GENDER INEQUALITY IN JUDICIAL APPOINTMENTS: SHOULD WE RESERVE SEATS FOR WOMEN?
Author: Muskan Prasad, III year of B.A.,LL.B.(Hons.) from Amity Law School Noida
India is a diverse country but still, we see that number of male lawyers and judges is more in the judiciary than thefemale lawyers and this has often led us to ask questions as to why the strength of women lawyers is so less. In this paper, we will tryto discuss the causes or reasons behind gender inequality when it comes to judicial appointments and will also look into the current scenario of the representation of women and its statistics. We will also be discussing the need for gender equality in the judiciary and how it can be achieved.
India is a diverse country with diverse customs and traditions and more significantly it is a land of diverse opinions. even after having so much diversity when we try to talk about gender diversity it is seen that there is a huge gender gap which exists in every sect of the court whether it is the lower or higher court.
The fact is that since the past, India has always been a male-dominated society and has not considered or rather has not given much importance to women as a result of which women have not been allowed to play the roles that they are capable of playing in different walks of life, including the judiciary.
Though a lot has changed, and women are making their presence felt in every field, yet gender inequality prevails in every personal as well as professional sector. Gender inequality in judicial appointments is one such incident. Proper representation of women in the judicial appointment is important, it is an integral part of the government and can pave the way or remove this inequality in other fields too, but the goal seems far-fetched.
Even if everything goes as planned and Justice B V Nagarathna turns out to become the first women CJI of India in the year 2027 then also this would not make much of an impact or difference as it would be about a month before she retires so practically, she won’t have much time. Thus, these appointments are only symbolic and won’t create much ofan impact.
Whenever a new Chief Justice takes over, they need time to settle down, the first two months are generally spent on administrative work, and with just onlya few months before retirement, she won’t be able to do much of a thing. From 1950 when the Supreme court was established, it took 40 years for Justice Fatima Beevi to be appointed as the first female Supreme Court judge in 1980 “ I have opened the closed doors” Justice Fatima Beevi said in 2018.This had brought a positive impact but still, itwasn’t much of an impact to actually change the minds of the people.
PRESENT REPRESENTATION OF WOMEN IN THE JUDICIARY
In the present scenario, the representation of women in the subordinate judiciary is less than 30% in women. Even, out of the total 25 High Court in India, 563 are male judges and 70 are women judges which constitute only 11.5%. In the Supreme Court also, the percentage of women judges is only 11% i.e., only 4 women judges and in 6 of the High Courts namely Manipur, Orissa, Meghalaya, Patna, Tripura, and Uttarakhand have no present representation of a single women judge in the High Court.
Out of 1.7 million advocates, only 15% are women and 2% are elected representatives in the state bar council are women. Through one of such data, we get to know that there is no women representative in the state bar council national committee.
REASON BEHIND THE GENDER INEQUALITY IN JUDICIARY
Indiaas a nation has been battling gender biases and prejudices since the time it gained independence. Indian judiciary does not paint a different picture. The higher judiciary’s approach towards the appointment has also and always been criticized for nepotism and hypocrisy by the members of the judiciary themselves. Ever since the establishment of the Supreme Court of India till the year 1989 all the 93 judges who have served the Apex Court have all been men. Legal education has been off-limits for women for many decades. The history has witnessed that it was only after the passing of the Legal Practitioners (Women) Act, 1923 that the bar or restriction on women for practicing law was abolished and Indian women were granted the right to take up the legal profession and practice as Advocates in the court of law. Few of them who actually made a difference by seeking legal education did not have a smooth road to walk on.
It took almost four decades after the establishment of the Supreme Court of India that, for a woman to become a judge of the Supreme Court. Practicing law has always been, identified with the men in black robes, so when women started venturing into this system, they had to identify themselves and keep up with the set of male standards that characterized a practicing advocate or judge.
Therefore, there has never been any initiative in understanding the fact as to what women can contribute to the judiciary or judicial system because they have so far always been contesting in a professional set up which was notgender-neutral. It is seen that the number of women judges in lower courts is higher than that in the higher courts
This reflects that when it comes to the selection or appointment of judges on the basis of competitive examination women judges have always proved to be better but when it comes to subjective assessment for the appointment of judges in the higher judiciary the figures are way too less. This reflects that there is no dearth of meritorious women candidates when the assessment is based on competition.
Moreover, the number of women representatives in the State Bar Council is only 2%, and in the National Bar Council its nil which needs urgent correction. Besides, there is an uncomfortable environment in the court, crowded courtrooms, lack of creches, lack of sitting places, washrooms are some of the major issues which are unfriendly to women lawyers. Among 6000 courts across the country, only 22% have separate toilets for men and women.
