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Judges

Gender Gap In Judiciary

by Avani Bansal 08/12/2024

written by Avani Bansal

By Avani Bansal & Radhika Ghosh

Introduction: An Intriguing Conversation

I was speaking to a colleague who trains judges. Reading one of my earlier pieces on the case for representative judiciary in India, she narrated to me an incident. She said all the judges of the Supreme Court had come for training and one could see that the two female judges were more or less by their own self. So even if a woman becomes a Supreme Court judge, should we assume that she will be treated alike and at par with male judges? She didn’t think so, having observed and worked closely with judges for a long time. But she probed me deeper – “why do you think that is the case? Why do most male judges have such a parochial view towards women judges?” While I was still thinking, she said – “One of the reasons could be that the wives of most of the judges, while educated they may be, do not work professionally. So judges are still accustomed to see women in a particular light.”

Now, I had never thought about the gender gap in Judiciary in this light. While we look at the statistics of the dismal number of female judges in India at subordinate judiciary level, High Courts and Supreme Court, we rarely investigate into how the subjective worldview of our own judges with a limited role for women in it, has a deep impact on promoting, and encouraging more women to join judiciary. While many judgements in India reveal the judges’ own view on the role of women, there is no basis to assume that the same male dominated judiciary will be encouraging of more women to sit next to them as colleagues.

Let’s Look At The Numbers

The Supreme Court was established in October 1935 and functioned as India’s federal court until it assumed its present form in January 1950. The initial strength of the judges was only eight — Chief Justice and seven puisne judges. As the number of cases increased, the number of judges also went up. Today, there are a total of 31 judges, including the Chief Justice of India. Since 1950, India’s Supreme Court has had 46 Chief Justices and 167 other judges.

There have been a total of eleven women judges in the Apex Court ever. Three of them sworn into the Supreme Court (SC) of India on Tuesday, August 31 2021. So along with J. Indira Banerjee there are now a total of four women judges in the Supreme Court who are currently serving. This constitutes to 11% of the strength of total Judges in Supreme Court.

In 17 states, between 2007 and 2017, 36.45% of judges and magistrates were women, researchers with the Judicial Reforms Initiative at Vidhi Centre for Legal Policy, a think tank, wrote in January 2020 in the Economic and Political Weekly (EPW). In comparison, 11.75% women joined as district judges through direct recruitment over the same period, according to data from 13 states.

The chart shows the serving women judges (in red), retired women judges (in lighter shade of red), serving men judges/Chief Justices (in grey) and retired men judges/Chief Justices (in light red) of the SC according to their year of appointment as of August 31. Only 11 of the 256 judges (4.2%) who have served/ are serving at the apex court were/are women. Four out of the 33 judges (12%) currently serving are women.

The share of women judges in High Courts was no better. The chart depicts the share of women among all HC judges as of August 1, 2021. Overall, women judges account for only 11% of HC judges. In five HCs, no woman served as a judge, while in six others, their share was less than 10%. The percentage of women judges at the Madras and Delhi High Courts was relatively high.

Women’s representation in the judiciary is slightly better in the lower courts where 28% of the judges were women as of 2017. However, it was lower than 20% in Bihar, Jharkhand and Gujarat. The map shows the State-wise % of women judges in the lower courts.

[Date available on: https://www.thehindu.com/data/only-11-women-supreme-court-judges-in-71-years-three-of-them-appointed-in-2021/article36272407.ece ]

And What About Trans Women, Dalit And Adivasi Women?

The gender gap in India is so wide that we are often talking of just ‘women’ representation without paying any attention to the inherent intersectionality debate. Women are not just one monolithic community in India. From all the eleven women who have made it as judges in the Supreme Court, there has been only one Muslim woman – J. Fathima Beewi and one practicing Christian – J. R Banumathi. There has been no dalit, or adivasi woman, and no woman representing the sexual minorities in India, including a trans woman. The intersectional representation has to be borne in mind because women representing different communities bring in perspectives which others cannot. As the International Commission of Jurists report – “Increased judicial diversity enriches and strengthens the ability of judicial reasoning to encompass and respond to varied social contexts and experiences. This can improve justice sector responses to the needs of women and marginalized groups.”

So What Explains Such A Gender Gap In Judiciary?

There are several systemic obstacles that prevent women from being equally represented in judiciary. First of all, there needs to be a clear vision of how much representation of women will be considered as adequate representation and given that women are half of the Indian population, unless there are 50 percent women judges at all levels of judiciary, we have no reason to be complacent. Having 11 percent women at HC and SC level and 36 percent women at district court level is just not good enough. We have to be convinced of raising this bar, before we start engaging in this debate.

