a few years. While that is heartwarming indeed, it has raised the larger issue of low representation of women in the judiciary.
- Women in Indian judiciary: The first-ever woman judge (Justice Fatheema Beevi) in the Supreme Court (SC) was appointed in 1989, 39 years after the court came into existence! Clearly, something was amiss. So far, only 10 women have become judges in the highest court.
- High Courts - The share of women judges in High Courts (HCs) was equally poor. Women judges account for only 11% of HC judges. In five HCs (Patna, Meghalaya, Manipur, Tripura and Uttarakhand high courts), no woman served as a judge, while in six others, their share was less than 10%. The percentage of women judges at the Madras and Delhi High Courts was slightly higher.
- District Courts - Women's representation in the judiciary is slightly better in the lower courts where 28% of the judges were women as of 2017. But it was lower than 20% in Bihar, Jharkhand and Gujarat.
- Why women don't make it: First of all, the entire process of appointment (in higher judiciary) isn't completely transparent. More women tend to enter the lower judiciary at the entry level because of the method of recruitment through an entrance examination. But the higher judiciary has a collegium system, which perhaps is more opaque and, the results speak for themselves.
- Reservations - Some states have a reservation policy for women in the lower judiciary, which is not there in the high courts and Supreme Court. A reservation quota may be quite encouraging for women, trying to enter the system.
- Other supporting reasons - In states where other supporting factors are present in sufficient measure, women’s quotas perhaps help bridge the gap in gender representation. Note that the Bill for giving 33% reservation to women in Parliament and state legislatures has not been passed till date, despite all major political parties publicly supporting it.
- Age - There are factors of age and family responsibilities. Many lady judges join the service very late, which makes their chance of making it to the high courts or Supreme Court poor. Some are not able to focus on their growth as a judge because of family responsibilities.
- Female lawyers: Because lawyers elevated from the bar to the bench form a large proportion of judges in the high courts and Supreme Court, the low number of women advocates reduces the potential pool for selection. Women are less than a quarter of all lawyers in India.
- Sad scene: So while women constitute about 50% of the total population of India, and a large number of women are available in the Bar and in the judicial services for elevation, the number of women judges in higher judiciary has consistently remained low.
- Why having women is a good idea: More women judges will increase the willingness of women to seek justice and enforce their rights through the courts. Having a judge who is the same gender as the litigant, in a gender-oppressed society, can play a role in setting the litigant’s mind at ease. Diversity on the bench would bring in alternative and inclusive perspectives to statutory interpretations. The same holds true also for judges from other marginalised groups like Scheduled Castes, Scheduled Tribes and Transgenders.
- Solutions: The patriarchal mindset in the entire selection process has to be done away with. Women empowerment will begin by first putting them in positions of power. It may be a good idea to have a certain percentage of judge positions reserved for women (and other marginalised groups). There are many vacancies in high courts, and this could be a starting point. .
- Summary: India's society is hugely diverse, and judiciary does not represent that adequately. Time for a big change has arrived.
- EXAM QUESTIONS: (1) Why is India's judiciary not diverse enough? Trace the historical root of this problem. (2) If you were the policymaker, what five steps would you take to make India's higher judiciary truly representative? Explain analytically.
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