In the 68 years of its history, the gender imbalance is a problem that has continuously plagued the Supreme Court that remains largely a maledominated space. Its first 67 years saw only six women have served as judges in the institution. The last year has inducted 2 more women as judges, taking the count to a total of 8. This however, forms a minuscule proportion of the sanctioned strength of 31 judges year after year. The institution functioned as an all-boys club in its first 39 years and did not appoint its first woman judge, Fathima Beevi until 1989. Sujata V. Manohar, the second woman judge was appointed after seven years in 1994. The next 24 years have seen this number rise to six, totaling to the minuscule number of 8 women judges having served the institution’s inception in 1950

Why exactly is there a paucity of women judges? Does this affect the way in which judgments on women-centric subjects are passed? The answer is very simple. The Supreme Court has always been a male-dominated arena entry to which women find rare and difficult. Where this plays out is in the way certain cases are dealt with as they invariably fall into the trappings of patriarchy. The controversial Mathura rape case where an all-male bench said that the complainant might have incited the cops to have intercourse with her since she was used to having sex is one such example where a having a woman judge on the bench could have perhaps shaped the country’s anti-rape laws better. Similarly, the fate of Section 377 criminalizing homosexuality has moved through different courtrooms of male judges since the year 2001, when the case was filed. The absence of a women judge was also noticed in the formation of the nine-judge bench that held privacy to be a fundamental right in August 2017. The issue isn’t about having more women or matching numbers. It’s squarely about fair representation. If there are reservations for the SC/ST class of people, why should women remain underrepresented at the highest level of the judiciary? They are as competent and deserving of opportunities as their counterpart male members.

Shortage of women judges apart from having wide social ramifications represents the problem of a skewed gender representation at the judicial level. It raises questions on the legitimacy of the process of judicial appointments that are supposed to be fair, non-discriminatory and inclusive. It is ironic that an institution that operates as a guardian of the principles of equality and justice would fall behind on the home ground. While India has seen numerous rulings on women related issues including the likes of triple talaq, offering permanent commission to women in the Navy, marital, divorce/alimony, adultery, abortion cases – the fact remains that these have lacked a woman’s perspective as there are a negligible number of women in the Supreme Court.

Tracing the history of the prestigious institution takes us to Justice M. Fathima Beevi who was the first woman to serve as a Supreme Court judge. She practiced as an advocate in the Kerala high court for eight years before she was considered for elevation to the Supreme Court. She was known to have a balanced outlook and was known to be well prepared as she served four years at the bench. She was succeeded by Justice Sujata M. Manohar after a gap of 39 years. The fact that it took the institution such a long time to appoint another woman to the bench shows a lack of confidence and a bias that manifested itself into gender imbalance for years to follow.

Bringing with her an illustrious career by having served as the first woman chief justice of the Bombay high court and boasting of a 20-year career as an advocate, Justice Manohar turned the tide around when she was part of the threejudge bench that presided over the issue of sexual harassment at the workplace that gave way to the country’s earliest guidelines on the same, popularly known as the Vishaka guidelines. Apart from her first-hand involvement in the womancentric issue of sexual harassment, she was known to be a keen advocate of taking up causes of public interest during her 5-year stint.

The inclusion of women judges to serve on the bench of the highest judicial institution has since then attracted positive feedback. The system has, however, failed to deliver on keeping with this as an ongoing practice. A disappointing trend in the number of women judges shows that not only the higher judiciary but even the lower judiciary is far away from taking its women seriously. According to a report by Vidhi Centre for Legal Policy, titled “Titling

The scale, gender imbalance in the lower judiciary”, the number of women judges could be pegged at 28% of the total strength as of 2017. The states of Uttar Pradesh, Bihar, Jammu, and Kashmir were seen to be the worst performers in hiring women judges to the lower judiciary. This gender gap, arising in certain states and percolating into the urban and more populous states reflects the bigger problem of gender discrimination at the judiciary. The gender gap is also indicative of the bigger problem of lesser participation and opportunity extended to women in the workforce of the country.