Secondly, there is a need to revisit the rules that keep women out by appearing to treat them ‘equally’ without paying attention to the need for ‘equitable and not equal treatment.’ For example – an advocate must have a minimum of seven years of continuous practise to be eligible to be a district judge. “This could be a disqualifying criterion for many women advocates because of the intervening social responsibilities of marriage and motherhood that could be preventing them from having seven years of continuous practice,” said Diksha Sanyal, a researcher involved with the Vidhi Centre studies on this issue. While Article 233 of the Constitution provides that appointment as a district judge requires not less than seven years as an advocate, it is the Supreme Court that has interpreted it to mean ‘continuous practice’. Similarly, “the entire attitude towards women who work outside home must change,” said Justice Prabha Sridevan, a retired judge of the Madras High Court. For instance, she said that one of the reasons that reduces women to stay in power is the transfer of women magistrates every three years.

Third, we need to discuss the issue of reservation for women not just in Parliament but also in High Court and Supreme Court of India. “Reservation quota for women is perhaps just one among many factors that encourages and facilitates more women to enter the system. In states where other supporting factors are present in sufficient measure, women’s quotas perhaps help bridge the gap in gender representation,” noted the 2020 EPW special article.

Fourthly, we need to design the system in a way that incorporates the requirements of women who aspire to be judges. “A lot of female judges join the service very late, which makes their chance of making it to the high courts or Supreme Court bleak,” said Soumya Sahu, a civil judge in Madhya Pradesh. Women judges are not immune to the “leaking pipeline”, the term used to describe how many employed women quit the workforce mid-career when children face board exams and parents need additional care—jobs that fall to women. “A total reorientation of the way society thinks of family and marriage is needed,” said Justice Sridevan. “It becomes difficult if you think the woman is the sole nurturer.” To address these issues, we need to think of the challenges beyond conventional solutions that are discussed to reduce the gender gap. The gender gap in Judiciary is not separate from the gender gap that we see in all segments of society. So the need of the hour is to understand and address the requirements of women at all levels, which may require us to disrupt the current system of looking at things. Breaking the conventional ways may include more female voices at all levels of decision making and creating inclusive spaces where we don’t just engage in tokenism by appointment a few women.

Above all, what’s needed is self-reflection and being aware of our own mental barriers and perceptions regarding women and what they are capable of doing. Sometimes the attitude of judges towards female lawyers and judges may become apparent through small anecdotes that what statistics may reveal.

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, said in a November 2014 interview with The Hindu – “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.”

Advocate Kiruba Munusamy shares an incident while in Madras High Court, where a judge commented about her short haircut, which she couldn’t tie. He said, “Your hairstyle is more attractive than your argument. Women having short hair and men having long hair, wearing studs have become a fashion these days but I don’t like it.” She replied that she has been keeping short hair since her school days. She also mentioned that she has migraine and can’t keep her hair tied for long, so she had it cut short. She then pointed out to him that there is no bar council rule or code that prescribes the hairstyle of women. His response was, “Of course, there are no rules. But I am just telling my opinion.” Kiruba was asked by other male lawyers who were present in the court room to apologise to the judge regardless of his comments. The advocate that day was insulted, mistreated and told to shut up by the judge even though she was the Petitioner’s counsel in a transwoman’s police appointment case.

While every female judge who makes it to the apex court serves as an inspiration for millions of young women, it is time that we think systematically about getting millions of girls as judges and lawyers in various courts and levels in our legal system. This will require shattering quite a few glass ceilings and setting examples through action, initiatives, policy, laws and attitudes, all of which begins with sombre reflection.

First Published here:

http://inspire.profcongress.com/inspireInside/?unique_id=perspectives_0001

08/12/2024 0 comments 33 views

THE SUPREME COURT OF INDIA NEEDS MORE WOMEN JUDGES

by Guest Author 08/12/2024

written by Guest Author

Lokendra Malik, Advocate, Supreme Court of India

The Supreme Court of India has a sanctioned strength of 34 judges including the Chief Justice of India but currently, it has only one woman judge Justice Indira Banerjee. As of now, the Supreme Court has five vacancies of judges and a few more judges will be retired by the end of this year. Surprisingly, in seventy years of existence, only eight women judges have graced the bench of the Supreme Court of India. This is not good news from the gender justice point of view as half of our population is not getting reasonable representation in the apex judicial tribunal of the country. More women judges should be appointed at all levels in the judiciary. Justice Fathima Beevi was the first woman judge of the Supreme Court of India who was appointed in 1989. The second woman judge of the Supreme Court was Justice Sujata V. Manohar who was appointed in 1994. The third woman judge of the Supreme Court, Justice Ruma Pal came in the year 2000. After her retirement, it was Justice Gyan Sudha Mishra who came to the Supreme Court in 2010. In 2011, Justice Ranjana Prakash Desai was appointed to the Supreme Court. Justice Bhanumathi was elevated to the Supreme Court in 2014. Justices Indu Malhotra and Indira Banerjee came to the Supreme Court in 2018. All these judges have made a wonderful contribution to the Indian judicial system by delivering hundreds of judgments.
Many legal scholars, lawyers, and sociologists have rightly expressed their concerns about the invisible representation of women in the higher judiciary particularly the Supreme Court of India. It is widely believed that India needs more women judges in the constitutional courts. But unfortunately, no effective steps seem to have been taken by the judge-makers to remove this gender gap until now. For this lapse, both the government and the judiciary are responsible. Both of them have failed to promote gender equality in the judiciary. Before 1993, it was the Union Executive that had a very powerful say in judicial appointments but it ignored the representation of women on the top bench. In the Supreme Court, the first woman judge was appointed in 1989. After 1993, the Supreme Court collegium is the actual judge-maker in the country. Sadly, even the Supreme Court collegium has also ignored the women in judicial appointments in the Supreme Court and High Courts. The collegium should not miss a great opportunity to bring more women judges in the constitutional courts that could provide them timely chances to lead the Supreme Court of India one day. The male-dominated Supreme Court collegium is expected to have a more liberal and generous approach in terms of making judicial appointments of women in the higher judiciary. Unfortunately, India could not have a woman Chief Justice even after seven decades of the Supreme Court’s establishment. The judge-makers should think about this issue seriously. It all depends on their willpower and commitment to the cause of women’s empowerment in the judicial branch that holds a very significant position in our constitutional scheme.

Some sitting judges of the Supreme Court have also raised their concerns about the inadequate representation of women in the Supreme Court on a few occasions. A few weeks ago, while speaking on the occasion of a farewell ceremony organized by the Supreme Court Young Lawyers Forum on March 13 to honour Justice Indu Malhotra, Supreme Court judge Dr. D. Y. Chandrachud said about this issue: “Justice Malhotra’s retirement means that the Supreme Court now has only one female judge on the bench. As an institution, I find that this is a deeply worrying fact and must promptly receive serious introspection”. Further he went on to say that “as an institution whose decision shape and impact lives of everyday Indian, we must do better. We must ensure the diversity of our country find reflection in making up of our court. Intrinsically having a more diverse judiciary is an end, a goal in itself and worth pursuing in its own sake. Instrumentally, having a more diverse judiciary, ensured diversity of perspectives is fairly considered, instils high degree of public confidence.” Justice Chandrachud’s remarks deserve serious consideration by judge-makers. The Supreme Court collegium should consider it from a larger perspective that could ensure a fair representation of women on the bench of the top court. It will be in the collective interests of the judiciary if the collegium takes care of diversity on the bench which is a must to ensure justice to the people.

Notably, the Supreme Court collegium led by Chief Justice Bobde could not recommend even a single appointment to the Supreme Court due to the lack of consensus among the members of the collegium. The collegium led by him also faced some other issues like geographical and seniority considerations in choosing judges for the top court. This is not the first time that the Supreme Court collegium faced this kind of situation in selecting judges. Even in the past, the collegium has such challenges and made selections by relaxing the seniority norms. There are precedents where judges have been elevated to the top court by ignoring the seniority norms and High Court representations. The judgments of the Supreme Court particularly its 1999 ruling also allow the departure from seniority norms in judicial appointments. There is no hard and fast rule of seniority that prohibits the collegium from elevating junior judges to the Supreme Court. Some brilliant women judges of the High Courts may be considered for the Supreme Court judgeship by relaxing the seniority norms so that they could get an opportunity to lead the Supreme Court in the future. This can be an extraordinary relaxation to ensure gender balance on the bench of the top court. The sky will not fall if the collegium relaxes the seniority constraints to appoint brilliant women lawyers and judges to the top court. In addition to this, some brilliant women legal academics and lawyers may also be considered for the judgeship in the Supreme Court. A few lawyers were directly elevated to the Apex Court during the last few years. The Supreme Court has many brilliant lawyers who can be considered for the judgeship in the top court. A gender balance in the higher judiciary is the need of the hour. The collegium led by the new CJI Ramana may consider all these issues.

