DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW

WOMEN AND LAW

FINAL DRAFT

TOPIC: REPRESENTATION OF WOMEN IN

JUDICIARY

Submitted to- Submitted by-

Dr Samreen Hussain Tulika Gupta

Assistant Professor of Law, Roll no.-180101150

Dr. Ram Manohar Lohiya National law B.A.LL.B. (Hons.) 5th year

University, Lucknow IX Semester

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 ACKNOWLEDGEMENT

“Words can never convey what deeds have done.”

Writing a project is never a single man’s job. I am overwhelmed in all humbleness and
grateful to acknowledge my depth to all those who have helped me to put ideas, well above
the level of simplicity and into something concrete.

I am very thankful to my law professor Dr Samreen Hussain for her valuable help. She was
always there to show the right track when I needed her help. With the help of her valuable
suggestions, guidance and encouragement, I was able to complete this project. I would also
like to thank my friends, who often helped and gave me support at critical junctures during
the making of this project.

I hope you will appreciate the hard work that I have put in this project.

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 TABLE OF CONTENTS

INTRODUCTION......................................................................................................................4

CURRENT STATUS OF WOMEN IN INDIAN JUDICIARY................................................5

IMPORTANCE OF WOMEN IN JUDICIARY........................................................................6

SOME IMPORTANT JUDGMENTS WITH INCLUSIVE BENCH.......................................8

CONCLUSION........................................................................................................................12

REFERENCES.........................................................................................................................13

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 INTRODUCTION

India is a diverse nation with diverse pursuits, customs, traditions and more significantly is a
land of diverse opinions. In this diverse backdrop, when we try to walk on the edges of
gender diversity, we cannot help but notice that largely it is dominated by gender alienation
rather than empowerment. The picture was not always this stark. For instance, as Sen has
argued1, if we look back a few centuries, in the Brihadaranyaka Upanishad, we can read about
the famous intellectual argument put forward by Gargi to Yajnavalkya in the presence of
great pundits, we can also find Maitreyi raising a significant question on ‘the reach of wealth
in the context of the problems and predicaments of human life, in particular what wealth can
or cannot do for us’ to Yajnavalkya, her husband. Women have, throughout the history, been
accorded a tender and peace-loving image which often runs in contradiction when we see
women speakers playing powerful roles like that of the above and even Draupadi in
Mahabharat, who instigates a war.2 With time, this position of women has been side-lined to
the extent that the ‘human argumentative nature’ has been assigned a ‘male gender’ and has
often been exclusively associated with men. Therefore, women legal practitioners often tend
to be at the receiving end for being too argumentative before the bench. The gender
stereotypes3 create an occupational barrier for women lawyers thus, indulging in alienation of
women from the profession. A significant question thus, becomes relevant in modern times
especially while studying the role of the constitutional courts in India - How can we create an
inclusive judiciary with the prevalence of true gender diversity in constitutional courts? More
the judiciary reflects the composition of population more will it aid in conferring legitimacy
to court decisions.4 Public perception of judge gender plays a pivotal role in garnering public
support for a judicial decision as has been argued by the Professor. 5 Therefore, removing
gender stereotypes could possibly be the first step in creating an unbiased public opinion of
judicial decisions.

1
Amartya Sen, The Argumentative Indian 7 (Penguin Books Ltd., London, U.K., 2006).
2
Ibid.
3
UNHCR, “Gender stereotypes and Stereotyping and women’s rights” (Sep. 2014), available at:
www.ohchr.org/documents/issues/women/wrgs/onepagers/gender_stereotyping.pdf (last visited on Nov. 1,
2022).
4
M.P. Fix & G.E. Johnson, “Public Perceptions of gender bias in the decisions of female state court judges” 70
Vanderbilt Law Review, (2017), available at: https://wp0.vanderbilt.edu/lawreview/2017/11/public-perceptions-
ofgender-bias-in-the-decisions-of-female-state-court-judges/ (last visited on Nov. 5, 2022).
5
Ibid.

