IWD: Why Gender Representation Continues to Elude Judiciary

The upcoming International Women’s Day seeks to ‘Accelerate Action’, to amplify and expedite the sedated movement towards gender equality across the globe. While the global movement for gender parity continues to claim and reclaim spaces, the Indian judiciary struggles to move beyond its predominantly ‘Male, Stale and Pale’ disposition. The higher judiciary operates under a collegium system, which has become more opaque, prone to effectively brandishing more bias in the name of ‘representation’. 

Traditionally, law as a profession was deemed inappropriate for women. As time has progressed, so have women, and today women pursue this career of their preference. Nevertheless, we do not have enough women in our  judiciary, and certainly not enough in the higher judiciary. Judges play a crucial role in the administration and delivery of justice as their judicial decisions significantly influence social structures, public order, and the systemic inequalities that exist within the system. At the entry level, women law practitioners are not only confronted with the daunting challenge  of outperforming their men counterparts, tackle instances of sexual harassment, and manage social responsibilities, but, peculiarly, when women lawyers or judges advocate for their equal rights, convenience of archaic practice dictates them to be labelled as aggressive, difficult and sensitive. 

Nevertheless, we do not have enough women in our judiciary, and certainly not enough in the higher judiciary.

Only 11.5 percent of High Court judges are women

As of 2023, women constitute approximately 36.3 percent of judges in subordinate courts, up from 27.6 percent in 2018. The representation of women judges in High Courts has increased slightly from 10 percent in 2018 to 13.4 percent in 2023, with only 11.5 percent of judges being women. The Supreme Court remains the least diverse, with only 9.4 percent (3 out of 32 judges) being women as of December 2023, a marginal increase from 4 percent in 2018. There are a total of 367 vacancies in the High Courts. 

The High Courts of Punjab and Haryana, Delhi, and Bombay have the highest number of women judges. Conversely, states like Orissa, Jharkhand, and Chhattisgarh have only one woman judge each, while Patna and several others have none.

With women's heightened participation in public life, underrepresentation in leadership roles eviscerates the entire movement towards equality. In reality, a comparatively limited number of meritorious women have been or currently are involved in the judiciary, especially in high-ranking judicial leadership roles. The frenzy surrounding ornamental representation has left meritorious women lawyers trepidatiously orphaned by a system that prides itself in ‘elevating’ women to the bench. 

The hurdle of ‘continuous practice’

Article 233 of the Constitution notes that for appointment as a district judge, an advocate should have not less than seven years of practice. The Supreme Court has interpreted this to mean ‘continuous practice’. What the Court has omitted is the social expectations attached to women advocates and judges. 

Women are not immune to the “leaking pipeline”, the term encapsulating how employed women quit the workforce mid-career to support their children’s education or tend to parents or in-laws in need of additional care—invisible care work that falls upon women. Thus, the Supreme Court’s requirement of ‘continuous practice’ of seven years for women is,  in reality, a disqualifying criterion for many women advocates because of the intervening social responsibilities of marriage, motherhood and allied responsibilities that prevent them from having seven years of continuous practice. The perils of social maladies faced by women lawyers and judges are met with efforts to enforce tacit acceptance and encourage pliant behaviour amongst women instead of promoting their individual skills, leadership qualities, legal acumen and foresight. 

Thus, the Supreme Court’s requirement of ‘continuous practice’ of seven years for women is,  in reality, a disqualifying criterion for many women advocates

The schools of reasoning on women’s representation

There are four main viewpoints on the issue of women being promoted to higher positions in the judiciary: utilitarian, pragmatic, ontological, and deontological. The utilitarian approach places a strong emphasis on experience and the abilities that women judges uniquely bring to the position. The pragmatic view uses broader justifications than the utilitarian one to support the benefits of social advantage of women's promotions or appointments. The ontological viewpoint upholds the principle of citizen equality, which states that an equal number of women should serve as judges and that social advantage and utility maximization are irrelevant. According to the deontological perspective, which emphasizes the importance of good over right and holds that what matters is a just course of action rather than the right one, the representation of women is an unqualified human good. These viewpoints may be briefly discussed in relation to judicial elevations, but they should never be completely ignored.

Numerous constitutional conventions pertaining to "representation" have developed gradually but diligently, and they should be thoroughly comprehended and honoured.

Numerous constitutional conventions pertaining to "representation" have developed gradually but diligently, and they should be thoroughly comprehended and honoured. The federal diversity principle, which should guide the Supreme Court's composition, has proven to be the most resilient of these. The second is the indisputable requirement that merit and worth be given precedence over all other considerations in judicial work. Although it must be noted that women as a group or class do not constitute a numerical minority, ethnic pluralism is a third convention that supports the elevation of minorities, including women, scheduled castes, and tribes.

Collectively addressing non-inclusiveness in the legal community

In a nutshell, it makes us reflect that the problem of gender equality is rather deep rooted. It calls for collective combat to address problems related to gender inequality in the workplace. Women lawyers and judges need to initiate action and increase their collective bargaining power, instead of finding ways of disparaging the merit of another. 

In a significant development last week, on February 28, 2025, the Supreme Court, while reinstating two women civil judges, addressed the litany of issues confronting women judges which includes insensitive work environments and lack of guidance.

The legal community must continue to introspect and acknowledge the inequality within the profession, especially more so now since the Collegium is evidently forgoing the contributions of numerous astute and meritorious women. Although it might not transform circumstances immediately, collective power is significant. Veteran women in the legal fraternity must unite now in the interest of our younger women colleagues.

Mahalakshmi Pavani is a Senior Advocate. She was the first woman from Karnataka and the sixth woman to be designated ‘Senior Advocate’ by the Supreme Court