By: Hani Dipti* |
INTRODUCTION
According to Attorney General K K Venugopal “Improving the representation of women in the judiciary could… go a long way towards a more balanced and empathetic approach in cases involving sexual violence”. The representation of women across different courts and judicial bodies is abysmally low, in India. In the 70 years since its inception, the Supreme Court has had only eight women judges in a country where half of its population is female. No woman has served as the Chief Justice of India (CJI). Men have traditionally dominated the legal profession in India. Women’s entry could be possible only after long and protracted legal battles, the numbers have increased but not sufficient. The fundamental concept of sexism and mansplaining in this field shows itself unmistakably and secretively. Focusing on the requirement for more prominent sex sensitization among individuals from the judiciary, the most serious issue is gender discrimination, including sexual harassment, not just female judges but also other women. In the landmark judgement of Vishaka & Ors v State of Rajasthan delivered by Justice Sujata Manohar shows how women understand the plight of other women the best. In fact, the apprehension of such harassment probably going to be a significant reason for women opting out of the profession themselves. The article would focus on the issue pertaining to the representation of women in the judiciary. The article gives a brief summary of the status of women till date in the Supreme Court, also status in different High Courts of the country. It also talks about the need for female representation in the judiciary. In doing so, this article draws a comparative analysis of different jurisdictions around the world, a case study upon the issue and at the end will suggest few recommendations.
FEMALE JUDGES TILL DATE IN SUPREME COURT
In a country where 48% of its population is female and that the symbol of justice in the courts is the sculpture of a blindfolded lady holding balance, the unfortunate irony is that we have less than 12% women judges in the High Courts out of the 245 judges appointed in the Supreme Court just eight have been women between the years 1950-2020. It took the court 39 years to get its first female judge, Fathima Beevi, J, who was appointed in 1989. It took an additional seven years for the appointment of the second female judge, Sujata V. Manohar J. In 1994. In a long time since, just four more women judges have been appointed to the Supreme Court. Justice Ruma Pal followed Justice Manohar. After her retirement, it took another four years to appoint Justice Gyan Sudha Misra. Her tenure in the Apex Court was from April 30, 2010, to April 27, 2014. During her spell, she was joined by Justice Ranjana Prakash Desai, who served between September 13, 2011, and October 29, 2014. After her retirement, Justice Banumathi was the solitary woman judge in the Apex Court till the appointment of Justice Malhotra on April 27, 2018.The retirement of Justice R. Banumathi on July 19, 2020. Left Indian Supreme Court with only two female judges out of 34, namely Justice Indu Malhotra and Justice Indira Banerjee.
IMPORTANCE OF FEMALE REPRESENTATION IN INDIAN JUDICIARY
The Indian judiciary would require portrayal of judges, not just different gender identities, but also women from diverse communities. A gender-diverse bench reflects a bias-free judiciary. For context, there have been no Dalit or Adivasi women judges in the Supreme Court. Women at all levels of the judiciary are critical for handling certain issues that may have very wide social and political ramifications. First, inadequate representation could aggravate biases within the courts; second, the lack of women representatives in courts give rise to questions about the courts’ legitimacy as representatives of the societies they serve; and third, the presence of women judges signals equality of opportunity for girls within the bar and an appointment process that’s fair and non-discriminatory and enables a level playing field. Increased judicial diversity enriches and strengthens the ability of judicial reasoning to encompass and respond to varied social contexts and experiences. Thus, greater visibility, of women in the legal system can increase the willingness of women to seek justice and enforce their rights through the courts.
THE OBSERVATION REGARDING HIGH COURTS
The information given below was provided by the Law Minister of India, Ravi Shankar Prasad in a written reply to a question raised in the Lok Sabha. Parliament asked the government about the number of women judges functioning currently in High courts, Supreme Court, Tribunals and Subordinate Judiciary. In his written reply, Union Minister Prasad gave a detailed account of women judges in the Supreme Court and High Courts of various states. There are “78 female judges present in high courts of India out of (1079) .11 Women judges in Punjab and Haryana high court, 9 Women judges in Madras High Court, 8 Women judges in Delhi and Bombay High Court and the High Court of Patna, Manipur, Meghalaya, Telangana, Tripura, and Uttarakhand do not have any female judge. And there is just one-woman judge in six other High Courts in the country. The number of women judges in the Supreme Court (out of 34) is 2. There are only 17 women senior counsel in the Supreme Court, as opposed to 403 men.” The first women additional solicitor general was appointed after 62 years of Independence.