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More the diversity, more is the empowerment. This empowerment is not about women alone
but for men as well. Diversity does not lie in alienation but in inclusiveness of the genders.
What is this empowerment that we are talking about? To this question, one would be able to
give a cogent answer as the power to make or take calls about one’s life as well as participate
individually and collectively in building the nation. Empowerment is all about being
adequately represented to voice a constructive opinion which would make a difference.
Empowerment of any group of individuals or as an individual lies in the fact of being heard,
of being accepted and of being acknowledged. The larger goal of empowerment is to ensure
that people have better opportunities to live better lives in dignity and security.
Empowerment cannot be achieved without holistic development.

India as a nation has been battling gender biases and prejudices since the time it gained
independence. Indian judiciary does not paint a picture that is any different. As per the recent
reports the chronic problem of gender imbalance in higher judiciary with only 12% of the
total strength being women is indeed startling. The popular discourse in India takes place on
case backlog6, inadequate number of judges7, predominance of caste based or community
based appointments of judges but not on having an inclusive judiciary with an equal gender
representative character. The Law Commission report has categorically defined the different
terms of delay, backlog, arrear and pendency which are often used interchangeably after the
concern was raised in Imtiyaz Ahmad v. State of Uttar Pradesh.8 The Law Commission also
highlighted Justice M.J. Rao Committee Report,9 for the purpose of speedy disposal of cases
on the part of the judges. The committee has examined the current patterns of institution,
disposal and pendency, to address the question of whether more judicial resources are
required (and where they should be targeted) in order to clear the current pendency and
prevent the accumulation of backlog in the future.10

CURRENT STATUS OF WOMEN IN INDIAN JUDICIARY

In high courts, the percentage of permanent women judges is a mere 77 of 634 judges i.e.,
12.14% of total permanent sitting judges, among which Patna High Court and Gauhati High
6
Law Commission of India, “230th Report on Reforms in the Judiciary - Some suggestions” (Aug. 2009)
available at: www.lawcommissionofindia.nic.in/reports/report230.pdf.
7
Law Commission of India, “245th Report on Arrears and Backlog: Creating Additional Judicial
(Wo)manpower” (July, 2014) available at: www.lawcommissionofindia.nic.in/reports/Report245.pdf.
8
AIR 2012 SC 642.
9
Justice M.J. Rao Committee, Vol 2,“Report on Judicial Impact Assessment In India” (2008) available at:
http://doj.gov.in/sites/default/files/judicialimpactassessmentreportvol1%20%201_0.pdf.
10
Ibid.

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court are among the states which do not have even a single permanent judge as of now. While
in the Supreme Court there are three sitting women judges out of 27 in office.

The situation of women lawyers in the country is not any better. Out of 1.7 million advocates
registered, only 15% are women.

Recently, the former Chief Justice of India, NV Ramana J. raised concerns about the lack of
women among High Court judges. He backed 50% representation for women in judiciary.
“Clients’ preference for male advocates, uncomfortable environment within courtrooms, lack
of infrastructure, crowded courtrooms, lack of washrooms for women etc. — all these deter
women from entering the profession,” the CJI said. He made this remark while addressing an
event on the occasion of the International Day of Women Judges (10th March).

United Nations General Assembly Resolution 75/274 designated 10th March the International
Day of Women Judges in 2021. India was among the nations that sponsored the resolution,
which was moved by Qatar. The day aims to recognise the efforts and contributions being
made by women judges. The day also empowers young women and girls who aspire to
become judges and leaders in the community. Combating gender disparity in the judicial
services will also help achieve the Sustainable Development Goals of the United Nations.

IMPORTANCE OF WOMEN IN JUDICIARY

Historically, the legal profession was not considered suitable for women. As time progressed,
so did women and today women enter this profession of choice. However, there are still not
enough women in the judiciary and certainly not enough women in the superior judiciary.
This paradigm must change. In the process of administration of justice and writing
judgments, judges have an important role, as judicial decisions have a wide and deep impact
on social constructs, social order and systematic inequalities that prevail in the system.

