Women in the Judiciary: Challenging Stereotypes and Shaping Justice

Examining the Impact and Influence of Women in India’s Highest Courts

I HAVE BEEN motivated to write this article by the judgments and speeches of Justice BV Nagarathna, Judge of the Indian Supreme Court, who is in line to become the Chief Justice of India in 2027. I greatly admire her, particularly because she has dissented from the majority judgments more than three times since her elevation to the Supreme Court (and, in my opinion, correctly).

I was particularly impressed by her speech explaining why she dissented from the majority in Vivek Narain Sharma vs Union of India (the demonetisation case).

I agree with her views about the role of Governors of States under the Constitution and her criticism of the way some Governors have been behaving in India.

I was also impressed by her views on the abortion debate.

Her perspectives on women’s equality are noteworthy, as is her decision regarding hate speech.

However, I hasten to add that I admire her not because she is a woman but because she is a great Judge.

While I am pleased that more women are entering the legal profession as lawyers, I do not support the notion of increasing the representation of women in the judiciary as a means of women’s empowerment. This may sound contradictory, so allow me to explain.

In earlier times, a legal career was considered unsuitable for women, and there were very few women lawyers.

The notion that women are unfit for the legal profession is a myth.

In fact, for a long time in most courts in India, under the relevant rules, no woman was permitted to be enrolled as a lawyer, as a woman was not regarded as a ‘person’.

I remember when I started law practice in the Allahabad High Court in 1971, there was only one woman lawyer who would come regularly to the High Court. From time to time, some other young woman lawyer would appear in court, but she would disappear after a few months.

When we inquired about her absence, we were told that she had gotten married. In other words, she had entered the profession merely to pass the time before marriage and was not serious about it.

Today, in almost all courts in India, from the district courts right up to the Supreme Court, about 8-9% of lawyers are women. This is, of course, a far cry from the ideal of 50%, but it is a significant advancement from almost 0%.

The notion that women are unfit for the legal profession is a myth. The work of a lawyer is mental, not physical. I.Q. (Intelligence Quotient) tests in modern psychology have proven that an average woman’s I.Q. is the same as that of an average man. Hence, there is no reason why a woman cannot be a good lawyer.

However, when it comes to appointments as Judges, in my opinion, the sole criterion should be the merit of the person being considered, and his/her sex is wholly irrelevant. After all, lawyers and litigants are only interested in high-quality justice, not the gender of the person delivering such justice.

If, out of all the persons being considered (based on their reputation and knowledge of the law), all are found to be men, then 100% of the judges in that court should be men. Conversely, if all are found to be women, then 100% should be women. I am completely against applying the Women’s Reservation Bill, which reserves one-third of the seats in legislatures for women, to the judiciary.

Justice Nagarathna was selected as a Judge in the Karnataka High Court and later in the Supreme Court not because she is a woman but because of her profound legal acumen (as is evident from her judgments) and her high level of integrity.

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