Gender parity in the dock
There are very few women in the higher judiciary. It’s time to take affirmative action to rectify this, writes JAYANTHI NATARAJAN
The Supreme Court of India came into existence in 1950. Since then, only 6 women have ever been appointed judges of the Supreme Court. This, in a country where our Constitution mandates equality for all, and prohibits, inter alia, discrimination on the basis of gender. Does this then mean that although comprising almost half of a 1.25 billion population, only six women, were found suitable, over 67 years to be appointed to the Supreme Court? Or is it a stark testament to the fact that the concept of gender equality has a good shelf life, but little real impact on the ground level, in our country? Quite obviously, the answer is that women are not by any means equal participants in our democracy, particularly in the judiciary.
On February 18, five new judges were appointed to the Supreme Court. All were men. The strength of the Supreme Court rose to 28 judges, as against a sanctioned strength of 31. Only one of the 28 puisne judges of the Supreme Court Justice R. Bhanumathi,is a woman. Since the creation of the Supreme Court upto 2015, 229 judges were appointed of which only six were women.
The first woman to be appointed as a judge of the Supreme Court was Justice Fatima Beevi, in 1989, a good 39 years after the creation of the Supreme Court. In proportion to 611 male judges in the High Courts there are only 62 women judges, as of 2016, which is roughly 9.2%. In nine state High Courts, there is not even one woman judge, and three state High Courts, boast of one woman judge each. Delhi High Court has the highest number of women judges, supporting a fairly reasonable assumption that the large number could be attributed to a woman Chief Justice there.
Approximate estimates of women judges in lower courts put the figure at around 28% , while, women lawyers appear to be 10% of the total number of lawyers. Significantly, law students appearing for the law exam had almost equal number of men and women (48%). It would be fair to assume that it is not lack of education or availability preventing women from being app ointed judges in the higher judiciary, but rather, that the higher the process went, from law students, to lawyers, lawyers to lower judiciary,t hence to the higher judiciary, the attenuation of women is drastic,and terrible. Clearly, women do study law, as they do medicine or engineering. However, while navigating the organisational politics of upward mobility, they begin to fall by the wayside.
Justice Prabha Sridevan observes, “In a healthy democracy,the judiciary must be a mirror of the whole society. This is not an argument against merit, but an argument for inclusion…There are many deterrents for a woman practitioner of law who is an aspirant to the Bench, all created by the realities of history. They should be removed by those who make the selection by considering gender and its attendant issues.The glass ceiling is there not because they (women) lack merit, but because they are women…”
Women toil at the lowest and most physically demanding of jobs. Whether agriculture or construction, it is women who bear the brunt of the work, despite terrible discrimination in remuneration and working conditions. Women work everywhere, at home,and outside,and achieve pinnacles of excellence, in business, profession and sports.We have had a woman President, and a woman Prime Minister. Yet, we have been unable to achieve a reasonable number of women on our court benches.
In a polity like ours, where the legal field forms one of the most important pillars of our democracy; and the courts still command the faith of citizens at large; where the judiciary is the interpreter of the law of the land; it is quite simply unacceptable not to have a critical mass of women judges. This is not to postulate that all male judges are anti-woman – although several do have inherently patriarchal mindsetsor that women judges will necessarily uplift the cause of women. The argument for a critical mass of women judges rests on the simple proposition that a “larger number of women in the judiciary would promote gender equality if only because their proportionate presence in the profession would itself reflect it” as Rajeswari Sundararajan put it. Further, women can certainlyq hope that women judges would understand their travails better.
In 2015, the Supreme Court Women Lawyers Association vociferously argued before the Supreme Court that there should be greater representation for women on the Bench . In the absence of sufficient women judges,our judicial pronouncements would lack a female sensitivity or dimension. Chief Justice Khehar ( then a puisne judge) while hearing the arguments, observed that the ratio of women judges should be in the same ratio of women lawyers to male lawyers. With all due respect, this particular criterion is very unfair to women, who are prevented not by lack of talent or hard work, but by discrimination and related hurdles from heading law firms or being designated as senior advocates. As with other fields, allowances must be made for the discrimination faced by women lawyers, and suitable weightage given to this when judges are appointed. This would not be reservation, but affirmative action. In the interests of half the population of this country, the Collegium of Judges, responsible for judicial appointments, and the Government should take serious note of this clarion call from the women of our country.