When judges interpret and implement the law, their reasons and opinions are a reflection of
their thought process, an insight into their perceptions. These perceptions in the very least
must be representative of both men and women on the bench so as to ensure a fair and
adequate response through judicial decisions. It is important to note that including women in
the judiciary is not simply about ensuring that her perception is relevant to resolving cases
about women. It is much more than that. It is about integrating the gender perspective and
giving equal visibility to women.

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Integration and visibility are important to help build the narrative which includes the gender
perspective. Women in the judiciary bring with them the gender perspective. A different
approach, a different thinking process, a different set of emphasis. All judges - male or
female - decide cases as per the law in an effort to uphold the rule of law. In doing so, they
may reach the same conclusion on a given set of facts, but for different reasons with different
emphasis on the relevant facts. This is because they are influenced by their own life
experiences, environment, and circumstances. This makes the gender perspective relevant
because women judges bring a different set of experiences and influences which then shape
their thinking and is reflected in their reasoning in the judgments. Bringing different
perspectives and diverse reasoning on the bench creates greater public trust and confidence
because it is more reflective of the composition of society. It integrates varied social contexts
and experiences that need to be included, recognized and, most importantly, valued.

Enforcement and recognition of unenumerated rights through PILs can be cited in many
cases, one being Vishaka v. State of Rajasthan,11 where ‘government’s failure to enforce its
own constitutional safeguards prompted the judiciary to intervene in the form of recognition
and enforcement of unenumerated rights.12 Presence of a woman judge in the above
mentioned PIL again strengthens the role of women in the changing role of the higher
judiciary. Therefore, at the core of the question – why there is a need for a more diverse
judiciary - lies the understanding of the fact as to what difference ‘gender’ brings in decision
making. This type of understanding is loosely associated with the nature and characteristics
of gender, which actually exists in the perception of people rather than in the gender itself.
The nature and characteristics of a woman in no way hamper or affects her decision-making
skills as a judge.13 The gender stereotypes of women being soft, extra-sensitive and
vulnerable have not proved to be sensible indicators in identifying women’s contribution in
judiciary.

Another aspect of building on the gender perspective for inclusivity and visibility is the use
of a gender-neutral language, which is a language that is particularly conscious of gendered
words and roles and of the depiction of women. The choice of words, or a lack thereof, is
integral not just in everyday language, but especially in judgments as language can perpetuate

11
AIR 1997 SC 3011.
12
Zachary Holladay, “Public Interest Litigation in India as a Paradigm for Developing Nations” 19 Indiana
Journal of Global Legal Studies 555-573 (2012), available at:
https://www.repository.law.indiana.edu/ijgls/vol19/iss2/9/.
13
Rosemary Hunter, “More than Just a Different Face? Judicial Diversity and Decision-making” 68 Current
Legal Problems 119-141 (2015), available at: https://academic.oup.com/clp/article/68/1/119/337616.

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a bias. For example, the constant use of the pronoun he can perpetuate the belief around the
dominant role of men. Implicit or unconscious gender bias is generally hidden in language
and possibly, without any realization, is entrenched in the system by relying on the same
assumptions and presumptions, particularly those concerning women. However, while
language can perpetuate these stereotypes, it can be equally impactful in bringing about
positive and much needed change, systematic and timely. This is because language impacts
the thought process of people and can be the catalyst of change.

Therefore, gender-neutral language is necessary for inclusiveness and for increasing

sensitivity. It is also needed because it can positively reinforce a more inclusive and
respectful narrative of women and change the imbalance. Ultimately, language is a tool for
communicating different perspectives, which makes way for a more balanced thinking and
more inclusive reasoning. All this is possible when women are well represented on the bench.

