The recent appointments of three female judges to the top court, and reports that one of them – Justice BV Nagarathna – could one day become India’s first female chief justice, is being hailed as a “historic moment”.
On September 1, Justice Hima Kohli, Justice Bela M Trivedi, and Justice BV Nagarathna were sworn in.
A photo of Chief Justice NV Ramana with his female colleagues – the three new appointees and Justice Indira Banerjee, who has been on the top court since 2018 – went viral on social media and made it to the front pages of newspapers.
Law Minister Kiren Rijiju called it a “historic moment for gender representation,” India’s ambassador to the US called it a “proud moment,” and many others congratulated the new justices on their “momentous day.”
The appointments are undoubtedly welcome, as they help to close the gender gap on India’s highest court. However, critics argue that celebrations are premature until the skewed gender balance in India’s judiciary is addressed, which a retired female judge recently described as “an old boy’s club.”
Sneha Kalita, a senior lawyer, believes the excitement surrounding the potential first female chief justice is misplaced. Even if everything goes as planned, Justice Nagarathna’s turn to lead the Supreme Court would be in 2027, about a month before she is set to retire.
“Having a woman as Chief Justice will be a cause for celebration,” Ms Kalita said. “However, this appointment is purely symbolic and will have no impact.”
“When a new chief justice takes over, it takes time for them to settle down,” she explained. “The first two months are typically devoted to administrative tasks. What will she accomplish in a month? She will only be the chief justice in name.”
Ms Kalita is a member of a women’s advocacy group that has petitioned the Supreme Court for equal representation of women in courts.
It took 39 years from the establishment of the Supreme Court in 1950 to the appointment of Justice Fathima Beevi as the country’s first female Supreme Court judge in 1989. In 2018, she told the news website Scroll, “I opened a closed door.”
But hurdles remain – of the 256 Supreme Court judges appointed in the past 71 years, only 11 (or 4.2%) have been women.
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The current Supreme Court has four women, the most ever. The 25 state high courts have 81 women among 677 judges, with five of them lacking a single female judge.
“Women’s representation in higher courts is almost abysmal,” Ms Kalita said. “If we represent half of the Indian population, why don’t we also have half of the seats in the judiciary?”
If the collegium, which appoints judges, cannot find enough qualified judges in district courts, she believes the collegium should look to the Supreme Court bar, where “there are plenty of very good female lawyers.”
Legal experts and judges, including Chief Justice Ramana, have recently advocated for the appointment of more female judges.
“After 75 years of independence, one would expect women to have at least 50% representation in the judiciary at all levels. But, with great difficulty, we have now achieved a mere 11% female representation in the Supremacy “”Court,” said Justice Raman earlier this month. “The issue needs to be highlighted and debated,” he said.
Women make up 32% of court judges in the United Kingdom, and 34% of state judges in the United States. The International Court of Justice has three women on its bench, accounting for 15 to 20% of the total.
In December, India’s top legal official, Attorney General KK Venugopal, told the Supreme Court that more female judges must be appointed for “a more balanced and empathetic approach in cases involving sexual violence”. Mr Venugopal’s advice came after a male judge of a high court ordered a man accused of harassing a woman to visit her home with sweets and apologise to her.
Female lawyers have repeatedly challenged such orders in rape cases where judges have engaged in victim shaming or suggested a compromise. Gender experts argue that having more female judges will not necessarily put an end to misogyny in the courtroom.
“Women judges don’t always root for their gender,” Namita Bhandare, gender editor for news website Article 14, recently wrote in The Hindustan Times.
“It was a female judge who cleared a 39-year-old man of sexual assault of a child because there was no skin-to-skin contact. And former Chief justice of India Ranjan Gogoi was cleared in a sexual harassment case by a three-member committee of peers that included two women”.
However, Ms Bhandare argued that the judiciary cannot continue to be the domain of “upper class, dominant caste, majority religion men,” and that doors must be opened to allow for “the multitude of voices that make our democracy vibrant.”
While “all women may not necessarily make better judges,” Ms Kalita believes that more women should be encouraged to enter the legal profession.
“If we want a liberated nation, we need gender parity in the judiciary,” she said. “More women judges in top courts will inspire more women to enter the legal profession, and a society benefits greatly when there is gender parity on the bench.”