Women in Indian Judiciary

WHY IN NEWS?

• Recently collegium headed by Chief Justice of India paved the way for a woman judge to head the judiciary in 2027. This is a welcome step and has raised the larger issue of more representation of women in the judiciary.

MORE ABOUT THE NEWS:

• Out of the sanctioned strength of 34 judges, the Supreme Court currently has four women judges which is the highest ever number in its history.

CURRENT GENDER GAP IN JUDICIARY:

• The Indian judiciary lags greatly in terms of gender parity
• In its 71-year history, of the total of 256 judges appointed to the SC, there have been only 11 women (constituting a mere 4.2%)
• In 1980, Justice M Fathima Beevi became the first woman judge to be appointed to the apex court, 30 years after its establishment.
• The average percentage of women judges in all high courts (HCs) is 11.8%, with Madras HC having the highest number of women judges, and five HCs not having a single woman judge.
• Further, of the 416 persons designated as senior advocates by the SC to date, only 18 are women (4.05%).
• There are more women judges in the lower judiciary, but their elevation remains few and far between due to institutional biases.
• Bar Council of India does not have a single woman member in its committee or as its chairperson.
• However awareness of and responsiveness towards the barriers hindering women’s judicial careers has increased across OECD countries during the last decade
• In OECD countries >> Women represents on average 53% of all judges in 2014.

CONSTITUTIONAL POSITION ON WOMEN REPRESENTATION:

• The appointment of high court judges is made under Article 217 and those of the Supreme Court under Article 124 of the Constitution of India.
• These Articles do not provide any reservation for any caste, class or person, including women.
• But from time to time, the Government of India and the Supreme Court itself have been insisting on giving weightage and consideration to deserving candidates among women also, while making recommendations for the appointment as judges.

NEED TO BRIDGE THE GENDER GAP IN JUDICIARY:

• Judiciary to lead the progressive change:
  • The judiciary shapes society, and, therefore, should reflect social diversity.

• • Therefore more women representation in judiciary will not just inspire women to have ambitions but also erode structural bottlenecks and have a domino effect on other related institutions.
• Principle of reasonable representation:
  • As per this, there has to be more women judges as they constitute almost 50% of the Indian population, but are highly underrepresented in the judiciary.
• Essential to the legitimacy of the judiciary
  • The judiciary will not be trusted if it is viewed as a bastion of entrenched elitism, exclusivity, and privilege, oblivious to changes in society and to the needs of the most vulnerable.
  • Indeed, citizens will find it hard to accept the judiciary as the guarantor of law and human rights if judges themselves act in a discriminatory manner.
  • That is why the presence of women is essential to the legitimacy of the judiciary.
• Diverse perspective in decision making:
  • Women judges also face all the social and cultural challenges common women face.
  • Women judges bring those experiences to their judicial actions, experiences that tend toward a more comprehensive and empathetic perspective that encompasses not only the legal basis for judicial action, but also awareness of consequences on the people affected.
• To ensure impartial judgment:
  • Judicial independence is prized because it creates the space necessary for impartial judgment, but it does not ensure impartial judgment.
  • Being sworn in as a judge does not magically insulate us from biases and misunderstandings, something all human beings carry as a result of their particular experiences.
  • While there is no simple antidote to this problem with regards to the judiciary, diversifying the life experiences of those who adjudicate cases improves the probability that biases and misunderstandings will be checked.
• Ensuring rule of law:
  • Ensuring gender balance in judicial leadership has been increasingly highlighted by OECD countries as a key governance issue related to fairness, transparency and the effective rule of law.
• Achieving SDG:
  • Sustainable Development Goal 5 of UN calls for attaining gender equality. Greater participation of women in the judiciary will act as a prudent step in this direction.
• Lack of gender sensitivity in the court judgements:
  • For example:
    • Bhanwari Devi case in 1995:
      • The acquittal order by the Rajasthan court gave absurd reasons such as a higher caste man cannot rape a lower caste woman for reasons of purity
    • Narendra vs K. Meena (2016):
      • S.C held that under Hindu traditions, a wife on marriage is supposed to fully integrate herself with her husband’s family and that if she refuses to live with her in-laws, it would amount to cruelty and the husband would be entitled to divorce her under the Hindu Marriage Act
    • Tarun Tejpal case 2021
      • Scrutiny of survivor’s sexual history in rape trials >> still continues
  • More women representation may improve gender sensitivity towards victims while laying down bail conditions for sex crime offenders.