SOME IMPORTANT JUDGMENTS WITH INCLUSIVE BENCH

In Vishakha v. State of Rajasthan,14 a writ petition was decided by a full bench comprising of
J.S. Verma, C.J.I., S.V. Manohar and B.N. Kirpal, JJ. The immediate cause of this petition
was a brutal gang rape of a social worker in Rajasthan which was brought up in a class action
with the aim to take up cudgels against sexual harassment of women at workplace through
judicial process in the absence of any suitable legislation. This judgment laid down duties of
the employer, preventive steps, criminal proceedings, disciplinary actions, complaint
mechanism, and awareness mechanism and made the same binding and enforceable in law
until suitable legislation gets enacted. Through its analysis, Supreme Court concluded that
sexual harassment in the workplace is a violation of women’s human rights. However, the
significant factor here is the presence of a woman judge in the 1990’s Supreme Court bench
in a case which had neither any precedent nor any legislation before. Her presence not only
ensured the representative character but also made the bench gender sensitive and more
participatory in nature. It took the government seventeen years to pass the law against sexual
harassment, post the wake of the Delhi gang rape in December, 2012, despite of the laying
down of the Vishakha guidelines by the Supreme Court on the matter in 1997 itself. It can be
well argued in this case that presence of a female judge in deciding this case has contributed
in giving a holistic understanding of the problem and finding a realistic solution to it.
Manohar, J. later on has also stated to rethink the Vishakha guidelines since at the time of
14
AIR 1997 SC 3011.

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framing the guidelines, the judges only focused on dealing with the present cases. However,
in her opinion now the time has come to rethink about giving the legislation retrospective
effect.15

In A Jayachandra v. Aneel Kaur (hereinafter referred to as “A. Jayachandra”),16 the judgment

was delivered by Ruma Pal, Arijit Pasayat and C.K. Thakker, JJ. on December 2, 2002. The
sanctity of marriage as an institution was put to question before the Supreme Court whereby
two highly educated medical practitioners were at loggerheads for seeking divorce on the
ground of mental cruelty. The court categorically laid down that physical violence is not
absolutely essential to constitute cruelty since in mental cruelty collecting hard evidence is
not only difficult but impossible. To constitute mental cruelty, the conduct of the defendant
party needs to be measured reasonably so as to constitute that no person of ordinary prudence
would have tolerated to live with such behaviour. It should be something beyond the ordinary
wear and tear of married life. Conduct has to be considered in the background of several
factors such as social status of parties, their education, physical and mental conditions,
customs and traditions. It must be of the type so as to satisfy the conscience of the court that
the relationship between the parties had deteriorated to such an extent that it is beyond
recovery. A consistent course of conduct inflicting immeasurable mental agony and torture
may well constitute cruelty within the meaning of section 10 of the Hindu Marriage Act,
1955. Mental cruelty may consist of verbal abuses and insults by using filthy and abusive
language leading to constant disturbance of mental peace of the other party. Ruma Pal, J.
through her judgments in A. Jayachandra and Vinita Saxena17 has extensively deliberated
upon the concept of mental cruelty and created a significant understanding of the term
‘cruelty’ in the modern times. In Vinita Saxena it was observed that to establish cruelty, there
must be such willful treatment of the party which caused suffering in body or mind either as
an actual fact or by way of apprehension in such a manner as to render the continued living
together of spouses harmful or injurious having regard to the circumstances of the case. The
word ‘cruelty’ has not been defined anywhere in the Hindu Marriage Act, 1955 because of
which time and again, it has become difficult to give it a precise definition. Ruma Pal, J.
along with A. R. Lakshmanan, J. penned down that what will constitute mental cruelty for
purposes of the said provision, will not depend upon the numerical count of such incidents or

15
K. M. Sheriff, “Need to rethink Vishakha to include incidents from past: Its author Justice Sujata Manohar”
The Indian Express, October 22, 2018, available at: indianexpress.com/article/india/metoo-need-to-rethink-
vishakha-toinclude-incidents-from-past-its-author-justice-manohar-5408334/.
16
AIR 2005 SC 534.
17
Vinita Saxena v. Pankaj Pundit, AIR 2006 SC 1662.

