Learning Outcomes:
- Historical Background of Women in the Judiciary
- Status of Women’s Participation in various jurisdictions’ judicial systems
- A closer look at gender disparity in the Indian Judiciary
- Challenges faced by women in the legal profession
Is it justifiable for a courtroom filled with men to pass judgments on rape and sexual harassment cases? Is it justifiable for a parliament dominated by men to make laws about female reproductive rights? Is it not a parody of democracy when the institutions are dominated by a single gender?
Graphics by Tanvi (Intern at Mandonna)
One of the most important pillars of society is the Judiciary, which upholds equality before the law and societal standards based on the rule of law. Unfortunately, the judiciary has fallen victim to gender inequity. The journey from bench to bar has been a long and arduous one for women in the legal profession. Despite the strides made towards gender equality in recent decades, women continue to face unique challenges in their quest to gain a foothold in the judiciary.
From the early pioneers who fought for the right to practice law, to the modern-day trendsetter who are breaking down barriers and shattering glass ceilings, the struggles of women in the legal profession have been both inspiring and disheartening.
In this article, we’ll explore the history of women in the judiciary, their ongoing struggles and the progress that has been made towards achieving gender parity in the legal profession.
The history of women in the judiciary is a long and complicated one. Women have been fighting for the right to practice law for centuries, and their struggles have been well documented. In the United States, the first woman to be admitted to the bar was Arabella Mansfield in 1869. Mansfield’s admission to the Iowa Bar marked a significant milestone in the fight for gender equality in the legal profession.
However, it would take several decades for women to make significant inroads into the judiciary.
In the early 20th century, women began to gain a foothold in the legal profession. However, they were still subject to discrimination and gender bias. Women were often relegated to lower-paying and less prestigious positions in the legal profession, and their contributions were often overlooked. It wasn’t until the 1970s and 1980s those women began to make significant progress in the legal profession.
In India, Violet Alva presented a case before the whole High Court bench for the first time in 1944. India didn’t have a female judge in apex till Justice Fathima Beevi was appointed in 1989 (Mithan Jamshed Lam 2022). Today, women make up a significant portion of the legal profession, but they continue to face unique challenges and obstacles.
Status of Women's Participation in various Jurisdictions' Judicial Systems
Quick question: What’s 76 years old and constitutes only 3.7 per cent of females? (Okay, I geek out)
Sounds funny, don’t you think? But it’s not at all funny, especially when it makes reference to an international tribunal. Only four women have served as judges on the International Court of Justice (ICJ), the premier tribunal of the UN. All 105 of the other judges have been male. Currently, three of the 15 judges—three of them are women—serve 9-year terms on the court, including Joan E. Donoghue, the president. However, a world court with just 20% female judges demonstrates a UN commitment to gender parity that must be questioned (Barr 2021).
According to figures from Pakistan's Law and Justice Commission (2009-2013), women currently make up at least one-third of the judges in Pakistan's family courts and it is strange that this figure places Pakistan as the country with the highest number of women appointed to judicial positions among Muslim majority states with common law legal systems (Holden 2022).
We have an interesting case of Bulgaria. The patterns relating to gender representation are clearly defined chronologically in the Supreme Court of Cassation of Bulgaria (SCC)’s long 143-year existence. Over a nearly eighty-year span, the SCC was always made up of male judges. The first female Supreme Court justice was chosen and appointed in 1957. After 1960, there was a tendency towards increasing the number of female judges on the SCC, and in 1986, 15 of the 53 judges were women. After 1990, the trend of a steady increase in the proportion of female judges increased, reaching 37 out of a total of 55 judges in 1996. Since then, there has been a rise in the number of women in the legal profession. The current proportion is clearly shaped in favour of women: approximately 4:1, and currently only 21 of 91 SCC judges are men.
Although the proportion of female judges in the SCC has gradually increased, males have always held positions of authority.
Only in 2003 was a woman appointed for the first time as a deputy president of the court in a position of leadership. Two female vice presidents (leaders of the criminal and civil collegiums) and one male vice president (head of the commercial collegium) now oversee the three distinct collegia (Plural: Collegium) that make up the SCC’s organisational structure. For the first time in Bulgarian history, a woman was elected to lead the SCC in 2022 (Zakharova 2022).
A far greater issue that has gotten little attention is the absence of female representation in the Indian court. Since its inception in 1950, the Supreme Court has had 50 Chief Justices, including the current DY Chandrachud. The Supreme Court has had eleven women judges in its history, accounting for around 4% of the overall list of close to 250 justices. Of course, no women have served as CJIs. That is scheduled to change on August 31, 2021, with the inauguration of nine justices, three of whom will be women, one of whom will go on to become India’s first female Chief Justice in 2027, on the basis of seniority, Justice B.V. Nagarathna. Currently, out of 34 sitting judges of the apex court of India only 3 female judges are there. Out of these 11 female judges in the apex court, only two have ever been included in collegia.
The situation is no better at the country’s 25 High Courts. Only 13% of judges in the High Courts across the country comprising of women, the India Justice Report (IJR) 2022 has revealed. The Union Minister for Law and Justice, Kiren Rijiju, stated in a monsoon session reply on Thursday that just 96 female judges are now serving in high courts throughout the nation, despite the total sanctioned number of 1108 female judges. High courts in Delhi and Madras have the most female judges, with 12 on their benches, followed by Telangana high court, which has 9 female judges. Five out of 25 high courts in the country had no female judges at all. Patna, Manipur, Meghalaya, Tripura and Uttarakhand are unfortunately lacking in female representation on the bench (At the time of IJR published, 2022).
