Time to bridge the gender gap
The first woman judge in the Supreme Court was appointed in 1989, after 39 years of the commencement of the Constitution. After that, ten more women judges have graced the bench of the Apex Court. But this state of affairs is painful, we still need more women judges in the Apex Court. In addition to the Supreme Court, there have also been a few women judges in different High Courts.
“What is a Wanderess? Bound by no boundaries, contained by no countries, tamed by no time, she is the force of nature’s course.” These lines from the famous classic of Roman Payne, The Wanderess epitomizes that a person does not grow from the ground like a vine or a tree, one is not part of a plot of land. Mankind has legs so it can wander, and sometimes this wandering leads to a change which gets embedded in the history of human civilization.
At the site of this heteropatriarchal judicial institution, if one were to integrate feminism with lawyering and judging, would the nature of the institution transform into a more equal one? According feminist scholar(s), ‘feminist lawyering’ entails the capacity to ‘inform feminism’ and ‘transform lawyering’. According to them, feminist litigation entails feminist lawyering on feminist concerns, while acknowledging the existence of numerous and frequently conflicting feminist perspectives.
While feminist judging is founded on the model of feminist advocacy, the emancipatory potential of feminist judgement lies in the fact that the ‘alternative judgments’, ‘missing judgments’, or ‘dissenting opinions’ reveal the extent to which cases could (and should) have been decided while adhering to legal and constitutional constraints. Due to the fact that law is not only a coercive force operating in a gendered real world, but also capable of establishing a discourse that forms the gendered narrative of that real reality, judgement(s) written with a feminist perspective acts as a potent intervention to disrupt the latter.
The first woman judge in the Supreme Court was appointed in 1989, after 39 years of the commencement of the Constitution. After that, ten more women judges have graced the bench of the Apex Court. But this state of affair is painful, we still need more women judges in the Apex Court. In addition to the Supreme Court, there have also been a few women judges in different High Courts. Time and again, the issue of women’s representation has been raised and discussed in the country. Still, no effective steps have been taken to minimize the gender gap in the higher judiciary. Thankfully, for the first time in the country’s judicial history, the current Chief Justice of India Mr. N. V. Ramana took a great initiative to appoint three women judges in the Supreme Court in one go. One of them is likely to become the Chief Justice of India, it will be a great day in our constitutional history when the county will have the its first woman Chief Justice of India.
It is a matter of great satisfaction that CJI Ramana has also taken steps to increase the representation of women judges in the High Courts. Under his leadership, the Supreme Court Collegium recommended the names of several women judges for High Courts. The Central Government has cleared some names, but many names are still pending with the government for approval. The CJI has expressed his concerns regarding this trend. A few days ago, speaking on the occasion of International Day of Women Judges on 10 March, the CJI said, “For the High Courts, we have recommended so far 192 candidates. Out of these, 37, that is 19 per cent, were women. This is certainly an improvement over the percentage of incumbent women judges in High Courts, which stands at 11.8 per cent. Unfortunately, so far, only 17 of the 37 women recommended to High Courts were appointed. Others are still pending with the government.” The concerns raised by the CJI are genuine, and the government should take urgent steps to clear the names of women judges. However, the CJI has to take some more pain to encourage the government to expedite the appointments of women judges. The Supreme Court Collegium has the final say in judicial appointments, and the CJI should assert the importance of the Collegium effectively.
The CJI also gave an idea to reserve seats for women in legal educational institutions to increase the representation of women in the legal profession. This is what he said, “I am a strong proponent of affirmative action. To enrich the pool of talent, I strongly propose the reservation of girls in legal education. The data proves such a provision has yielded encouraging results in appointing women judicial officers at the district level. Telangana with 52%, Assam with 46%, Odisha with 42%, Rajasthan with 40% of women among judicial officers have done well with reservation for women. I strongly feel that the policy of providing reservation to women needs to be replicated at all levels and in all the States.” The suggestions offered by CJI Ramana need serious attention and consideration by the lawmakers. It will be helpful in maintaining gender balance in the institution of the judiciary.
Several brilliant women lawyers are practising in High Courts in the country. There is only a need for sincere willpower of the government and the Collegium to identify suitable women candidates and offer them judicial assignments based on their merits. Women judges can make a qualitative difference in the administration of justice. Therefore, their numbers should be increased in the judicial branch of the state. Justice Ruma Pal, a former Supreme Court judge, has rightly said that “the presence of women as judges and lawyers, will substantially improve the justice delivery system. The presence of women on the bench and in the bar has more than a symbolic importance. They bring to the law a different perspective, one that is built upon their experience. They also have a more nuanced understanding of the differing impacts that certain laws may have on men and women.”
Admittedly, gender equality is a great constitutional value. The policymakers are duty-bound to remove the hurdles that come in the way of women’s entry and promotion in the legal profession. Also, society owes a collective duty to support the demand of women’s representation at all levels in the judiciary with the legislators who are empowered to amend the Constitution and enact laws for the welfare of the people. Also, there is a need to organize sensitization programs to spread awareness about the cause of women’s representation in the judicial branch of the state. Undoubtedly, greater representation of women across all levels of the judiciary is the need of the hour for eliminating patriarchal attitudes that affect the interests of women adversely.
Being the decisive force in judicial appointments, the Supreme Court Collegium needs to do more to increase the number of women judges in the constitutional courts because the equitable
presence of women is essential to sustain the faith of the people in the administration of justice. If the Collegium takes necessary steps, the government will have no option but to cooperate, given the power of women in our constitutional democracy. The Supreme Court administration should also publish a special report highlighting the efforts to enhance the representation of women in the judiciary. Also, the political parties need to raise this issue in Parliament to build adequate pressure on the government to expedite the appointment process of judges to the Supreme Court and High Courts. India needs more feminist judges in the constitutional courts who can come forward to stand for the cause of women’s empowerment and achieve gender equality and parity.
As former President of the Supreme Court of the United Kingdom, Lady Hale of Richmond famously observed, “that not all women are feminists but many men are and that gives us hope for the future.” Let us conclude this discussion with these thought-provoking words of one such man, Justice A. K. Sikri, a professor judge: “I am of the firm opinion that every male, in order to be a complete human being,
should possess some elements of femininity. After all, the symbol of justice is a goddess, a female form. No
doubt, she is shown blindfolded. However, her heart, from where emanate the qualities imparting justice,
is not shut. In the first place, it teaches us that everyone may not be nice, but there is something nice in everything.
But never keep a fixed image for everyone, because people act differently in different situations.”