Judicial encroachment
Image source - https://bit.ly/3qmlbO2

This article has been written by Gaurav Agrawal and Durgeshwari Paliwal pursuing BA.LLB from Institute of Law Nirma University, Ahmedabad

Introduction

To call women the weaker sex is libel; it is man’s injustice to women. If by strength is meant moral power, then women are immeasurably man’s superior.

                                            – Mahatma Gandhi

The move by the Supreme Court collegium to appoint nine judges including three women judges has been laudatory. With this move, the working strength of Apex Court rises from 24 judges to 33 judges out of the sanctioned strength of 34 judges with one vacancy remaining. The three women judges elevated to the Apex Court are Justice Hima Kohli (Chief Justice, Telangana High Court), Justice B.V Nagarathna (Judge, Karnataka High Court) & Justice Bela M. Trivedi (Judge, Gujarat High Court). There is a glimmer of hope for India to see its first Woman Chief Justice of India.

As per the seniority, Justice Nagarathna is in line to become the first women Chief Justice of India in September 2027. However, Justice Vikram Nath (Chief Justice, Gujarat High Court) who is also elevated to the Apex Court is also in line to become Chief Justice of India in February 2021 and he would be succeeded by Justice Nagarathna who would have a tenure of over a month to head the judiciary. It is still unclear if the current recruitment procedure of judges takes gender diversity into account. A single occurrence of multiple women judges being nominated for judicial positions does not necessarily imply that gender is now a factor in judicial selections. It is only the collegium’s final conclusion and not the parameters of appointment that are known to the public.

The appointment of women is made nearly after three years as it was in 2018 when Justice Indira Banerjee was elevated to the Apex Court. After the retirement of Justice Indu Malhotra in March 2021, Mrs Justice Banerjee was the lone women judge in the Apex Court. Justice Indu Malhotra during her farewell ceremony quoted that “Women should not be taken as a mere token.” The move must not be over-exaggerated as it is paying mere lip service to what has been deserved by women. Since the inception of the Supreme Court in 1950, only eight women judges had been elevated to the Supreme Court. It was only in 1989, Justice Fathima Beevi (Judge, Kerala High Court) became the first woman judge to be elevated to the Apex Court. This raises some serious questions as to why it took 40 years for the Apex Court to get its first women to judge, why is it that only eight women judges had been appointed to the Apex Court since its inception, why women had not been given equal stand in the Indian Judiciary & legal profession as a whole, why there is no quota for women in the Indian Judiciary.

It is apparent that the legal profession has always been dominated by males since time immemorial. History is itself evidence that the inclusion of women in the Indian legal profession wasn’t an easy achievement for them in such a patriarchal structure of Indian society. It was Cornelia Sorabji who opened the gateway for Indian women to join the legal profession. In the present era, there are so many young women practising and joining this noble profession but even today the bounds of patriarchy have held them from getting equal and fair representation. Women have an equal and significant role to play in the adjudication of justice and for the transformation of the legal profession. So, they must be given equal opportunities as their male counterparts to show their legal aptitude and skills.

But as opposed to this, they face discrimination and challenges in various forms which hinder them to reach higher levels in the profession. Gender biases are one of the major forms of discrimination that is deeply rooted in our Indian legal culture. According to India Justice Report 2019, Women account for 28% in the lower judiciary, but this falls to 12% at the High Court level. In addition to this, data collated from CLAT 2015 results show that only 45.4% of national law school aspirants taking CLAT in 2015 were women.

However, the situation is quite better now compared to a few decades ago as there are so many women law aspirants entering law colleges and universities and also there are many young women practising advocates in the lower courts but as we move to higher courts the situation for women is still grim. From 1950 to 2020, there were 247 judges in the Apex Court out of which only eight were women and besides this, out of sanctioned strength of 1098 High Court judges, 829 judges are permanent and the remaining 269 sanctioned for additional judges. Out of these all, at present, there are only 78 women judges in these different High Courts, with 13 in the Madras High Court, eight in the Bombay High Court, seven in the Punjab and Haryana High Court, six each in the Delhi and Karnataka High Court and five each in the Gujarat and Kerala High Court.