As per IJR “Between 2020 and 2022 the High Courts’ saw a little less than 2 percentage points increase in women’s representation, with Telangana increasing from 7.1 to 27.3%”. Amongst the High Courts, Sikkim, with a total strength of just three judges, has the highest national average at 33.3% of women judges. It is followed by Telangana with 27.3% of its High Court judges comprising women. However, in some States, the percentage of women in the High Court has dropped. Andhra Pradesh went from 19 to 6.7% followed by Chhattisgarh which slumped from 14.3 to 7.1% (Thomas 2023).
With 35% of the total number of judges at the district court level, there are more women judges than at the High Court level. While the proportion of women judges in subordinate courts varies by state, Goa has the greatest proportion of women judges at 70%, followed by Meghalaya and Nagaland at 63% each. Of the 1.7 million advocates, only 15% are women. Only 2% of the State Bar Councils’ elected officials are women. The Bar Council of India has no female members.
Challenges faced by women in the legal profession
In an open letter to the Chief Justice of India, lawyer Indira Jaising discussed the persistence of sexist attitudes and language in courtrooms even today, as well as different incidents of misbehaviour by male members. Women attorneys and judges are regularly examined and questioned about their appearance, behavior, and competence.
When a woman eventually enters the judiciary, at any level, after overcoming the difficulties of biased appointments and recruitments, she is confronted with a poisonous and patriarchal work atmosphere. Even the judiciary, which is meant to be a beacon of equality and justice, is not immune to sexual harassment and abuse of its female members.
Inadequate female representation can be directly linked to the bias which exists in the Bar and the courtrooms. A diverse judiciary, representative of people it serves, would not only increase public confidence in the judiciary, enabling it to make more informed decisions, but would also make the culture of the institution more gender neutral. It becomes important for democratic legitimacy that the institutions act in a non-discriminatory manner. And the presence of women becomes essential for this legitimacy (Chandra et al. 2018).
Another challenge facing women in the legal profession is the lack of support and mentorship. Women often struggle to find mentors and sponsors who can help them navigate the legal profession and advance their careers. This lack of support can make it difficult for women to build the networks and connections necessary to succeed in the legal profession.
Way Forward
Unless women are empowered, justice cannot be done to them hence although all the permutations and combinations of opportunity, problem and condition are so intricate path has to be traced out and the locus has to be carved out leading to a better representation of women accompanying all the conditional variables. Enough interpretation has been done but the need of the hour is to figure out the way to inculcate fundamentals of the value system among the masses. A few steps that can be taken include:
- Bring about institutional, social and behavioural change among India’s populace by sensitising and giving emphasis on inclusivity.
- Correct the patriarchal mindset in recommending and approving the names of those who are to be elevated as high court judges and come out with more representation of worthy women lawyers and district judges for elevation.
- The superior judiciary should also have a horizontal reservation for women such as subordinate judiciary without diluting merit
- It is high time that all those who matter in the appointment of judges to the high court and the Supreme Court, realise the need of giving adequate representation to women in the judiciary.
Conclusion
Is it justifiable for a courtroom filled with men to pass judgments on rape and sexual harassment cases? Is it justifiable for a parliament dominated by men to make laws about female reproductive rights? Is it not a parody of democracy when the institutions are dominated by a single gender? (Phillips 2017)
For women in the legal profession, the path from bench to bar has been lengthy and difficult. Despite recent advances towards gender equality, women continue to confront particular problems and impediments. Gender bias in the court is a significant barrier for women in the legal profession, and achieving gender parity in the legal profession would need a coordinated effort from all stakeholders.
However, many women in the judiciary have shattered the glass ceiling and achieved tremendous success, and their legacy continues to inspire women today.
References
1. https://doj.gov.in/.
2. https://www.clearias.com/women-in-judiciary/#:~:text=Subordinate%20Courts%3A%20About%2030%20percent,India%20has%20no%20female%20members.
3. Barr, Heather. Human Right watch, 2021.
4. Chandrashekaran, S. et al. “Breaking through the Old Boys’ Club: The Rise of Women in the Lower Judiciary.” Economic and Political Weekly, 2020.
5. Holden, Livia. Women Judges and Women’s Rights in Pakistan. HAL, 2022.
6. Mithan Jamshed Lam, Cornelia Sorabji, Anna Chandy, Violet Alva, Fathima Beevi, Leila Seth, Indira Jaising, Indu Malhorta. Bar and Bench. 2022. https://www.barandbench.com/columns/indias-first-women-who-broke-social-barriers-in-the-legal-field.
7. NARANG, VIDHI. “The Indian Judiciary – A Man’s World.” LOKNITI, December 6, 2020.
8. Thomas, Abraham. Hidustan times, A pril, 2023.
9. Zakharova, Hon. Galina. “Path Towards Fair Gender Representation in the Judiciary of Bulgaria.” UDNOC. 2022.
Aman has curiosity for discovering life’s many facets and is an engineering graduate. He has a strong desire to explore social and institutional structure and attempt to unearth the concealed limitations that the social value system entails.
Aman
