New Delhi: Should seats be reserved for woman judges in the higher courts of India?
Seventy-one years after the country got its first woman judge, followed since by a handful of women, several former woman judges who would like more balanced representation on the bench are nonetheless opposed to a parliamentary committee’s suggestion for gender quotas in the judiciary.
In October, a parliamentary committee report placed in the House raised concern over “inadequate representation” of women, besides scheduled caste, scheduled tribes and other backward classes, in the higher judiciary. Seeking a promotion of these sections, it recommended social equity and justice in the higher judiciary.
To be sure, the number of woman judges in India has been low. Anna Chandy from Kerala became India’s first woman judge in 1937. She was promoted to the Kerala high court in 1959, the first woman judge to make it to a high court.
In high courts today, women make up less than 7% of the total number of judges.
The Supreme Court has seen only three woman justices in the 58 years of its existence, with the last one, Ruma Pal, retiring in 2006. Currently, the 21 high courts in the country have 42 woman justices and 561 men.
The situation is a little different in other countries.
For instance, according to the Office of the Commissioner for Federal Judicial Affairs in Canada, as of December, the Canadian Supreme Court has four women out of a total eight judges. Furthermore, nine out of 30 judges in its federal court are women.
In the UK this year, the selection of a large number of woman judges to the high court raised their level to about 15% of the total strength. Even China is known to have a large number of woman judges.
The Indian Parliament in May authorized its standing committee on personnel, public grievances and law and justice to review a draft legislation that sought to increase the number of Supreme Court judges to 30 from the present 25.
The country’s judiciary has an enormous number of lawsuits pending and the higher courts are no exception. The apex court alone has some 50,000 cases pending and about 73,000 new lawsuits as of September this year.
The committee reported in August that “the judiciary is unable to comprehend the social flavour of the legislations passed by Parliament and the state legislatures,” since it has inadequate representation from “weaker sections” of the society, referring to disadvantaged castes and classes, and women.
“We have recommended that when the constitution is changed, weaker sections be taken into consideration. Since representation of women is so low, our ambition looking ahead is 33% reservation for women,” said committee chairman E.M.S. Natchiappan, who is a Congress lawmaker from Tamil Nadu.
Interestingly, a draft legislation that proposes to reserve 33% of seats in Parliament has been hanging fire since it was introduced in the Rajya Sabha on 6 May.
The Bill to raise the number of judges was passed in the lower house on 22 December and is now up before the Rajya Sabha for approval.
Natchiappan, however, clarified that “the reservation should not be perennial but for a certain period till women are properly represented”.
Good intentions notwithstanding, retired woman justices Mint spoke with were not in favour of reservations in the Supreme Court and high court benches.
Former justice Leila Seth, the first woman judge in the Delhi high court in 1978 and first woman chief justice of a high court (in Himachal Pradesh in 1991) spoke against reservations. “Especially in the Supreme Court, that is the highest court of the land, appointments (of judges) should be all about merit,” Seth, 78, said.
Former Supreme Court judge Ruma Pal agreed. “I don’t think women should be appointed (as judges) merely on the basis of gender,” Pal, 67, said.
Pal’s male counterpart, former chief justice of Delhi high court, justice Rajinder Sachar says that while he strongly supports the draft legislation that proposes reservation for women in the legislature, there is no need for reservations in the judiciary. “Let’s not overdo it. In politics, it is different as women have not had an opportunity to compete. But that is not so in the judiciary. Appointments in the judiciary are about experience, competition and achievement. ”
Gender bias does exist in the judiciary, said Fathima Beevi, the first woman to be a Supreme Court judge in 1989. “There maybe more competent men, but among women, the competent ones must be considered. Unlike 50 years ago, there are more women in the legal profession today. Even if we are equal, authorities are not giving sufficient and equal opportunities to women,” Beevi, 81, said.
But Pal believes otherwise. “There is no reason to complain about the lack of women in the judiciary. There is no 50:50 man-woman ratio in the legal profession. There are less women as the proportion of men and women in the judiciary is skewed,” she said.
The judges also said that currently, the proportion of women in lower courts is higher than the high courts and Supreme Court, and is rising.
The Union ministry of law and justice has no central database with information on the number of judges in sub-ordinate courts.
Also, all three pointed out that since they chose to enter the legal profession, more women are coming into it. “Back then, very few joined the legal profession. Now we see the representation growing, with more young girls joining the law schools in India,” Pal said.
“The legal profession is a relatively new one (for women), compared with medicine, nursing or teaching,” Seth said, adding that she expects the number of woman judges to increase gradually as more women become lawyers.
Pal said the only obstacle faced by woman judges is the attitude of society towards them. “It is assumed that a man is competent; whereas a woman has to prove herself before she is expected to be competent.”