Unfortunately, no law professor has ever been appointed as a judge in the Supreme Court despite the availability of constitutional provisions to this effect under Article 124(3)(c) from the category of ‘distinguished jurist’. Has not the time come when the Supreme Court collegium should activate this dormant constitutional provision? India has many brilliant professors who have made a wonderful contribution to the legal system and they truly deserve this honour. A renowned legal academic can be appointed as a judge in the Supreme Court to include the legal academia in the judicial adjudication process? This was the dream of our great founding fathers who were inspired by some foreign jurisdictions that had appointed eminent law professors as judges in their top courts. Professor Felix Frankfurter of Harvard Law School was directly elevated to the U.S. Supreme Court. The Supreme Court collegium has all opportunities to diversify the bench of the apex court to make the judiciary more inclusive. It should not delay this noble work more. Needless to say, the collegium is the real judge-maker in the current constitutional practice and the central government is bound to implement its recommendations. It has all powers to diversify the Indian judiciary. Now after the judgment of the Supreme Court in the case of M/S P.L.R. Projects Ltd. v. Mahanadi Coalfields Ltd., the Central Government cannot delay judicial appointments as the Court has rightly fixed a timeline for the government to clear appointment of judges within a prescribed time. The collegium may consider ensuring gender justice to the women in the country given the national commitment to the cause of women’s empowerment in the judiciary.

The Supreme Court decides many important issues relating to women which can be properly adjudicated only by the women judges. Not only this, but the presence of women judges in the Supreme Court also enhances the faith of the womanhood in the supreme judicial tribunal lays down the law of the land. The new Chief Justice of India N. V. Ramana may convince his colleagues to give more representation to the women in the higher judiciary by adopting a more liberal approach. If possible, the new CJI may also include a woman judge in the decision-making process of the Supreme Court collegium. The Supreme Court of India has always stood for the cause of women’s empowerment. It should encourage the women lawyers and judges to come forward to join the apex court. The top court should have at least 5-6 women judges from different communities and parts of the country. Many brilliant women lawyers and judges are available in the Supreme Court and the High Courts who can make a great contribution if timely opportunities are given to them. Some of them may also become the Chief Justice of India one day. There is a severe shortage of women in the Supreme Court and High Courts also. This is the time when the Supreme Court collegium should give adequate representation to the women in the higher judiciary.

08/12/2024 0 comments 34 views

In search of the first woman Chief Justice of India

by Guest Author 08/12/2024

written by Guest Author

Even after 70 years of its existence, the top court has not had a woman Chief Justice of India.

Lokendra Malik
First Published on Bar and Bench:
28 Mar, 2021 , 5:38 am

Though justice is usually portrayed as a woman, it has in general been embodied by men. The Supreme Court of India is also mainly a male-dominated institution. It has a strength of 34 judges, including the Chief Justice of India, but it has only one woman judge after the recent retirement of Justice Indu Malhotra.

There have been very few women judges in the Supreme Court up till now. Justice Fathima Beevi was the first woman judge of the Supreme Court of India, appointed in 1989. The second woman judge was Justice Sujata V Manohar, who was elevated to the Supreme Court in 1994. The third woman judge, Justice Ruma Pal, came to the Supreme Court in the year 2000. After her retirement, it was Justice Gyan Sudha Mishra who came to the Supreme Court in 2010. In 2011, Justice Ranjana Prakash Desai was appointed to the Supreme Court. Justice R Banumathi was elevated to the Supreme Court in 2014. Justices Indu Malhotra and Indira Banerjee, who will retire next year, came to the Supreme Court in 2018. All these women judges have made great contributions to the Indian judicial system by delivering judgments on a variety of significant issues relating to public, private law, and governance.

Even after 70 years of its existence, the top court has not had a woman Chief Justice of India. The reason is very simple. First, a lack of willpower on the part of judge-makers, and second, the formality of seniority convention plays a very significant role in making the Chief Justice of India. No lady judge reaches that zone of consideration because of the lack of seniority. For reaching the top position in the apex court, a judge needs a fairly long tenure of eight or nine years.

Only two times was this seniority convention breached – in 1973 and 1977 during the tenure of Prime Minister Mrs. Indira Gandhi – when junior judges were appointed to the office of the Chief Justice of India by superseding their seniors. The legal fraternity had rightly criticized such judicial supersessions. But thereafter, the seniority convention has been followed consistently in the appointment of the Chief Justice of India and there does not seem to be any apprehension of its dilution in the future as the Supreme Court has also approved this seniority convention in the Second Judges’ case in 1993.

