Is Patriarchy somewhat hitting the Bench?
Author: Khushboo Agarwal, II year of B.B.A.,LL.B.(Hons.) from ICFAI University, Dehradun
The Supreme Court of India was constituted in October 1935 and still some questions that hit the mind of many Indian, “when will India get its first female Chief Justice of India?” Do any of us have an answer to that? I feel no, it is indeed a fact that the Judiciary since the independence has witnessed the gender gap as, after 1947, only 8 women judges have been appointed as the judge in the Supreme Court of India. In 1959, Leila Seth topped the London Bar Exam and became the first woman to achieve it. Justice Fathima Biwi was the first woman judge to be appointed in the Supreme Court of India in the year 1989; it took around 40 years after the independence that the apex court of India got the first women judge. Even after the appointment of the first women judge in the Supreme Court, the gap between the appointments of women in the post of judge in the apex court seems disappointing. The next woman judge after 1989 was in the year 1994 than in the year 2000 and so on. After the recent retirement of Justice Indu Malhotra, this question hit harder. Justice Indira Banerjee is now the only female judge that will be on the Bench. She will retire by 2024 and also there seems no scope for her for being the CJI.[i]
Not only the Apex Court but also the High court was no less with this ratio. As of the recent records, India has only 82 women judges out of 1,079 Judges in the 26 High Courts of India. Currently, the Supreme Court is also setting an example of male dominance, out of 29 judges only 1 female judge. Which is as low as a percentage of 3.4% of the total present SC Bench?
So, do we need Female Judges only for the sake of equality on the bench or we have some other solid reason for the concern?
Recently many judgements in the Supreme Court, High courts and Subordinate Courts have reflected the need for women to judge in the Judicial Body. Some of the high lighting examples are:
1. The Madhya Pradesh High Court, in the order for a bail of the accused of Sexual Assault to tie Rakhi for the want of getting bail. This incident set the urgent need for women in the higher judiciary to eliminate such hearing.[ii]
2. In the Supreme Court of India when CJI Bobde questioned the accused man whether he will marry the victim? Though the circumstances were different in which this question was raised but still the question has raised fingers on the wisdom of the higher bench and this also have reflected the need of women in the judiciary to decide on such sensitive matters. A woman can best understand the situation other women are going through.
3. In the case of Rupan Deol Bajaj vs. Kanwar Pal Singh Gill, the petitioner asked her lawyer Indira Jaising as to why their case wasn’t being heard by a women's bench? as the case is related to Sexual Harassment against an IAS officer which demanded analysis and judgment from a female perspective. Surprisingly, Lawyer Indira Jaising replied that the bench didn’t have any women lawyer.
Whether this huge difference in women participation in the higher judiciary is from the initial stage?
No, More than 50% of the total Candidates that appear for the CLAT are females, but promptly the picture is worse. This percentage of women participation starts declining from the admission in law colleges to practising law, to be the judicial aspirates and finally to the Bench.
The question hits more strongly when we come across the states which are providing reservations to the women in the judiciary and still rank low while appointing them. The state of Bihar has 35% reservation, still, the strength of women judges in the overall courts is below 10%. Many states don’t have any reservation for the same, for example, West Bengal, Gujarat, Himachal Pradesh, Kerala, Madhya-Pradesh, Jammu & Kashmir, and a lot many. [iii]Which also points out the need for the centre to take the step forward to this way? But, in September 2020 the Union Law Minister R.S. Prasad has provided the public with the indication that in recent years the union is not planning to bring any reservation for increasing women participation in the judiciary. Eventually, he just proposed the Chief Justice of the High Court consider the candidates belonging to SC, ST, OBC, Minorities and women while making judicial appointments. [iv]
How can the persisting issues be resolved?
The following pointer provides some assistance to make reduce the difference:
1. Article 124(3): The one way to increase women participation in the judiciary is putting active emphasis on this sub-clause of Article 124 of the Constitution of India which allows (a) appointment as the judge of Supreme Court if an Indian Citizen has been a judge of High Court for at least 5 years or of two such courts successionally, (b) Has been at least 10 years an advocate in a High Court or two or more such courts, (c) is, in the opinion of the President, a distinguished jurist. Appointment of women especially by sub-part (c) will provide them with this golden opportunity, and also till the independence this clause has never come into force.
2. Providing opportunity in some prestigious post like Attorney General of India and Solicitor General of India. In which till the present date no women have been appointed. Breaking the glass ceiling through such a post will be a great step toward equality on the Judicial Bench.
3. Selection of Chief Justice of India through the process of Seniority Convention should not be given preference rather than the appointment must be done based on merits. This will for sure open up the gate for the women judges and then the chances of India getting its first Woman Chief Justice of India will be close enough.
Thus, this could be the concluding remark that just talking about equality in the era when women are no less to men, not giving equal opportunity to the females would be a great injustice. The statute of justice in the Indian Courtrooms is the representation of divine justice who is a woman, but still in reality the courtrooms lack women judges. Even the constitution of India says that it’s a Fundamental Right to provide equal protection of law and women should be provided with some opportunities to strengthen up their options in the judiciary likewise they are doing in the other fields. The history of male-dominated bodies’ discriminatory remarks on the women judges and lawyers will make the citizen hesitate in believing the judiciary as the protector and guarantor of laws and rights. Changing the long-established demographics of a court can make the institution more amenable to consider itself in a new light, and potentially lead to further modernization and reform. Thus, women participation in the judiciary should be encouraged and a sense of equality must be in the Temple of Justice too.