A Gender Quota to Break Glass Ceiling in Judiciary

This Article is Authored by Team FairLex, drawing inspiration from the Editorial piece written by Senior Advocate Ms. Jayna Kothari on The Indian Express.

Lawyers recently witnessed the appointment of Justice V Mohana, only the second woman from the Bar to be appointed directly to the Supreme Court. The battle for women in India to reach the higher echelons in the legal profession has been anything but easy. For women lawyers to become judges of the Supreme Court of India is a glass ceiling that has not been shattered yet.

The Court has appointed nine male judges directly from the Bar. They all had long tenures, with Justice S M Sikri and Justice U U Lalit becoming chief justices, and current appointees Justice P S Narasimha and Justice KV Viswanathan also due to become chief justices. In contrast, Justice Indu Malhotra, who was the first woman lawyer directly appointed to the Supreme Court in 2018, had a tenure of less than three years, due to which she did not even become part of the Collegium.

Jurisdictions the world over are bringing structural constitutional reforms to ensure gender equality in their highest courts. In 2014, Belgium passed an amendment modifying Article 34(5) of the Special Act of 6 January 1989 concerning its constitutional court. This amendment introduced a gender quota mandating that at least one-third of the 12 judges must belong to each sex. Till the court reached the composition of one-third women judges, it was mandated that after every two male appointees, the third appointment would have to be of a woman. The Belgian constitutional court also has linguistic and professional quotas for judges.

In South Africa, Section 174 (2) of the constitution mandates that the judiciary must reflect the country's racial and gender composition. Currently, six of the South African constitutional court's 11 judges are women, making it one of the first women-majority constitutional courts anywhere in the world, and it has a woman chief justice.

Quotas for representation are not new. Even in our Supreme Court, appointments of judges are made keeping in mind the representation from different high courts. All the recent appointments of male judges were made based on such representation. Then why not a quota to ensure 33.3 per cent gender representation?.

Even with the appointment of Justice Mohana, the percentage of women in our Supreme Court is a woeful 5.4 per cent, with only two women judges out of 37. Meanwhile, the proportion of women judges in the most progressive supreme courts is moving towards 50 per cent and ensuring that at least 33.3 per cent are women. Specifically, 54.5 per cent of the judges of South Africa's constitutional court are women, as are 50 per cent of the judges in Canada, Belgium, and Germany's top courts. The figure is 44.4 per cent for the US, 42.85 for Australia and 33.33 per cent for France. Meanwhile, Singapore falls below the 33 per cent mark with around 24 per cent of its SC judges being women, and Nepal and the UK fare even worse at roughly 17 per cent each.

Measures have to be taken for equal representation of women in India's Supreme Court. This needs the targeted inclusion of women from the Bar, from minority faiths, and from SC/ST and OBC communities. Ideally, an amendment to Articles 124 and 217 of the Constitution would be required to direct that appointments of judges to the SC and HCs should reflect the gender and caste composition of the country.

Till this is done, the SC needs to introduce a stated written policy to have 33.3 per cent women on the Court, which will direct targeted appointments. We can adopt the easy strategy used in Belgium, that after every two appointments of male judges in the Court, the next appointment must be of a woman till we reach 33.3 per cent. While we take pride in Justice Mohana's appointment, we have to work towards getting an equal number of women judges on the Supreme Court of our country and build a road map to get there.

The views are personal.