The Supreme Court Collegium may consider elevating a woman judge who can have a tenure long enough to become the Chief Justice of India as per the seniority convention. This is a much-needed step toward the cause of women’s empowerment in the judiciary. Bypassing the seniority convention is neither possible nor desirable as judicial supersessions cause irreparable damage to judicial independence and give unwanted opportunity to the executive to control the judiciary. The timely appointment of woman judges so that they have long tenures is the best solution. And for this purpose, the Supreme Court collegium should take the initiative.

Post-1993, the judiciary has taken the power to appoint judges from the executive through constitutional interpretation, in the larger interests of judicial independence. Before 1993, the Prime Minister and the Union Law Minister were very powerful in making judicial appointments. They were the real judge-makers in the country. But now they have lost such influence. Under the existing practice, the judges of the Supreme Court are appointed by the President of India on the recommendation of the Supreme Court Collegium, which is headed by the Chief Justice of India and consists of four of his senior-most colleagues. This Collegium is the actual judge-maker and the President, Prime Minister, and the Union Law Minister have little say in judicial appointments.

However, the Central government has some scope to delay judicial appointments in some cases. The decisions of the Collegium are made by consensus. If two or more judges oppose the Chief Justice’s proposals, the Collegium cannot finalize the names and the President is also not bound to accept such recommendations. This exercise is done to eliminate the sole authority of the Chief Justice of India in judicial appointments. Now the CJI has to build a consensus among all his colleagues and finalize the names accordingly. He cannot ignore their views at all.

The President of India is bound to act as per the recommendation of the Collegium if it decides the names by consensus. However, the President, as aided and advised by the Prime Minister, has an option to return the recommendation of the Collegium once for its reconsideration. Thereafter, the President is bound to accept the Collegium’s recommendation if it reiterates its view. In other words, the Collegium has the final say in judicial appointments.

The present Supreme Court Collegium is headed by Chief Justice SA Bobde. Its other members are Justices NV Ramana, RF Nariman, UU Lalit, and AM Khanwilkar. As of now, the Supreme Court has four vacancies and five more judges will retire by the end of this year. Despite this, the Collegium headed by Chief Justice Bobde has not made even a single appointment to the Supreme Court. As per media reports, there is some deadlock in the Collegium, which has not reached a consensus on Chief Justices of High Courts who are eligible for elevation to the top court as per the seniority rule.

Chief Justice Bobde will retire next month. The last time a Chief Justice of India retired without recommending a single appointment to the Supreme Court was in 2015 (during the tenure of Chief Justice HL Dattu), when there was an unprecedented deadlock between the Central government and the judiciary on the issue of the National Judicial Appointments Commission (NJAC). After Chief Justice Bobde’s retirement, Justice N V Ramana is likely to become the Chief Justice of India as per the order of seniority.

There is no dearth of brilliant women High Court judges and lawyers in the country. There are many brilliant women lawyers and judges who, if elevated soon to the top court, can become the Chief Justice of India after a few years as per the seniority rule. The biggest issue is to include them in the seniority circle so that they could come to the top after a few years. I think this is a great opportunity for the Collegium to give India its first woman Chief Justice of the Supreme Court. It is not a difficult task. It requires strong commitment to the cause of women’s empowerment in the judiciary.

In addition to this, the Supreme Court needs more women judges also. There should be at least four to five women judges in the Supreme Court. The Court decides many important issues which can be properly adjudicated with the help of a woman judge’s perspective. Some brilliant women lawyers can also be considered for the judgeship in the top court.

Justice Indu Malhotra is the first woman to be directly elevated from the Bar. This trend of making appointments from the Bar needs to be continued in the future also. Some brilliant legal academics can also be considered for judgeship in the Supreme Court, given the constitutional provision of appointments of ‘distinguished jurists’ to the top court.

When it comes to the question of appointment of judges to the Supreme Court from the High Courts, seniority and regional representation are the major criteria that the Collegium considers. But there have been instances where judges have been directly elevated to the Supreme Court by relaxing the seniority norm. It is not rocket science. If senior women judges are not available, there are no written rules that stop the Collegium from appointing a High Court judge or a practicing lawyer to the Supreme Court. Ultimately, the final choice of judges depends on consensus within the Collegium. If all the collegium members decide that it is time to recommend a woman judge’s name for the Supreme Court judgeship, they can do so and a woman judge can be appointed to the Supreme Court at this time.

So, all this depends on the will power of the Collegium, which has conclusive power in judicial appointments. There is no reason to assume that the Central government will not appreciate this idea, which promotes women’s empowerment. So, now the ball is in the Collegium’s court.

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08/12/2024 0 comments 22 views

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