No one asks why women lawyers decline offers to become judges

On his last working day, former Chief Justice of India SA Bobde sat on a bench that heard an application filed by the Supreme Court Women Lawyers Association seeking adequate representation of women in the higher judiciary..The plea sought directions from the Supreme Court to consider elevating meritorious women lawyers practicing in the apex court and the High Courts as judges..The Court declined to issue notice in the application. As one of the reasons for doing so, the former CJI cited Chief Justices of High Courts who had stated that many women advocates declined judgeship owing to domestic responsibilities. With this statement, the former CJI gave us a window into the patriarchal mindset prevalent even in the highest echelons of the judiciary..The Court’s observations showed why the judiciary needs more female participation. Had a woman judge been on this Bench, she might have recalled her own experiences as a woman judge. She might have taken the former CJI’s line of reasoning further by asking ‘why?’ Why do many women, who are already working as advocates, decline judgeship citing domestic duties?.Unfortunately, most male judges lack that perspective. Thanks to our society’s gender stereotypes, they haven’t had to juggle their careers with familial duties every day..The answer lies in the transferability of a judge’s job location. Transfers dissuade women from joining the higher as well as the lower judiciary. A judge of the Supreme Court, or of the Delhi High Court for that matter, can easily lose sight of this factor. Their job is not transferable out of the country’s capital..It is also easy for most male judges across the country to lose sight of this factor. Most male judges do not have trouble relocating their base to another city every few years. Their families are usually happy and are able to follow them around. Or their wives are okay with staying back and helping their children continue studies in the same location. It is not very often that families extend such support to women. Their husbands are usually working, and their work may not be transferable. Or the husband’s work may not be transferable to the particular location of the woman’s posting. And leaving her child in the care of the husband is usually not an option for the woman..In this case before the Supreme Court, the judges needed to look into these realities. They needed to consider how the judiciary could change itself so that competent women lawyers are able to join it. The judges on the Bench needed to ask another ‘why’..Article 222 of the Constitution is the source of the power to transfer a judge from one High Court to another. But this Article was introduced in the Constitution without any discussion in the Constituent Assembly on its pros and cons. Constitutional experts believe that this was so because the power was intended to be used only in exceptional cases..Chairman of the Constituent Assembly’s Drafting Committee Dr BR Ambedkar did explain the reasons for which transfers of judges may be necessary. The first reason was to strengthen a High Court by 'importing better talent which may not be locally available’. The second was importing a new Chief Justice to a High Court, where ‘a man unaffected by local politics’ may be needed..The Law Commission’s Case Against Transfers.In 1958, the 14th Law Commission of India submitted its report on 'Reform of Judicial Administration'. The Commission had to consider the need for an all-India cadre for High Court judges with free transfers all over India. The argument in favour of the cadre was that it would help in developing unity throughout India, and ensure fewer local connections of the judiciary..But the Commission advised against free transfers of judges. It rejected the argument based on the need for judges to have fewer local connections:“Even person appointed to the High Court Bench from outside [the State] would in the course of a few months form connections in the State to which they are appointed though perhaps not to the same extent. It would…be unjust to treat members... appointed to the High Court judiciary as suspects who need to be moved from place to place to keep them to correct standards.”.The Commission also recognized that transfers disincentivize members of the Bar from joining the Bench:“[T]he difficulty of recruiting leading men from the Bar will be greatly accentuated, if the acceptance of a judgeship involves the probability of transfer from the home State to another State as an ordinary incident of that office. We are... averse to making a recommendation which is likely to affect adversely recruitment of competent persons from the local Bar.”.Incidentally, the men in the Law Commission and the Drafting Committee had only contemplated men as judges in the High Courts. They did not have occasion to think of the particular hardships women would come to face as judges. Or that women would find it difficult to move out not only of their home Sstate, but of their hometown. Another instance showing why all kinds of decision-making need female representation!.The alternative.Thankfully, the Commission also suggested an alternative as the middle ground. It recommended the scheme for an All-India Judicial Service (AIJS). The AIJS, like the IAS, would supply a certain number of members to the higher judiciary of all states. The recruitment to AIJS would be on an all-India basis. This could ensure the inclusion of the outside element in every State’s higher judiciary, without having to move the locally appointed judges from place to place..But the proposal for an AIJS has forever been in limbo. There is a divergence of opinion among the state governments and the High Courts on the subject. Recently, the Union Law Minister said that the government is consulting with the stakeholders. One hopes that the consultation would include women stakeholders too, and that the issue highlighted above receives appropriate attention..What concerns me is that no stakeholder so far seems to have asked even the first of question posed in this article: Why do women lawyers decline offers of judgeship? To me, as disappointing as Justice Bobde’s statement are the reactions from many women lawyers to his statement. Some women counter the statement by saying that many male lawyers also decline judgeship as they make more money in their practices than they could as judges. Then there is the tweet from the Delhi High Court Women Lawyer’s Forum in response to the statement. It reads, "We are ready and more than happy to take this responsibility and serve the institution." These responses either miss the point or fail to address the statement in its entirety..There is no doubt that many women may be ready to shoulder judicial responsibilities. And that they will take up offers of judgeship if and when they are made. But Justice Bobde’s statement raises a question about women who are not so ‘ready’ because of their family duties. Should the system ignore the hurdles faced by these women and move on to others? Only because these women chose not to sacrifice one thing for the other? Or should the system introspect and make necessary reforms? So that no woman has to make such unfair choices and sacrifices..The author is the Founding Partner at Primus Legal and blogs at The Neha Vijayvargiya Blog.