Going by the available figures, women account for 7% of judges in 25 High Courts. It is not that women are not competent or meritorious or they have a lack of legal expertise, it is the patriarchal mindsets and the prevalent gender biases which are stopping women to reach higher levels. According to senior advocate Pinky Anand, “Women in litigation have it harder as they have to face clients, lawyers and judges, most of whom are male, on a daily basis. In a way, they have to confront gender bias at several levels. If a woman raises her voice to make a point, she is discerned to be cantankerous, not assertive. At times, this perception overshadows her merit and results in her being labelled aggressive.”

Besides this, women working as litigators have trade-offs between the management of their household and management of their professional life. The Maternity Benefit Act, 1961 (No. 53 Of 1961) does not apply to courts because of which women don’t have a standard 12 weeks maternity leave and also given the cumbersome structure of legal practice, leaving the place of work haunts them as when they return to work, they have to face mocking and criticizing remarks. Moreover, sexual harassment of women lawyers is also not uncommon in the court premises. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 fails to take into account courts under the aegis of the term “workplaces” and besides this when it comes to female advocates there is no employer-employee relationship in the courts. These kinds of lacunae in the legislation that are enacted for protecting women fail to secure the interest of women working in the legal domain.

However, in 2013 the Apex Court constituted the “Gender Sensitization and Internal Complaints Committee (GSICC)” under Hon’ble Justice Ranjana Prakash Desai, Judge, Supreme Court of India as Chairperson along with nine other judicial officers as members for the redressal of sexual harassment at Supreme Court of India precincts. Contrary to this, most High Courts do not even have an internal committee to redress complaints of sexual harassment of women in the court premises. Even if some of them have a system to look after such complaints, the systems are not functioning effectively.

In addition to this, a survey conducted by an independent legal think tank, Vidhi Centre for Legal Policy revealed the pathetic conditions of toilets in the court complexes. In a report on “Building Better Courts” which presents and analyses the gaps in the courts’ infrastructure, it has said that 15 per cent of the 16,000 court complexes did not have washrooms for women. At a time, when India is discussing so much about hygiene and sanitation facilities for women in rural areas and villages, sanitation facilities for women in court premises are a contrast.

new legal draft

Besides all these challenges, the interference of politics in judicial appointments cannot be ignored. Also, whenever any senior women lawyer is recommended by the collegium, the High Court Bar Associations go on strike for the mere reason that the concerned women lawyer didn’t practice in their respective High Courts. Such hindrances serve as a deadlock for women to reach higher levels in the profession.

There is a famous saying that “Injustice anywhere is a threat to justice everywhere.” This phrase can be aptly applied to the subject of our discussion. Injustice to women in the legal profession breeds injustice to all the aggrieved women of the country who knock on the doors of courts for justice. No one can understand a woman better than any other woman. It usually happens in our Indian courts that pleadings made by a female lawyer against her male counterpart get less attention if the presided judge is a male judge which is clear gender-based discrimination.

Why is it that women have not yet been given equal standing in the Indian Judiciary?

Representation of women in Higher Judiciary: “Suppose I tell you that ‘there is a nurse coming’ and if a man arrives instead of a woman, you will still keep looking,” said Justice Prabha Sridevan, a retired judge of Madras High Court.

The statement was made with reference to the inbuilt gender stereotype present in society, which makes it harder for a woman to sustain a position dominated by a man and vice versa. The legal profession is considered one of the elite professions meant for men, especially when it comes to the judiciary. Legal education was impenetrable for women in the past due to various societal reasons, yet few women who entered into it faced several difficulties. Thus, the Judicial appointments resulted in male supremacy. However, now with equal access to education, the number of women opting for the legal profession is on a rise. There are meritorious and eligible women that deserve elevation to the higher judiciary.

The ubiquitous diversity factor is prevalent in higher Judiciary in India, this raises questions on “why not enough women in the judiciary at higher levels?”. There is no dearth of women candidates but these women are not considered for the said position by the collegium. Even if the collegium considers them, the male supremacy in the bar association creates the deadlock. “Judiciary does not take cognizance of women representation”, said Mahalakshmi Pavani, senior advocate, Supreme court of India. They expressed the struggle women face to enter the higher judiciary.