NEED OF GENDER EQUALITY IN JUDICIARY
It is a true fact in every sense that,the inclusion of women judges and lawyers will substantially improve the quality of justice delivery by giving the judiciary a diverse perspective in many ways. The higher judiciary not only is the final dispute resolution body, but it is also into determining the policies and settling up the good governance mechanism.
Presence of women in the judiciary or the judicial system symbolizes participatory democracy. Diversity of opinions gives an inclusive characteristic to the judiciary and signals equality of opportunity for all; women’s participation in the judiciary will also promote equality in other areas too. Female judicial appointments especially at the senior level can shift gender stereotypes thereby bringing changes in the attitude and perception towards the appropriate roles of men and women.
This in turn can also facilitate greater representation in other decision-making positions as legislative and executive branches of the government. Gender equality in the judiciary is the need of the hour not only because it is a right for women but also because it is a right for the achievement of a more just rule of law. Women judges strengthen the judiciary and help gain public trust.
Moreover, they bring those, lived experiences to their judicial actions, experiences that tend towards a more comprehensive and empathetic perspective and approach. This type of gender perspective enhances the fairness of the adjudication which ultimately benefits both men and women.
Improving the representation of women in the judiciary is of crucial importance and have to go a long way toward a more balanced and empathetic approach in cases involving sexual violence.
For instance, in an all-women bench of the Supreme Court comprising Justice R. Banumathiand Justice Indira Banerjee in State (Govt. of NCT of Delhi) vs Pankaj Chaudhary, it was held in 2018 that even if the victim was habituated to sexual intercourse, it could not be inferred that she was a “women of loose moral character” and that even if the prosecutrix was of an “easy virtue”, that she has every right to refuseto submit herself to sexual intercourse.
This judgment stands in stark contrast with and ignores a 2016 all-male verdict in Raja vs State of Karnataka with a similar contrast as the above case wherein the judge had imputed an implication to the victim being “ accustomed to sexual intercourse”.
Changing the long-established demographics of a court can make the institution more amenable to considering itself in a new light and potentially lead to further modernization and reform. There is a must goal to achieve at least 50% representation of women in the judiciary.
There should be mandatory training for all lawyers on gender sensitization. Gender equality in the judiciary will show that the discriminatory norms against women are non-existent in the appointment of judges. A more representative gender jurisprudence would not just mean more women but in other the other hand it would increase the willingness of women to seek justice and to produce judgments that better reflect the diversity of India with experience of equal women representation in women’s judiciary.
There would be a change in the judicial culture is also in a way likely to have a knock-on effect on litigants. Women’s representation can bring in a new perspective and also help in bringing a positive change in the judiciary. For instance, a split judgment by a division bench of the Calcutta High Court in 2015 where Justice Indira Banerjee disagreed with Justice Indrajit Chatterjee’s Acquittal of a rape accused provides another example.
While Justice Chatterjee has been persuaded by the absence of external injury marks on the body of the victim, Justice Banerjee had held that “a mere act of helpless resignation in the teeth of compulsion” could not constitute consent.
In one more instance, Justice Gita Mittal was the chairperson of the committee that designed the Vulnerable Witness Project, which ensured that witnesses would not have to face the accused and could share their testimony in a comfortable and confidential space.
Advancing women’s participation in the judiciary promotes the role of gender equality in a broader way thus in turn increasing the willingness of women to seek justice and also enforce their rights.
In justice women sometimes give sensitivity to the situations by looking at them from their perspective but this is not from a specific gender point of view but from a unisex point of view. It’s high time that matters of gender equality in the judiciary be taken seriously and necessary steps should be taken as soon as possible. As said by CJI N V Ramana that “ it’s a matter of right and not a matter of charity”. Even Justice Nagarathna said that “ female appointment particularly at the senior level can shift gender stereotypes, thereby changing attitudes and perception of appropriate roles of men and women.
This 50% reservation for women in judicial appointment is of foremost importance besides other reformation reservation would act as catalyst to cover the gender gap that prevails in our judiciary. Besides, steps should be taken to make the courts women friendly. Lawyers, judges, and other judiciary officers should be encouraged to be gender sensitive as instances of sexist remark, discrimination on the basis of gender is rampant. Educational institutes should encourage women to take up law and appear for the judiciary. The Collegium of High Court as well as the Supreme Court must encourage and make efforts to get more talented women judges in the higher judiciary for serving good many years as it would reflect party in the higher judicial system and also inculcate confidence and accelerate the justice delivery system.
By achieving gender equality in the judiciary India could become one amongst the progressive nations towards the gender parity level. Most importantly women, especially women lawyers have to remember that nobody would pave the way for them but they, have to use their inner strength and work hard to pave their path. As Justice Trivedi advised women lawyers “Be a light of yourself”.
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