Women's Day | To Be A Woman In Indian Judiciary

The Indian judiciary takes pride that women's participation in the judiciary, especially in the subordinate judiciary, has increased substantially over the years.

The increased diversity within the judiciary certainly does overall impact the quality of decision-making because of the unique lived experience women and other traditionally excluded communities bring to the 'male-default' system. However, the increased number of women judges in the system may merely indicate formal equality because their 'effective' participation remains a far cry.

Justice Nagarathna mentions three important indicators of women's holistic participation in the judiciary, namely: their entry into the legal profession, their retention and growth, and their advancement to senior echelons of the profession.

Prima facie, the numerical criteria may pass the first indicator. In the 2023 'State of the Judiciary' report published by the Centre for Research & Planning, Supreme Court of India, women now constitute 36.3 % of the working strength of the district judiciary. In 14 out of the 16 States examined in the report, more than 50% of selected candidates for the Civil Judge were women.

While women's increased entry into the judiciary paints a hopeful picture, the number goes substantially down when it comes to their appointment as judges in the High Courts and the Supreme Court. As per the report, only 13.4 percent of women are judges in the High Courts. This is much lower for the Supreme Court as only 9.3% of the women judges are there in the Supreme Court.

It should not come as a surprise that as of today, out of 25 High Courts, only one High Court, Gujarat High Court, is headed by a woman Chief Justice. The presence of women judges in the Supreme Court Collegium remains an abysmal low. 

What are the issues or reasons why we are unable to retain women judges in the higher judiciary?

The general reason remains a lack of a level playing field. As once stated by former Chief Justice of India, D.Y. Chandrachud, women traditionally were never a priority in institutional design. Now, even when they try to break into elusive and exclusionary places, they are often met with institutional apathy at best and hostility at worst.

Of course, the results are high attrition rates and professional stagnation in entry-level and mid-level roles for women. This is evident from the fact that India will get its first female Chief Justice of India (Justice B.V. Nagarathna) only in 2027 and that to for 36 days. The average of a male judge occupying the position of Chief Justice of India is 18 months.

Even today, if one dives deep into the system, one finds that the judiciary apart from being male-centric is unable to accommodate gender-specific concerns. From the time a woman judge enters the judiciary to the time of her retirement, instances show that the service tenure is often marred by a lack of accessibility to gender-specific infrastructure, a hostile environment, and stigmatisation. On this International Women's Day, we look at three such instances in this piece.

Termination of probation marked by stigmatisation

Recently, a bench of Justices Nagarathna and NK Singh set aside the dismissall of two lady judicial officers in Madhya Pradesh, whose services were terminated during probation for various reasons including low disposal rate, adverse remarks in the Annual Confidential Report and pending complaints against them.

The service of one of the lady officers was terminated by the Madhya Pradesh High Court merely due to her “pendency and disposal” rate without holistically appreciating the practical difficulties faced by her.

While ordering her reinstatement, the Court considered that her performance was downgraded despite the fact that she submitted an explanation of how she had a hard time handling a vacant Court after she suddenly got married in 2020 and was admitted to the ICU after contracting COVID. Her misery didn't end here as in 2021, her brother was diagnosed with blood cancer and soon after, she suffered a miscarriage due to which she availed a 45-day leave.

The Court found that while gender is certainly not a rescue for poor performance, the ability to function as a judge cannot be solely determined by courtroom realities without considering the personal circumstances, often gender-specific in regards to women. It remarked how the High Court adopted an agnostic attitude and completely lacked the sensitivity to acknowledge that the woman judge had just suffered a miscarriage, which has serious physical and mental health implications on women to the extent that it could lead to post-traumatic disorder or even in many extreme cases of complications.

During the hearing, Justice Nagarathna wondered, and rightly so, whether such criteria would be set on males if they menstruated. Miscarriage or pregnancy, instances simply reflect how a woman's life is a trajectory marked by various unique lived experiences.

Accessibility to physical infrastructure

While menstruation may not necessarily be unbearable for women in general; for many, taking a tablet becomes a necessity to get through the day. With menstruation comes the need to maintain basic menstrual hygiene. But how women judges are expected to do that when there are no private toilets (in some cases, no toilets at all and women district judges can only access them when they return to their residence in the evening) on the Court premises?

As per the Supreme Court's report, 80% of the District Court complexes have separate ladies' toilets. Ground reality shows that many of these washrooms are dysfunctional, with broken doors and irregular water supply. Sometimes, they are not attached to the chambers of the judicial officers and in many cases, there are common washrooms for both male and female judges.