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only on the continuous course of such conduct but will also depend upon the intensity,
gravity and stigmatic impact of it when meted out even once. The deleterious effect of it on
the mental attitude, necessary for maintaining a conducive matrimonial home will also play a
significant role in establishing mental cruelty. Looking into the mental aspect of cruelty,
more than a decade back, when the definition of ‘cruelty’ was itself going through a change,
this case gave an impetus to the growing need of expanding the definition. Presumably, the
possibility of gaining from the insight of a lady judge, the court has aptly amplified the
understanding of ‘cruelty’ under matrimonial disputes.

In Aruna Ramachandra Shanbaug v. Union of India,18 Justice Gyan Sudha Mishra was part of
the bench of the judgment along with Justice Markandeya Katju, which has laid down
guidelines on ‘passive euthanasia’. Although court declined the petitioner’s plea on the
ground of lack of locus standi yet, it laid down guidelines on passive euthanasia. Considering
the low ethical levels prevailing in our society today and the rampant commercialization and
corruption, the court could not rule out the possibility that unscrupulous persons with the help
of some unscrupulous doctors may fabricate material to show that it is a terminal case with no
chance of recovery.

In Mukesh v. State for NCT of Delhi,19 Bhanumati J., observed in her separate concurring
judgment that mere stringent legislations cannot contain the situation; gender sensitization at
the early stages of the formative years of a child should be made mandatory. More than a
physical crime, rape is an exertion of power and demeaning of the entire personality of the
woman as observed in Gurmit Singh.20 Therefore, it is very important to make a child learn to
respect another person irrespective of his/her gender from childhood itself. Her observation
of bringing change in the mindset of the society at large resonates with the larger
psychological view of the society.21 Her observations added a different perspective to the role
of the court while dealing with sensitive cases of offences like rape.

In Indian Young Lawyers’ Association v. The State of Kerala,22 popularly known as the
Sabarimala Temple Entry Case, the Court observed that the right to gender equality to offer
worship to Lord Ayyappa is protected by permitting women of all ages, to visit temples

18
(2011) 2 SCR 869.
19
(2017) 3 SCC 719.
20
State of Punjab v. Gurmit Singh, (1996) 2 SCC 384.
21
G. P. Rao, K. L. Vidya & V. Sriramya, “The Indian “girl” psychology: A perspective” 57 Indian Journal of
Psychiatry (2015), available at:
www.researchgate.net/publication/281517580_The_Indian_girl_psychology_A_perspective.
22
2018 (8) SCJ 609.

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where he has not manifested himself in the form of a ‘Naishtik Brahamachari’, and there is
no similar restrictions in those temples. This judgment is significant from the point of dissent,
that too, coming from the only woman judge on the Bench. The minority opinion rendered by
Justice Indu Malhotra, was not only applauded by the legal fraternity on points of law but
was considered brave too, for going against the popular majority view. Justice Indu
Malhotra’s journey to the Supreme Court is one of its kind. She became the first senior
woman advocate to be directly appointed as a judge to the Supreme Court.

In Joseph Shine v. Union of India,23 Justice Indu Malhotra was also a part of the Supreme
Court Bench that, in a landmark judgment, decriminalized adultery after striking down a
British-era law, section 497 of the Indian Penal Code, terming it as unconstitutional, archaic
and manifestly arbitrary.24 She clearly stated that- “Section 497 fails to consider both men
and women as equally autonomous individuals in society.” If one cannot prosecute against
the other then vice versa should also not be allowed. As far as article 15(3) is concerned, she
reasoned it out on the ground that it perpetuates beneficial legislation for upliftment of
women and children and section 497 IPC, in that light, puts a woman in a disadvantageous
position by not letting her prosecute against her adulterous husband. While answering on the
criminality of adultery, she reasoned out efficaciously that if there is a public element in the
wrong, such as offences against State security, and the like, then criminal sanction is
justifiable- where the victim is not the individual, but the community as a whole.