COMPARATIVE ANALYSIS
Last year the appointment of Tengku Maimun Tuan Mat as the first women chief justice of Malaysia, a Muslim-majority Southeast Asian country, is a ray of hope for women across the world. In the last 10 years, the first woman chief justice has been appointed in a number of countries, including the Philippines (2012), Australia (2017), the UK (2017) and Malaysia (2019), while Canada and New Zealand have appointed a female Chief Justice much earlier in 1999. In fact since ages the status and situation of women in India is a controversial subject, as it mirrors the contradictory and the paradoxical nature of the Indian society. Patriarchal set up of the society is one of the biggest hurdles in the way of women empowerment as it limits them to take part in social and economic and also overindulgence in the domestic responsibilities, it also included women in the judiciary. This can also be seen as the biggest reason behind less participation of women in litigation and judiciary. In fact, its been 70 years since the inception and India has not had a female Chief Justice till date.
CASE STUDY
These lower numbers of females straightforwardly may not owe to the process just of appointment. However, these numbers should be likened with the numbers at different phases of legal career a person crosses before being appointed as a judge. This starts with enrollment in the graduate school, enlistment with the State Bar Council as a lawyer after graduation, entry into and sustenance in court practices.
The numbers at district judiciary are quite positive with respect to female judges, because of recruitment through entrance examination in comparison to the higher judiciary which has collegium system which is more misty than transparent and thus more likely to reflect bias, another factor namely the reservation policy of different states for women judges in district judiciary which is missing in high courts and supreme courts also plays a significant role.
Casual sexism is a running subject across various levels of the judiciary. The problem of discrimination is not just the gender-insensitive design of courts but extends to all aspects of the judicial system—from day to day examples of gender bias that female lawyers and judges encounter to sexual harassment at the workplace. The patriarchal mentality is also a concerning issue as has been highlighted by--Justice Leila Seth, former Chief Justice of the Himachal Pradesh High Court and the first woman to become the Chief Justice of a state High Court, in a 2014 interview with The Hindu. The experience of women judges demonstrates the same pattern. “In most cases, male lawyers or judges especially in upper Himachal had a feudal mentality. They were not used to a woman sitting on their head.”
“The litigation workspace is very different from that of law firms and companies, many switched from a career in litigation to become a corporate lawyer”. A significant misfortune in the representation of the female is seen because of the requirement that to be appointed as a district judge, lawyers need to have seven years of continuous legal practice. Somewhat, the ‘family structure’ of the Indian society is also a contributing factor as several women are forced to give up their profession for marriage and kids, thus fail to meet the prerequisite of continuous practice to be eligible for a position as a District Judge. Leads women to shift their career from the judiciary to some other. Even the senior practising lawyers also prefer male lawyers to work with them because male lawyers are not bound to these social norms. All these elements add to the lower number of females in litigation and unavoidably to the lower no. in the judiciary.
CONCLUSION
The article tried to highlight the main reason for the inadequate representation of women in the judiciary.
The Supreme Court women lawyer association (SCWLA) has written to the Chief Justice of India, Justice S.A.Bobde through heeded suggestions by the Attorney General, KK Venugopal: to urgently consider elevating experienced women lawyers from the Supreme Court to the high court as judges, as a measure to increase the number of women judges. Which he opined could help in correcting the non-empathetic approach of judges in cases of sexual violence. Besides, it should also “ensure greater representation of women at all levels of the judiciary, including the Supreme Court”. The goal must be to achieve at least 50% representation of women in all leadership positions. The Supreme Court should have some kind of mechanism where women of equal merit should be given preference.
Gender-sensitization training should be part of the educational curriculum and training not only for the society but also for lawyers and judges. Mechanisms such as maternity benefit and reservation policy would prevent dropouts and it will be a welcoming respite. Also, affirmative action at all levels of the judiciary could increase female representation. Media can also play in countering these attitudes and assumptions, raising the visibility of women within the judiciary as positive role models. Thus, higher numbers and greater visibility of women judges can increase the willingness of women to seek justice and enforce their rights through the courts.
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* The author is a student at Chanakya National Law University, Patna.
Image Source: https://www.shethepeople.tv/news/attorney-general-kk-venugopal-backs-increased-women-judges-female-cji-sexual-violence-cases/