Appointment of strong and fearless women at the Supreme Court the likes of Justice Ruma Pal ensured that issues concerning women were dealt with women who could provide a perspective that honorable male member on the bench could not. In her stint of having served as the long as over 5 years, Justice Pal voiced concerns on the lack of judicial accountability and stressed on women related issues such as cruelty and mental cruelty forming grounds for divorce. She actively slammed the judiciary over the transparency of appointments and refused an extension to a Madras high court judge on grounds of corruption.

It took 4 years for the next woman judge to be appointed, namely Justice Gyan Sudha Mishra who stood out as a fine example of woman expertise. She was commended for her contribution in the case regarding Aruna Shanbaug who was on life support following a sexual assault by carving the distinction between active and passive euthanasia.

Until a few months back, Justice R. Banumathi was the lone woman judge at the Supreme Court. Despite this, there have been instances where she has not been part of benches addressing women-related matters. She was lauded for her separate judgment allowing death sentence in the 2016 Nirbhaya gang rape case where she said that the case came within the category of “rarest of rare” and that if there was a case warranting a death sentence, it was this.

Bias at the underbelly of the institution was on display when Justice Banumathi was not included in the constitution bench that ruled on the constitutional validity of the Muslim practice of triple talaq. Five judges belonging to different faiths were part of the bench that held the practice to beunconstitutional but none of them was a woman. This becomes significant because it was an issue at the heart of which was equality of women, an issue that primarily affects women and yet the institution’s lone woman judge was kept out of it.

Similar was the case where a three-judge bench comprising of male judges, namely, the CJI, Dipak Misra and Justices Chandrachud, A.M. Khanwilkar overruled an order of the Kerala high court annulling the marriage of Shefin Jahan holding that the right to marry a person of his own choice was guaranteed under Article 21 (right to life) of the Constitution. It’s a pity that Justice Banumathi was not considered to hear the matter which focused on the exercise of free will by an adult woman and her right to make choices including the right to marry.

With the historic event of two more women judges Justices Indu Malhotra and Indira Banerjee joining the ranks, it presents fresh hope for the institution to strike a better balance in terms of years of having a tilted gender composition. This is the first time since independence that three women judges will be serving at the apex court the same time. The last time the Supreme Court had representation from more than one woman judge was between the years 2011- 2014 when the tenure of Justices Gyan Sudha Mishra and Ranjana Prakash Desai coincided. In fact, in April 2013, the two sat on an all women bench and together heard cases through the day due to unavailability of former judge Justice Aftab Alam on that particular day.

In terms of a holistic picture of the gender disparity at the display, the situation still looks dim with women judges forming 12% of the total number of judges in the Supreme Court. What has to be considered is that 6 positions out of the sanctioned strength of judges lie vacant and if those were occupied by women judges, it would push their representation from 12% to 29%. The problem of vacancy, therefore, is a stepping stone to pushing for more women in the higher judiciary. Year after year, these posts lie vacant due to the difference of opinion between the executive and judiciary that has always disserved the interests of justice. It takes months and even years for one appointment to come through.

While the break of the glass ceiling in the higher judiciary is a slow process, it has not been an effort in vain. Having 3 women judges in the Supreme Court is a definite gear towards bringing a change. The goal should be to have representation from at least 1 woman judge in a woman-centric case of national importance. If recent events are to go by, the Supreme Court may not be far from adopting this principle going by the inclusion of Justice Indu Malhotra in the constitution bench along with 4 other male judges that is deciding on landmark cases such as constitutional validity of adultery laws, ban on entry of women into Sabarimala temple in Kerala and revisit of the constitutional validity of Section 377. While benches comprising all male judges have given lawfully reasoned and progressive judgments in the past, having a woman judge on board will go a long way in ensuring fair representation and equality.

It’s high time that the judicial appointment mechanism revamps itself and reaches a point where the history of women judges in the Supreme Court does not appear as abysmal as it stands today. Mahatma Gandhi’s wise words – “Be the change you wish to see in the world” is what the highest court needs to echo its tune to in order to ensure that as an institution representing principles of equality and justice it is able to extend the same for its country’s women.