Gist of Rajya Sabha TV : Women in Judiciary

Published
5th Dec, 2020

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Introduction

Stressing the need for greater gender sensitization among members of the judiciary, Attorney General K K Venugopal said that “improving the representation of women in the judiciary could go a long way towards a more balanced and empathetic approach in cases involving sexual violence”. Venugopal was replying to a plea questioning the bail conditions imposed by the Madhya Pradesh (MP) High Court wherein an accused was asked to get a Rakhi tied by the victim as a condition for enlargement on bail. The petition filed by nine women lawyers led by Supreme Court advocate Aparna Bhat had cited orders from other High Courts to highlight the non-empathetic approach of judges while dealing with cases of sexual violence. Venugopal, in his written submissions, said judges need to be trained to place themselves in the shoes of the victim of sexual violence while passing orders. They need to assess the crime as if it had been committed to a member of their own family. He pointed to the dearth of compulsory courses in gender sensitization in law schools. In this edition of The Big Picture, we will analyze the issue of women in the judiciary.

Edited Excerpts from the debate

Misogynistic Judgments

The Madhya Pradesh high court asked a 26-year-old man, accused of molesting a woman, to get a ‘rakhi’ tied by her.
The bedrock of judging is the application of the judicial mind whilst deciding cases. To administer justice fairly the judges must dissociate themselves from the stakes of the case. They must be dispassionate and impartial.
The law holds the power to implement social change. The spirit of the law as a tool of social change challenges archaic social norms. Social transformation is at the essence of the Indian constitution that envisages progressive morals i.e constitutional morality.
But this powerful potential of law can be undone when judges apply their morality and fail to uphold constitutional morality.
It is not the function of the courts to get into questions of shame and dishonor or play the role of a matchmaker.
The judiciary must endeavor to not only follow the letter of the law but also implement its spirit on gender justice.
In the given situation, increasing women judges could help in dealing with the non-empathetic approach of judges while dealing with cases especially sexual violence.

Why Women's participation in the Judiciary matter?

Powerful assurance: Women judges enhance the legitimacy of courts, sending a powerful signal that they are open and accessible to those who seek recourse to justice.
Increasing public trust: Women judges are strengthening the judiciary and helping to gain the public's trust.
Enhancing quality of justice: Female judges and lawyers contribute far more to justice than improving its appearance: they also contribute significantly to the quality of decision-making, and thus to the quality of justice itself.
Empathic perspective is the judgment: Women judges bring those lived experiences to their judicial actions, experiences that tend toward a more comprehensive and empathetic perspective- one that encompasses not only the legal basis for judicial action but also awareness of consequences on the people affected.
Reduced discrimination and biases: With more women in the judiciary, gender discrimination and bias will reduce. Greater gender diversity could change the culture of the system positively.
To uphold the dignity of women: When it comes to the distinct perspectives that women judges have brought to the bench, several judgments that uphold the dignity of rape victims are noteworthy.

For example

An all-women bench of the Supreme Court comprising Justice R. Banumathi and Justice Indira Banerjee in State (Govt. of NCT of Delhi) vs Pankaj Chaudhary held in 2018 that even if “the victim was habituated to sexual intercourse”, it could not be inferred that she was a “woman of loose moral character” and that even if the prosecutrix was of “easy virtue”, she has right to refuse to submit herself to sexual intercourse.
The judgment stands in contrast with and ignores a 2016 all-male verdict in Raja vs the State of Karnataka with similar circumstances wherein the judges had imputed an implication to the victim being “accustomed to sexual intercourse”.

What adds to the challenge?

Poor representation: Representation of women judges in the judiciary is poor. There has been never a woman Chief Justice of India.
Low number of women advocates: Since lawyers elevated from the bar to the bench form a significant proportion of judges in the high courts and Supreme Court, it is worth noting that the number of women advocates is still low, reducing the pool from which women judges can be selected.
Poor retainment: At the entry-level in law schools and the profession, the ratio of men and women is 50:50. As their career advancement, the ratio of women drops with each step upward. Not just at the level of judges, even among senior advocates, women comprise only a handful.
Societal issue: The current situation is a societal problem, and it reflects societal factors beginning in early childhood.