Another stark reality is that only 6.7 of them have a facility for sanitary napkin vending machines and are female-friendly. A woman on average has to change sanitary napkins every 6-8 hours, which then has to be safely disposed of, necessarily requiring more than just sanitised toilets in the Court premises.

Gender-specific infrastructure such as creche is not available in most of the District Court complexes. As per the data on iJuris, only 13.1% of the District Court complexes have a childcare room/facility as of September 2023. For states like Uttar Pradesh, Andhra Pradesh, and Uttarakhand, there is no creche facility in any District Court complex.

In one of the cases where the Court was dealing with a petition seeking sanitised toilets for women, specially-abled persons and transgender persons, Justice J.B. Pardiwala mentioned a sad example where a young woman lady judicial from Gujarat had to write it to the Supreme Court flagging the concern of lack of accessibility to the private washroom. She stated how she had to request a male judge to allow her to use his washroom.

Justice Pardiwala asked if there is any data on the accessibility of toilets to female judicial officers. Data on such issues are usually not collected and only when such instances come before the different Courts is when the issue gets highlighted. That's why, there are limited ways in which the ground reality can be assessed.

With accessibility comes the maintenance of the infrastructure. One of the counsels, Senior Advocate B.D. Konwar, in the sanitised toilet case, described the toilets in various Courts including Delhi's Saket court were in “pathetic” condition. In one session's Court in Assam, he described how a judge had to shift his courtroom to subordinate judge because of the smell emanating from the toilets.

In a case in 2015, a female judicial officer from Gujarat wrote to the Supreme Court about how she was deprived of the proper chamber with an attached toilet. She had no option but to share a public toilet meant for litigants.

Another issue that she raised was that she faced hostile conditions from the High Court administration where she was not even allotted proper residential accommodation. She had no option but to spend a night in her private vehicle.

The lack of adequate residential accommodation remains another concern for female judges. There is more than 60% lack of residential accommodation for district judiciary in States like Sikkim, Meghalaya, Jammu & Kashmir Ladakh and even Delhi.

Statistics show that against the sanctioned strength of 25,081 judges, the total number of residential accommodations available is only 19,001.

This matter, in fact, requires immediate attention in terms of safety concerns. Many a time, the transfer takes place in remote locations where there is limited access to various amenities.

(In)voluntary resignation

One such is the case of a female Additional District and Sessions Judge from Madhya Pradesh who was transferred to a naxal-affected location. She ultimately resigned from service.

This case actually shows the intersectionality of stigmatisation and discrimination faced by women judges. In this case, the lady judge was transferred after she alleged sexual harassment against one of the then-sitting judges of the Madhya Pradesh High Court.

One of her allegations was that the superior judge demanded a performance of an “item song” as a part of his 25th wedding anniversary celebrations. The lady judge resigned also for the reason that she was transferred mid-term, that too at a time when her daughter was to sit for the Board examination, against the transfer policy of the Madhya Pradesh High Court.

The sitting judge of the High Court was given a clean chit in 2015 by a three-member inquiry committee constituted by the Rajya Sabha because the charges were “not proved” beyond a reasonable doubt.

While ruling out sexual harassment allegations, the Committee stated that the lady judge became a victim of “wrong impression” and the High Court showed a lack of human face in transferring her mid-term.

The Supreme Court ordered her reinstatement and held that her “voluntary resignation” could not be construed as 'voluntary' because she was left with no choice but to resign.

In cases where a lady judicial officer takes up the courage to file a complaint against another judge in cases of sexual harassment, she faces victimisation and hostility from the administration.

In one such case, a lady judicial officer from Allahabad High Court wrote an open letter to the former CJI Chandrachud claiming she suffered personal humiliation of being denied a fair hearing on her complaint by the Internal Complaints Committee which took six months and "a thousand emails" to initiate an enquiry. She had also approached the Supreme Court, however, her petition was dismissed on grounds that the ICC was seized of the matter.

In light of the Aureliano Fernandes v. State of Goa and Others(2023), the Supreme Court had passed directions to all district judges to upload the information about the ICC constituted on the website of respective District Courts. Despite the attempt at transparency, institutional bias plays a significant role in such cases.

Conclusion

The experiences of women judicial officers illustrate that true equality is not just about entry but about creating an environment where they can thrive without stigma or discrimination. If the judiciary is to serve as the beacon of justice, it must first ensure justice within its ranks by fostering inclusivity, sensitivity, and meaningful opportunities for all. More than numerical equality, what we need is substantive equality.