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  • Writer's pictureTWL Desk

The Bigotry in Indian Judiciary

Author : Prerna Tyagi

“I measure the progress of a community by the degree of progress which women have achieved”- The birth giver of constitution of India, Babasaheb Bhim Rao Ambedkar.

From only 2 women judges in the Supreme Court presently to being subdued at workplaces, women are being constantly suppressed by the patriarchal society. The unbiased and independent judiciary has always played the role of a true Guardian of justice. Since independence many a times the judiciary has proactively interpreted and amplified the ambit of legislative provisions in favour of the unprivileged half of the society, i.e., the women of our country. Constitutional framers also empowered the state to make special laws, policies, plans and programmes within a democratic polity for advancement of women in all areas. With this concept of positive discrimination, provisions for women are made with the object of giving them equal representation in the society. But all these are of no significance if women are not able to represent themselves at the highest courts of justice. Even on the lower levels, they are considered incompetent to do certain tasks which the other gender is considered to perform with no trouble.

The retirement of Justice R. Banumathi on 19 July 2020 left India’s Supreme Court with just two women judges of 31, a female representation of less than 6.5%, compared to Parliament’s slight 14%. While Parliament’s poor showing gets a fair measure of media attention, there is virtually none on the more glaring gender gap in the Supreme Court.

In the 70 years since its inception, the Supreme Court has had only eight women judges. In a country where 48% of the population is female, of 245 judges who have made it to India’s highest court, including the current judges, less than 3.3% have been women. No woman has served as the Chief Justice of India. The Union law ministry data shows the high courts of Patna, Manipur, Meghalaya, Telangana, Tripura and Uttarakhand do not have any woman judges. Thirteen high courts share the distinction of not having had a woman Chief Justice (barring present chief justices).

The Indian Supreme Court has delivered remarkable judgments on gender identity, sexual orientation, Sabarimala temple entry and adultery. But the actual progress of the Indian judiciary should be measured by the number of women in high positions. Since Independence, India has had a woman President, Prime Minister, chief ministers, governors but no woman Chief Justice.

It took almost 40 years to have the first woman judge, Justice Fathima Beevi, and 68 years for the Supreme Court to have the first directly appointed woman judge, Justice Indu Malhotra, among six male judges. Despite 2 women judges currently sitting in the Supreme Court, there seems to be no likelihood that we will have the first woman Chief Justice in the near future. There are already five male judges lined up to succeed the present CJI until 2025.

The lack of women’s representation in the judiciary cannot be discussed without addressing the structures of courts. These poor numbers may not be directly attributable to the process only of appointment because such appointment knows no gender. But these numbers should be equated with the numbers at various stages of legal career a person crosses before being appointed as a judge. This begins with enrolment in the law school, enrolment with the State Bar Council as an advocate after graduation, entry into and sustenance in court practice and entry into the district judiciary.

Conversation with several senior members of the bar shows that legal education was never a preference for girl children in the past. Senior advocate Indira Jaising recently talked about a senior male lawyer who referred to her as “that woman” while he referred to other male lawyers as “my learned friend”. If this was the experience of a former Additional Solicitor General, one could imagine how difficult it would be for a first-generation woman lawyer.

The problem of discrimination is not limited to the gender-insensitive design of courts but extends to all aspects of the judicial system—from everyday examples of gender bias that women lawyers and judges encounter to workplace harassment. This is an undeniable reflection of gender roles the society has for long, given men and women.

Why Gender-Diverse bench matters

A gender diverse bench reflects a bias-free judiciary. Many pragmatic studies show that having even one woman on a three-judge panel has an effect on the entire panel’s decision-making in gender discrimination cases. For example, had a woman judge been part of the Supreme Court’s three-member bench that decided on the misuse of dowry prohibition law, she would have brought a better view to the case so that even the misuse of such protective laws wouldn’t have been generalised by the court. Having women judges encourage more women to approach the system of law to report violence and crimes happening to them on a daily basis.

It is apparent that not only do we need more women on the bench; we need more women to be part of the decision-making process of appointment of judges. To achieve this, we need to have women who will stay on the bench till they become members of the collegiums (also CJIs), alongside women who will not.

Representation Is Necessary but Not Sufficient

There is no denying that progressive male judges too can pronounce pro-women judgements. Likewise, the isolated instances of some women judges championing gender justice, highlighted above, do not mean that all women judges are progressive or feminist. There is no empirical evidence to suggest that women judges are likely to pronounce gender-sensitive judgements. On the contrary, women judges may be more uncommunicative to being openly feminist in their rulings. But what is required is recognition in the form of representation.

Solution to gender-inequality

To antidote this, we need younger (and more) women to be elevated, especially to the Supreme Court, so that they stay in this system long enough to reach a position where they have a substantial voice in the decision-making process, which is predominantly within the male domain today. Elevation of younger women will encourage more women to practise law and be part of the subordinate judiciary, for they will have more to gain from the system.

Similarly, the state should also amend their Higher/Superior Judicial Service recruitment rules so as to enable direct recruitment of young advocates as district judges upon completing seven years of practice.

Though advocates with not less than seven years of law practice are eligible for recruitment as district judges under Article 233 the Constitution of India, several states have recently fixed a much higher ‘minimum age’ for such recruitment. Removing the minimum age for recruitment as district judge can help young female advocates from opting out of practice in favour of other services or corporate jobs. Governments should also rationalise salary and allowances of lower judiciary.

Judicial and legislative wings of the state should join hands to study the sex ratio in court practice and Judiciary continuously and take effective steps to improve the same on a ‘time to time’ basis.

Supreme Court Women Lawyers Association

SCWLA expressing their concerns regarding the participation of women in the delivery of justice and their representation in the higher judicial institutions, had proposed certain suggestions in order to ensure that the Indian Judiciary was committed to the advancement of meritorious women and the ideal of gender equality. Emphasizing the precept of formal equality guaranteed by Articles 14 and 15 of the Constitution, the SCWLA had brought focus on the need for adequate representation of women, particularly with an aim to address the lack of rights as well as the increased rates of offences against women, the nature of these offences being such that required more women at the bench in order to advance the cause of gender justice within the Indian social context.

I am a true fan of gender equality in all spheres of work and life but with much of a feminist tone, I would like to conclude my article by quoting Maya Angelou:

“How important it is for us to recognize and celebrate our heroes, it is equally important to recognise the she-roes!”

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