CHALLENGES:

• Failure of collegium system:
  • In higher judiciary the power of appointment rests almost exclusively with the Supreme Court Collegium.
  • The appointment process is not very transparent and the collegium over the year have been male dominated which might have resulted in low ratio of selection of women judges.
• Patriarchal nature of Indian society:
  • India basically has been a male-dominated society and has not allowed women to play a role that they can play in different walks of life, including the judiciary.
  • The Bill for giving 33% reservation to women in Parliament and state legislatives has not been passed till date, despite all major political parties publicly supporting it.
• Stringent eligibility criteria:
  • In the lower judiciary, major barrier to women’s recruitment as district judges are the eligibility criteria to take the entrance exams.
  • Lawyers need to have seven years of continuous legal practice and be in the age bracket of 35-45. This is a disadvantage for women as many are married by this age.
  • Further, the long and inflexible work hours in law, combined with familial responsibilities, force many women to drop out of practice and they fail to meet the requirement of continuous practice. Thus, many women judges from lower judiciary do not make it to the higher judiciary.
• Gender insensitive infrastructure:
  • According to a report by Vidhi Centre for Legal Policy in 2019, about 15 per cent of courts in India do not have a women’s toilet.
  • Another report by Vidhi Centre showed that only about 40 per cent of 555 district courts in India have functional women’s toilet while 100 districts do not have toilet facilities for women.
• Frequent transfers:
  • Magistrates are made to transfer every three years.
  • This can be seen as another challenge to fill the gender gap in the judicial system as the defined gender roles in the Indian society makes it difficult for women to stay away from their homes for their careers.

WAY FORWARD:

• Reservation for women in judiciary:
  • Bring legislation to ensure 50% reservation for women in all levels of judiciary.
  • This should be in line with recent remark by Chief Justice of India ‘that he would prefer at least 50% representation of women in the judiciary at all levels’.
• Encouraging more women to take up the lawyer profession:
  • Both the government and the Bar Council of India has to take adequate steps to include more women to take up the Lawyer profession. This will improve the quality of women lawyers in the long run.
• Mandatory training of all lawyers on gender sensitisation:
  • This would ensure that women are not discriminated within their profession >> and may help in breaking glass ceiling in their carrier.
• Concrete data on women representation:
  • Supreme Court should direct collection of data to determine the number of women judges in the lower judiciary and tribunals and also to determine year-wise number of senior designates by all High Courts
• Transparency in selection process:
  • According to the UN Women, transparent selection and appointment processes >> will solve the gender dis-parity in judiciary to a large extend.

BEST PRACTICE

• Spanish model – ‘Plan of equality in the Judicial career’:
  • The Spanish general council of the judicial power approved the Plan of equality in the Judicial career in 2013, which aims to eliminate any form of gender discrimination in accessing and advancing within the judicial career, ensure professional development of women etc.
• International Association of Women Judges
  • The issue of judging with a gender perspective has been a special focus of the International Association of Women Judges.
  • It is a non-governmental association with over 6,000 members in more than 85 countries worldwide.
  • Over the years, its members have participated in judicial training on the interpretation and implementation of law in a manner that is free from gender bias

PRACTICE QUESTION:

Q. ‘Justice will be served if gender diversity is found on the bench’. In the light of this statement analyse the need for bridging gender gap in Indian Judiciary?