What is the need of the moment?

Gender sensitization: There is an urgent need for greater gender sensitization among members of the judiciary.
Equality for women: Achieving equality for women judges or advocates, in terms of representation at all levels of the judiciary and on policy-making judicial councils, should be the goal.
Continuity in the profession: Society must give up its ‘strict gender roles’ and stereotype to enable more women to take up or to continue court practice even after marriage.
Judicial diversity: 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.
Due consideration to poor retainment of women in the system

Conclusion

This is high time, the system should truncate celebrations about appointments of women and instead take constructive measures to provide women a level playing field in the judiciary.

Value Addition

What is the current scenario?

In a country where almost 48 percent of the population is women, including the current women workforce, less than 3.3% of the women have made it to the highest courts of India.
As Justice R Banumathi retired as a judge of the Supreme Court (SC) of Indiain July 2020, the top court is reduced to two women judges among the 31 sitting judges.

Right available to a woman

The rights available to a woman in India can be classified into two categories:
- Constitutional rights: The constitutional rights are those which are provided in the various provisions of the constitution, which is the basic law of the land.
  - The right to equality and equal protection of laws [Article 14]
  - The state shall not discriminate against any citizen of India on the ground of sex [Article 15(1)].
  - The state is empowered to make any special provision for women. In other words, this provision enables the state to make affirmative discrimination in favor of women [Article15(3)].
  - No citizen shall be discriminated against or be ineligible for any employment or office under the state on the ground of sex [Article 16(2)].
  - Traffic in human beings and forced labor are prohibited [Article 23(1)].
  - The state to secure for men and women equally the right to an adequate means of livelihood [Article 39(a)].
  - The state to secure equal pay for equal work for both Indian men and women [Article 39(d)].
  - The state is required to ensure that the health and strength of women workers are not abused and that they are not forced by economic necessity to enter avocations unsuited to their strength [Article 39(e)].
  - It shall be the duty of every citizen of India to renounce practices derogatory to the dignity of women [Article 51-A(e)].
  - One-third of the total number of seats to be filled by direct election in every Panchayat shall be reserved for women [Article 243-D(3)].
- Legal rights: The legal rights, on the other hand, are those which are provided in the various laws. The Constitution of India pledges equality of status and opportunity for men and women.
Being a custodian of the constitution apex court has been trying to fulfill constitutional objectives by numerous pronouncements in several cases.

The Shocking Numbers

Out of the 656 sitting judges in 23 High Courts (barring the High Court of Andhra Pradesh), only 73 are women.
This is only 11.12 percent of the number of sitting judges.
Out of the 23 High Courts, five of them don’t have even one woman sitting judge. Out of 2,791 ‘past judges’ in the High Courts (barring Madras), only 102 are women.
This accounts for only 3.65 percent of the total number.

Items for the box (Number)

Women appointed as the Chief Justices in the past – 0
Female judges from the North-eastern states in the Supreme Court – 0
Number of women judges in the Apex Court (out of 34) – 2 (Justice Indu Malhotra and Justice Indira Banerjee)
Women who have served as Supreme Court judges since 1947 – 8
Women in lower courts and high courts – 27% in lower courts and 11% in high courts
Women judges in the Justice Verma Committee which was responsible for formulating India’s rape laws – 1 (Justice Leila Seth)
Women on the three-judge bench responsible for setting guidelines for sexual harassment known as the Vishakha Guidelines – 1 (Justice Sujata Manohar)
Women judges on the 13-judge bench in the landmark Kesavananda Bharati case – 0
Women Office bearers of the Bar Council of India (out of 20) – 0
Women who have become the chairperson/ vice-chairperson at the Bar Council of India – 0

Women Chief Justice of India

It is equally poignant to note that India has never seen a woman Chief Justice of India.
Thirteen high courts share the distinction of not having had a woman Chief Justice (barring present chief justices).
At present, only Jammu & Kashmir High Court is headed by a woman Chief Justice.