SEXISM IN INDIAN JUDICIARY

Reading time : 8 minutes

Author Note: Recent developments of Indian judiciary with change in society and its needs, highlight the livingness of Indian law mechanism, Even after 74 year of Independence Indian is known for its Independence in Judiciary, Judiciary has pronounced various judgement and marked a precedent for empowerment and protection of women, But one question lies unanswered that why the representation of women in Higher judiciary is very low in comparison of men, in fact Indian never had a women CJI, , In case of sexual offence happing against women, the bench consisting of Male justices can male judge can relate to the personal injury happened to the victim? Is there a necessity to have equal representation of men and women in higher judiciary.

Introduction

India as a nation has been battling gender biases and prejudices since the time it gained independence, Indian Judiciary doesn’t paint an image that’s any different, The Thought of building an all insightful judiciary has been on the judicial horizon of India off late but the moulding of a new India has been an uphill task continuing at a meandering pace[1], As per the recent reports the chronic problem of gender imbalance in higher judiciary with only 12% of the entire strength being women is indeed startling, The favoured discourse in India takes place on case backlog[2] inadequate number of judges[3]Predominance of caste based or community based appointments of judges but not on having an inclusive judiciary with an equal gender representative character. The law Commission report has categorically defined the various terms of delay, backlog and pendency which are often used interchangeably after the priority was raised in Imtiyaz Ahamad v state of UP[4]. The Law Commission also underlined Justice MJ Rao Committee Report[5] with the aim of speedy disposal of cases be the part of the judges. The committee has examined the present patterns of Institution, disposal and pendency, to address the question of whether more judicial resources are required so as to clear the present pendency and stop the backlog within the future

 Proportion of male and female judges in Constitutional courts- throwing light on facts

Selection criteria of judges are an elusive subject in India until recently, when legal academicians and political scientists started taking a keen interest in identifying and understanding the explanation behind an equivalent[6]

What gets in while selecting a judge, what are the parameters are ticked before appointment has come up to the forefront in Rajya Sabha debates as well when assertions of corruption and imperiousness started cropping up against justices of the honored apex judiciary.[7] the upper judiciary’s covert approach of appointment has also been criticized for ‘nepotism’ and ‘hypocrisy’ by none aside from the members of judiciary themselves.[8] since the establishment of the Supreme Court of India till 1989, Every 93 judges who have served the supreme apex Court have all been men.[9] Legal education has been off limits for ladies for several decades, yet few of them who made the difference by seeking legal education didn’t have a bed of roses to steer on.[10] Looking upon the trend in Indian Judiciary, it took almost four decades after the establishment of the Supreme Court of India for a lady to become a judge within the Supreme Court. Till date, there are only seven female judges within the Supreme Court of India. it had been only in 2018 that a female senior lawyer was directly appointed as a Supreme Court Judge.[11] Indu Malhotra J.’s direct move from bar to bench is seen as breaking a serious ceiling by many within the legal fraternity, as it has cleared the decks for more woman advocates to urge directly nominated as judges of the Supreme Court. All the six previous woman judges of the court were elevated from the supreme court , the first being M. Fathima Beevi J. in 1989. Her appointment signifies the position of girls at bar and the acceptance of the talent of women In 20 years of independence, India has elected a woman Prime Minister whereas even in six decades, the country is yet to possess a lady Chief Justice of India. it’s argued[12] that within the year 2000, three judges were appointed to the Supreme Court – Y.K. Sabharwal, Ruma Pal and Doraiswamy Raju JJ.. Y.K. Sabharwal and Ruma Pal JJ. would are on an equivalent level of seniority within the year 2005 when R.C. Lahoti J. were to retire, however she was sworn in after Sabharwal J., which, is argued to possess , made her lose her seniority .the standard tie-breakers of seniority[13] includes that if both were sworn in on an equivalent day, the one with more years of service in supreme court would win the seniority stakes, which was also the case with YK Sabharwal J. as compared to Ruma Pal J.’s stint in supreme court service.[14]


Instances are many to suggest that the difficulty lies not with the amount but with the outlook and therefore the yardstick with which women are being judged for the upper judicial posts. Studies[15] have indicated that around 27.6% of judges within the lower judiciary are female, which is higher than the typical within the constitutional courts. Statistics seemingly indicate that the amount is not a bottle neck within the matter of consideration of judges for elevation to the upper judiciary. The problem of poor representation lies elsewhere which is yet to be uncovered. Judicial officers aren’t often the well-liked choices for constitutional court judgeship. Rather, practicing advocates are more preferred for higher judiciary. It are often argued that women can participate in the selection process through bar also , however, spending a big amount of your time in courts can easily means the gender biases that prevails in practicing law there also .Practicing law has always been identified with men in black robes however, when women started venturing during this profession, that they had to spot themselves with the set male standards that characterize a practicing advocate. Therefore, there has never been any initiative in understanding what women can contribute to the judiciary because they need thus far been contesting during a professional found out which isn’t gender neutral. Number of female students as compared to male students in law schools and colleges in India at undergraduate level is additionally not at par[16] but the dropout rate gets higher and better together starts moving up the ladder within the profession. [17] the scholars enrolled in law stream are 3.3 lakh out of which 2.2 lakh are males.