“I guess lack of faith and belief in the abilities of women is still rooted in society and in the male psyche and we prefer to have their token presence, especially in the higher judiciary,  for the sake of symbol rather than their equal participation,” said justice Gyan Sudha Misra in an interview.  Quoting J. Gyan Sudha, I wish to draw your attention to the discrimination faced by women. Even after securing the higher position, they are subjected to ignorance irrespective of their ability to outperform. This shows the appointment of women is not enough unless we keep faith in them and ensure equal participation.

The determining steps were recently taken by the Apex Court to overcome the under-representation of women. It would be the first time we will be having 4 women Judges in Apex Court. We need to realize that the presence of women Justices on courts is a constitutional good as it helps promote new types of creativity and fosters social and juridical/constitutional plurality. The Supreme court of land must instil gender diversity in higher judicial appointments, for effective functioning.

Landmark judgements that realised equal representation of women

Bebb Vs. Law Society[1914]  paved the way for women to enter into the legal profession, it was for the first time that women fought for their rights to pursue a career of choice. The four brave women challenged the unsuccessful legal action to appear in the examination to become solicitors, they argued that ‘women’ were ‘persons’ within the meaning of the Solicitor’s Act 1843.

M/s PLR Projects Pvt Ltd v. Mahanadi Coalfields Ltd demanded steps to achieve a gender-balanced judiciary. The Supreme court Women Lawyers Association moved to the top court, seeking fair representation of women in the higher judiciary. They highlighted the abysmally low percentage of women in constitutional courts. They were of the view that parity of sexes in every institution must be the goal of a modern progressive society. And if the association accepts the suggestions, it would pave the way for meritorious women practising in SC to be elevated to the High Court in Judicial positions.

Promising statements were made in both the above-mentioned cases but the result was not to the point. In Bebb Vs. Law Society gender neutral definition was included in clauses of Solicitors Act as against biased one, But the demands were quashed. Similarly, in M/s PLR Projects Pvt Ltd v. Mahanadi Coalfields Ltd, the bench refused to pass any order for ensuring any affirmative action for fulfilment of the demand.

Recommendations

Gender-neutral parenting 

The first and foremost thing required is to change the patriarchal mindsets of Indian society. Until and unless we unlearn the stereotypes and change the mindsets, gender discrimination against women will be inevitable. It is thus essential to promote gender-neutral parenting so that future generations free themselves from the bonds of patriarchy.

Overhauling the judicial selection procedure 

There is a dire need for the reformation of the judicial selection procedure and ensure fair representation of women in the Indian Judiciary. A more diverse judiciary would increase public confidence and instil greater support from its citizens. Increasing the number of women and ethnic minorities in the judicial system would also encourage people from different groups to aspire to become judges.

Reservation quota for women in the Indian Judiciary 

There must be a minimum 33% reservation quota for women in the judiciary and this quota must be followed strictly as it would ensure equal representation of women & would also provide a fair opportunity for them to reach higher levels in the profession.

Conclusion

It is high time for the Indian judiciary to free themselves from the bonds of patriarchal notions and give women the positions in the legal domain they actually deserve. Aiming for gender parity in the courts is a vital aim, and a favourable attitude towards this goal, if not complete devotion, would go a long way towards women’s empowerment in India.

References

  • Mishra, Saurabh Kumar. “Women in Indian Courts of Law: A Study of Women Legal Professionals in the District Court of Lucknow, Uttar Pradesh, India.” E-Cadernos CES, no. 24, Dec. 2015. journals.openedition.org, https://doi.org/10.4000/eces.1976.
  • Ganz, Kian. “Fewer Women Make It to Ranks of CLAT Toppers.” Mint, 16 June 2015, https://www.livemint.com/Politics/5DaJAy52ZXZouIThDTYK3I/Fewer-women-make-it-to-ranks-of-CLAT-toppers.html.
  • NETWORK, LIVELAW NEWS. President Notifies Appointment of Nine Supreme Court Judges Including 3 Women. 26 Aug. 2021, https://www.livelaw.in/top-stories/president-notifies-appointment-of-nine-supreme-court-judges-including-3-women-180323.
  • https://www.galgotiasuniversity.edu.in/pdfs/7-Gender-biased-battleground-or-Smooth-pathway-Challenges-for-Women-Legal-Professionals-in-21st-Century-India-Prashna-Samaddar.pdf

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

LEAVE A REPLY

Please enter your comment!
Please enter your name here