Women’s equal representation in the higher judiciary: a case for judicial diversity in India

ABSTRACT

Diversity is an inherent feature of democratic nations. However, in many democracies such as India, the judiciary does not reflect the rich diversity of the country. Most judges in the Supreme Court and High Courts in India are cis-gender, upper-caste men. This homogenises the perspective on law and justice. Women judges and lawyers are faced with structural barriers such as gender stereotypes, discrimination, harassment, and insufficient institutional and infrastructural support. Additionally, caste, class, sexuality, and religious identity are some factors that create multiple axes of oppression to contend with. Through a critical examination of various feminist lenses, we highlight the systemic and implicit biases that lead to disproportionately low numbers of women judges. We then recommend institutional reforms that could facilitate the creation of a more diverse higher judiciary in India.

KEYWORDS:

• Gender diversity
• gender stereotype
• judicial appointments
• women judges
• constitutional courts

Acknowledgments

We would like to acknowledge the excellent research assistance of Abhaya Tatavarti, Dewangi Sharma and Monmita Chakrabarti at different stages of the paper. Our gratitude to Disha Choudhari for their excellent research and editorial assistance at the final stages of the draft. We are grateful to Prof. Sheetal Ranjan, Prof. Rosemary Barberet and Prof. Dawn Beichner-Thomas for their immense editorial support and guidance and to our brilliant anonymous reviewers for their critical and constructive comments on our drafts that substantially improved our paper. Finally, our gratitude to Dr. C. Rajkumar for their institutional support.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1. The World Directory of Minorities & Indigenous Peoples, 2022 defines the term “Dalit” as referring to “the people otherwise referred to as Harijans, or ‘Untouchables,’ and has come to symbolise for them a movement for change and for the eradication of the centuries-old oppression under the caste system” (Minority Rights Group, 2022). Scholar-activist Gail Omvedt noted that the term Dalit first came into use in the 1930s as a Hindi or Marathi translation for the term “depressed classes” and means downtrodden or crushed. However, in 1970s, the term took on political meaning with the emergence of the Dalit Panthers and has since been broadly defined to include all the class and caste oppressed (Gulati, 2018).

2. Social stratification along the lines of the caste system is a marked feature of Hindu society in India and the subordination of women stems from both caste and gender hierarchies which are the organising principles of the social order of Brahmanism (Chakravarti, 1993). In this paper, the high social status and hegemonic privilege experienced by Brahmins is relevant to both the patriarchal and caste-ist attitudes towards minorities in the Indian judiciary.

3. Lok Adalats are alternative dispute redressal mechanisms which have been given statutory status under the Legal Services Authorities Act, 1987. These forums are used to amicably settle cases either that are either before a court of law or at a pre-litigation stage. A decision made by a Lok Adalat is deemed to be a decree of a civil court as per the Legal Services Authorities Act, 1987.

4. In India, there are two distinct routes through which an individual can be appointed to a judicial office in the higher judiciary: the first is by appearing for the judicial services appointment examinations and processes and the second is via direct elevation from the bar. The expression “judicial service” refers to a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge.

5. The term Bahujan refers to a broader definition of the oppressed groups which includes Scheduled Castes (SCs), Scheduled Tribes (STs) and Other Backward Classes (OBCs), as well as minorities which includes Muslims. The term Bahujan thus brings within its ambit everyone but Brahmins and forward castes (Uke & Bhaware, 2022). However, it has been used recently to refer to Shudra and other backward classes. Suraj Yengde uses the term Dalit-Bahujan to define the subaltern caste groups of the Indian caste order. This includes the Shudra and Ati-Shudra, the two lowest groups in the hierarchy of the caste system (Yengde, 2018).

The term Adivasi on the other hand is the collective term used to refer to many indigenous peoples of India and encapsulates a diverse group of persons with varying ethnicity and cultural identities all of whom the legal term “Scheduled Tribes” does not necessarily include (World Directory of Minorities & Indigenous Peoples, 2022).

6. The Additional Solicitor General (ASG) is a senior ranking law officer of the Court appointed by the Government of India and assists the Attorney General of India & Solicitor General of India in advising the Government of India in such legal matters as may be referred to them from time to time or performing other legal duties to provide such assistance.

7. There are two classes of advocates in India, Senior Advocates and other Advocates, the former being designated as senior by the Supreme Court of India or one of the High Courts in the country. As per the Section 16 of the Advocates Act, 1961, an advocate may be designated a senior if either the Supreme Court or a High Court is of opinion that they deserve such distinction by virtue of their experience and knowledge of law and standing at the bar.

8. The expression “judicial service” refers to a service consisting of exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge. A Division Bench of Justice D. Y. Chandrachud and Justice Surya Kant of the Supreme Court of India have appointed Ms. Gita Mittal as the Chairperson of the VWDC Committee for an initial tenure of two years vide its order dated January 11, 2022, in the case of Smruti Tukaram Badade v. State of Maharashtra & Anr.

Additional information

Notes on contributors

Gita Mittal

Justice Gita Mittal is an Indian judge, former Chief Justice of the Jammu and Kashmir High Court, and the first woman judge to serve in that capacity. She has also served as the Acting Chief Justice and Judge of Delhi High Court. She has 23 years of litigation experience prior to her appointment as a Judge. During her tenure as a High Court Judge, Justice Mittal served on a number of administrative and judicial committees at the Court. She was the Chair of the Delhi High Court's Mediation and Conciliation Center, and served on committees that dealt with complaints concerning sexual harassment, working conditions, performance assessment of judges in subordinate courts, and judicial training. She led an initiative to establish special courtrooms for vulnerable witnesses in the Delhi High Court, with the first such courtroom being established in 2012. Justice Mittal wrote a number of significant judgments as a judge at the Delhi High Court including on the rights of transgender persons, military laws and disability rights. On 25 October 2019, Justice Mittal authored a significant judgment in Suhail Rashid Bhat v. State of Jammu and Kashmir, striking down the Jammu & Kashmir Prevention of Beggary Act, 1960, a law drawing from colonial legal principles to penalize poverty and public movement. In 2021, Justice Mittal was appointed as the first woman chairperson of Broadcasting Content Complaints Council (BCCC), India.

Dipika Jain

Dipika Jain is Professor of Law, Vice Dean (Research), Vice Dean (Clinical Legal Education) and the Director of the Centre for Justice, Law and Society at Jindal Global Law School (JGLS), India. Her research has been cited by the Supreme Court in the landmark decisions of Navtej Johar v. Union of India (2018) and X v Principal Secretary, Health and Family Welfare Department, Givt of NCT of Delhi (2022). In 2018, she was designated as the first Research Professor at JGLS. In 2020, her research was cited in the legislative debate on abortion laws in the Indian Parliament. She is published in several prestigious journals, law reviews, and compendia internationally found at https://jgls.academia.edu/DipikaJain. She has consulted for the UNDP; Centre for Reproductive Rights (New York); and IPAS Development on Reproductive Justice, Digital Health and Family Law. As the Director of CJLS, she has addressed various barriers in access to justice for marginalised persons in India.