CONCLUSION

The Indian Constitution has not been silent on the point of maintaining diversity, however,
what has been observed is that only certain aspects of diversity like religious minority, caste
backwardness, and regional representation have been taken into consideration while
preserving the diversity factor in appointment of judges in the higher judiciary. 25 The idea of
having an inclusive judiciary is inbuilt in the Constitution itself. 26 The need of the hour is to
reflect that ideology in all the constitutional offices. Though Indian Constitution does not
make any formal criterion (policy of affirmative action) for maintaining gender diversity in
23
AIR 2018 SC 4898.
24
A.Vaidyanathan,“All About Justice Indu Malhotra, Who Dissented In Sabarimala Verdict” NDTV (2018),
available at: www.ndtv.com/people/all-about-justice-indu-malhotra-who-dissented-in-sabarimala-verdict-
1923894.
25
Abhinav Chandrachud, The Informal Constitution: Unwritten criteria in selecting judges for the Supreme
Court of India (Oxford University Press, New Delhi, 2014).
26
Indian Constitution has promoted the concept of inclusivity for the genders through Preamble, Fundamental
Rights and Directive Principles of State Policy.

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selecting judges yet there exist informal criterions in Supreme Court’s judges’ appointment
practices.27 On appointment of female judges to the apex court, an informal “ladies quota” 28
or “an informal quota system”29 are often applied, which are ‘black holes’ in the selection
‘space’ of higher judiciary since no one gets to know what are the criterions or parameters for
the selection. Mention of a convention can be also found30 that high courts should have at
least one female judge.

The Supreme Court of India is not only the highest dispute resolution body but plays a pivotal
role also in shaping the public policy of the nation. 31 Whenever the court has dealt with the
issues of policies or matter of larger societal ramifications, there has been a doubt casted on
the legitimacy of the intervention by the judiciary. Aspersions were cast on the ground that it
does not have mandate to determine policy issues or it lacks the popular support of the people
which is essential for bringing in reform in the society. In such situations, either the court
should abdicate the responsibility or make the composition representative in order to address
the criticisms.

REFERENCES

 Uday Shankar and Srichetha Chowdhury, ‘Representative Judiciary in India: An

Argument for Gender Diversity in the Appointment of Judges in the Supreme Court’,
200 ILI Law Review Vol II, 2019, available at: https://www.ili.ac.in/pdf/uss.pdf.
 Ayesha Malik, The Importance of Women in the Judiciary to Integrate the Gender
Perspective and Bring Equal Visibility, UNODC, available at:
https://www.unodc.org/dohadeclaration/en/news/2021/152/the-importance-of-women-
in-the-judiciary-to-integrate-the-gender-perspective-and-bring-equal-visibility-.html.
 https://www.thehindu.com/news/national/cji-voices-support-for-50-representation-
for-women-in-judiciary/article36681345.ece

27
A. Ghosh, D. Sanyal, N. Khaitan, & S. Reddy, “Tilting the Scale: Gender Imbalance in the Lower Judiciary”
Vidhi Centre for Legal Policy (2018), available at:
www.static1.squarespace.com/static/551ea026e4b0adba21a8f9df/t/5a818f5a9140b73f5d6d67ff/
1518440304789/180 212_Tilting+the+Scale_Final.pdf.
28
Abhinav Chandrachud, The Informal Constitution: Unwritten criteria in selecting judges for the Supreme
Court of India (Oxford University Press, New Delhi, 2014).
29
Ibid.
30
A. Ghosh, D. Sanyal, N. Khaitan, & S. Reddy, “Tilting the Scale: Gender Imbalance in the Lower Judiciary”
Vidhi Centre for Legal Policy (2018), available at:
www.static1.squarespace.com/static/551ea026e4b0adba21a8f9df/t/5a818f5a9140b73f5d6d67ff/
1518440304789/180 212_Tilting+the+Scale_Final.pdf.
31
Aruna Ramachandra Shanbaug v. Union of India, [2011] 2 SCR 869.

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 https://www.drishtiias.com/daily-updates/daily-news-analysis/representation-of-
women-in-judiciary#:~:text=What%20is%20the%20State%20of,%2C%20only
%2015%25%20are%20women.

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