Where are the 1.1 lakh female law pursuers going then? during a valuable profession like law,
women don’t hold an edge of equivalent power as her male counterpart. There has got to be some reasons on why women are being represented at a dwindling rate. tons of senior advocates and judges in interviews have said that being a women, they were never taken seriously by their counterparts.[18] Gyan Sudha Misra J. in an interview said, “I guess lack of religion and belief within the abilities of girls remains rooted in society and more so within the male psyche and that we like better to have their token presence, especially within the higher judiciary, more for the sake of symbol instead of their equal participation”.[19] Former supreme court of Delhi judge AP Shah described how a woman lawyer he had recommended for judgeship was rejected on the grounds that she was ‘rude’, though he believes similar behaviour exhibited by a male lawyer wouldn’t are judged[MPR1]  as harshly.[20] Senior advocate Indira Jaising observes, “There may be a live and kicking patriarchy that forestalls women from breaking the ceiling . The entrenched ‘old boys’ club mentality makes it harder for ladies to lobby for judicial posts”.[21]Addressing the difficulty of gender diversity several scholars[22] have acknowledged that presence of women in judiciary symbolizes participatory democracy, diversity of opinions gives an inclusive characteristic to the judiciary and signals equality of opportunity for all.

 WAY FORWARD

The selected judgements are representative in nature to determine that the point of view or the
presence of the women on the bench has given either a replacement dimension or broader acceptance to legal principle/interpretation. The judicial pronouncements have presented a replacement narrative on the issue of gender. just in case the judgment is authored by a male judge, assembly, the interaction between the judges on the bench, including a female judge, has led to the acceptance of protectionist or sameness approach on the difficulty of gender equality. The Supreme Court of India isn’t only the very best dispute resolution body but plays a pivotal role also in shaping the general public policy of the state . Whenever the court has addressed the issues of policies or matter of larger societal ramifications, there has been a doubt casted on the legitimacy of the intervention by the judiciary. Aspersions were sew the bottom that it does not have mandate to work out policy issues or it lacks the favored support of the people which is essential for bringing in reform within the society. In such situations, either the court should abdicate the responsibility or make the composition representative so as to deal with the criticisms. Whenever a matter of national importance has been delivered to the apex court, it’s uprightly dealt with it understanding the restrictions of its ambit. There are variety of instances where it’s extended its ambit of separation of powers. However, in matters where there’s no legislation or where the prevailing law isn’t sufficient, the Supreme Court cannot sit splitting its hairs in dilemma whether to require a turn that issue or not. If it’s a dispute regarding policy it has to sort the difficulty, also as has got to confirm that the difficulty is addressed by the acceptable organ of the govt. that’s why the upper judiciary must be more gender diverse because it’s not only a dispute resolution body but it’s an establishment integral to the governance of the country.  Diversity of the judges of the Supreme Court enhances the court’s legitimacy. Legitimacy may be a significant requirement of any decision-making body and thus, it can be argued that a various judiciary, which provides substantive and not mere symbol to women, is indeed a necessity for the Supreme Court of India at the present.


[1].Upendra Baxi, “Women in Judiciary: From Raw Deal to New Deal?”, available at: www.indialegallive.com/viewpoint/women-in-judiciary-from-raw-deal-to-new-deal-57342

[2].Law Commission of India, “230th Report on Reforms in the Judiciary – Some suggestions” (Aug. 2009) available at: www.lawcommissionofindia.nic.in/reports/report230.pdf

[3]  . Law Commission of India, “245th Report on Arrears and Backlog: Creating Additional Judicial (Wo)manpower” (July, 2014) available at: www.lawcommissionofindia.nic.in/reports/Report245.pdf

[4] AIR 2012 SC 642

[5].Justice M.J. Rao Committee, Vol 2,“Report on Judicial Impact Assessment In India” (2008) available at: http://doj.gov.in/sites/default/files/judicialimpactassessmentreportvol1%20%201_0.pdf

[6] Jr. G.H. Gadbois, Judges of the Supreme Court of India 1950-1989 (Oxford University Press, New Delhi, 2011)

[7] Press Trust of India, “Justice Soumitra Sen Resigns Ahead of Monday’s Impeachment Motion” The Hindu (2011) available at: www.thehindu.com/news/national/other-states/justice-sen-resigns-ahead-of-mondays-impeachmentmotion/article2417401.ece

[8] C. U. Bhaskar, “Guest Column: Supreme Court faces unprecedented crisis” The Week (2018), available at: http://www.theweek.in/news/india/supreme-court-faces-unprecedented-crisis.html (last visited on Dec. 20, 2019).; S. Rautray, “Judicial secret out in open – Former judge skewers appointment process” The Telegraph (2011), available at: www.telegraphindia.com/india/judicial-secret-out-in-open-former-judge-skewers-appointment-process/cid/324284

[9] Jr. G.H. Gadbois, Judges of the Supreme Court of India 1950-1989 (Oxford University Press, New Delhi, 2011).

[10] P. Kannan, “An Empirical Study on the Satisfaction Level of Women Lawyers towards Their Work Life Balance” 12 IOSR Journal of Business and Management (2013), available at: http://www.iosrjournals.org/iosr-jbm/papers/Vol12- issue3/D01231619.pdf?id=6423

[11]S. R. Singh, “Who is Indu Malhotra?” The Hindu (2018), available at: www.thehindu.com/news/national/who-isindu-malhotra/article22480945.ece

[12] Alok, “How India missed getting its first woman Chief Justice of India” Law School Policy Review, Critical Twenties (2010), available at: www.criticaltwenties.in/lawthejudiciary/how-india-missed-getting-its-first-womanchief-justice-india

[13] Abhinav Chandrachud, The Informal Constitution: Unwritten criteria in selecting judges for the Supreme Court of India (Oxford University Press, New Delhi, 2014)

[14] Y. P. Singh & N. Mittal, “Judiciary and the Supreme Paradox” The Indian Express (March 5, 2019), available at: www.newindianexpress.com/opinions/2019/mar/05/judiciary-and-the-supreme-paradox-1946828.html

[15] A. Ghosh, D. Sanyal, N. Khaitan, & S. Reddy, “Tilting the Scale: Gender Imbalance in the Lower Judiciary” Vidhi Centre for Legal Policy (2018), available at: http://www.static1.squarespace.com/static/551ea026e4b0adba21a8f9df/t/5a818f5a9140b73f5d6d67ff/1518440304789/180 212_Tilting+the+Scale_Final.pdf

[16] All India Survey on Higher Education (2015-2016), 13, available at: http://mhrd.gov.in/sites/upload_files/mhrd/files/statistics/AISHE2015-16.pdf (last visited on Aug. 20, 2019)

[17] 0 P. Kannan, “An Empirical Study on the Satisfaction Level of Women Lawyers towards Their Work Life Balance” 12 IOSR Journal of Business and Management (2013), available at

 www.iosrjournals.org/iosr-jbm/papers/Vol12- issue3/D01231619.pdf?id=6423 (last visited on Dec. 20, 2019).

[18] 1 Staff Reporter, “Gender diversity: Talk held on women in legal profession” The Hindu (2018), available at: http://www.thehindu.com/news/cities/Delhi/gender-diversity-talk-held-on-women-in-legal-profession/article25139430.ece

[19] S. Mishra, “The Sexist Bar” The Week (2016), available at: www.theweek.in/theweek/cover/genderdiscrimination-in-judiciary.html

[20] A. Ghosh, D. Sanyal, N. Khaitan, & S. Reddy, “Tilting the Scale: Gender Imbalance in the Lower Judiciary” Vidhi Centre for Legal Policy (2018), available at: http://www.static1.squarespace.com/static/551ea026e4b0adba21a8f9df/t/5a818f5a9140b73f5d6d67ff/1518440304789/180 212_Tilting+the+Scale_Final.pdf

[21] V. Doshi, “Indira Jaising: In India you can’t eve dream of equal justice. Not at all” The Guardian (2017), available at: https://www.theguardian.com/global-development-professionals-network/2017/mar/09/indira-jaisingindia-is-in-crisis-this-fight-is-going-to-go-on

[22] Rosemary Hunter, “More than Just a Different Face? Judicial Diversity and Decision-making” 68 Current Legal Problems 119-141, (2015), available at: https://academic.oup.com/clp/article/68/1/119/337616


 [MPR1]

Author: M.P. RANNIKA, School of Legal studies Reva university

Editor: Kanishka VaishSenior Editor, LexLife India.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s