JUDICIARY & LEGAL PROFESSION: THE UNPOPULAR AREAS OF GENDER DISPARITY by Harini Balasubramanyam, C. Ooviya & Chetna Verma

Authors:

1. Harini Balasubramanyam^[1], Student at VIT School Of Law, Chennai
2. C. Ooviya^[2] , Student at VIT School Of Law, Chennai
3. Chetna Verma^[3], Student at VIT School Of Law, Chennai

ABSTRACT :

“Everybody is equal in the eyes of law” a very popular statement used to define the fairness of law. There is a constant battle for equality and respect battled by women in this country. Is equality and fight for equality only confined to the public and not the judiciary?  The courts, which are no less than land of worship, had no women representation in the judiciary for many years, and that strikes the gong of imbalance or inequality. There is always  the battle of sexes happening in every field which is unfair. The opportunity pedestal cannot be a steep cliff for one and straight plains for the other. Let’s take the scenario of our Indian Judiciary, wherein the Supreme Court has evaluated the ratio of judges in the High Courts as 87.63% men and only 12.37% women. Fathima Biwi, from Kerala who started her career as a Munsiff Judge  was the first person to be appointed as a Supreme Court Judge in the year 1989 after 39 years of the establishment of Supreme Court which was male dominant till then. This paper is an analysis on the underrepresentation of women in the Indian judiciary, and why do we need more women on board, discussed along with statistics and the reason behind the faded ratio.

INTRODUCTION:

The Indian judiciary has always seen men in the society take up the prestigious and entitled seat of a Judge. The writers or the draftsmen of our great Indian Constitution kept in mind ‘equality’ as the primary point and made sure it becomes an undisturbed Fundamental Right at any point in time. Later on, proceeded to discuss the importance of equality in terms of development of the nation. The number of women, who have reached heights, battling oppression, patriarchy and harassment could be counted with fingers on one hand. Even though the law is very liberal and gives everyone the freedom to explore lives in their own way, the society has never backed out from conditioning women that they are always enlisted in the weaklings’ list.

The Indian courts have been failing in sorting out the pendency of cases and delivering the judgment in time. Over a  time course of 18 months, which is between October 2017 and April 2019, the Supreme Court has evaluated the ratio of judges in the High Courts as 87.63% men and only 12.37% women. The actual problem starts with the individual high court collegiums that  nominates the candidates to the Supreme Court.

Less than 28 percent of judges in India’s lower courts are women, and this attributes to their  under representation in  the higher levels of the judiciary. A new study, which examined 15,806 judges within the lower judiciary, found that only 4,409 of them were women. Through its findings, a stark picture emerges of the abysmal representation of women  within the lower judiciary, and  we can see a nearly uniform trend of the proportion of ladies judges decreasing together moves up levels of lower courts.^[4] Women are said to make better decisions and have rationale while they take actions, considering this characteristic trait inherited by all Women, there must be more women judges, but the situation is quite the opposite. As stated in the above statistics there is a very meagre percentage of women in judiciary. The reasons might be different and most of the time, it is the sociological aspect that puts the question under the rug. It is not a news that women are suppressed for all these years and the development is a slow process, we will further see what are the situations that put women to decide their career and why do women always consider themselves unfit for the job.

WOMEN IN HIGHER JUDICIARY:

The Supreme Court of India was established in the year 1950, it is the court of highest order in the country and sits in the capital Delhi. In  70 years of its establishment, the Supreme Court till date hasn’t had a woman serving as its  Chief Justice. All the 47 Chief Justices of India, until now  have been men and in the upcoming  years too, the chance of seeing the appointment of the first women Chief Justice has a very remote probability. Justice Fathima Biwi, from Kerala who started her career as a Munsiff Judge  was the first person to be appointed as a Supreme Court Judge in the year 1989 after 39 years of the establishment of Supreme Court which was male dominant till then. After her retirement, in an interview when she was asked why there are less number of women judges in the Indian judiciary she said, “There is no scarcity of competent women to be appointed to the  Supreme Court. There are competent women who can be considered and appointed as judges to the SC and it is for the executive to do it”. The second woman judge  to be appointed in the Supreme Court was Justice Sujatha Manohar, from Maharashtra, she was a direct recruitment from the bar in the year 1994. The third woman Justice serving  the SC was Justice Ruma Pal, yet another direct recruit from bar to join the High Court of Madhya Pradesh in 1990 . She was  later appointed as a  judge of the SC in the year 2000. After 10 years, the Supreme Court witnessed its 4th woman judge in the year 2010 with the appointment of Justice Gyan Sudha Misra from Patna.  Justice Ranjana Desai was appointed in the year 2011, after serving as a judge in the Bombay High Court through direct recruitment from the Bar. Justice Banumathi, from Tamil Nadu was the 6th serving women justice of the Supreme Court appointed in the year 2014. Justice Indu Malhotra,  was a former senior advocate of the SC before being recruited as a  judge of the Supreme Court in the year 2018. Followed by her, in the same year (2018) Justice Indira Banerjee from Kolkata was appointed as the 8th woman judge of the Supreme Court. As of calendar year 2019-2020, out of 25 High Courts in India, the High Court of Jammu and Kashmir is the only High Court to have a woman Chief Justice.

THE PROCESS OF APPOINTMENT OF JUDGES :

The Indian judicial system consists of the Supreme Court, High Courts and the lower district level courts. For the appointment of the Chief Justice of India, the senior most sitting judge of the Supreme Court is considered. The Union Minister  of  Law, Justice and Corporate affairs would seek the recommendation of the current Chief Justice at an appropriate time before the end of his term of office .The  current CJI’S recommendation is then handed over to the Prime Minister who then advises the President on the appointment. It is finally the President who after consultations issues the appointment order.

In the matter of appointment of judges to the Supreme Court, the Chief Justice of India sees  whether such a vacancy arises (the composition of Supreme Court according to the constitution of India is 31 including the Chief Justice of India) and gives his recommendation for appointment to the Union  Minister of  Law, Justice and Corporate Affairs. This recommendation is formed by the Chief Justice after consultation with the four most senior judges of the Supreme Court called the collegium. Their recommendation is later handed over to the Prime Minister by the Union Minister who in turn advises the President on the appointment of a Judge to the Supreme Court to  fill up the vacancy.

The High court of a  state is  the superior authority of that  state having an appellate jurisdiction to try the cases of the lower courts. There are presently 25 High Courts in India and each High court has a Chief Justice , appointed by the recommendation of the Chief Justice of India in consultation with the governor of the state on which the concerned High Court sits.For the appointment of a High Court Judge there exists a High Court Collegium , which consist of the Chief Justice of that High Court and two senior most High Court Judges, the state government is also permitted to give its recommendation of names or any suggestions to the collegium,. The recommendation of the high court collegium is then sent to the Governor of the state, who then forwards it to the Union Law Ministry. The Law Ministry forwards these to the Supreme Court Collegium for the appointment of High Court Judges which consists of the Chief Justice of India and two most senior judges of the supreme court. From here the recommendation reached the president for appointment via the Union Law Ministry . The judges in the district level are appointed through the Judiciary Services Examination conducted by the respective states as and when the vacancy arises.

Yet another important source of appointment is  through the bar, after the completion of minimum 7 years  of practice.  At the High Court level,  a practicing advocate should have completed a minimum of 10 years of well established practice, in order to be considered for direct recruitment to the post of a High Court Judge.

TABULAR REPRESENTATION OF DATA AS ON SEPTEMBER, 2020

The below table depicts the total number of male and female judges across each High Court in India. This data had been collected by individually sourcing out the information from the official High Court website of each state. A separate tabular column indicating  the way of appointment of female judges  is also created for the purpose of determining the fact as to how many women judges have come through promotion from the lower judiciary and the number of practicing advocates at the bar  who had been direct recruits to being appointed a High Court judge.

From analysing the above table, we can derive that out of 71 present women judges serving across the various  High Courts, 45 of them were directly recruited and appointed as High Court Judges from the Bars of their respective state. The reason behind the less number of women judges from the lower judiciary making their way to the higher judiciary can be due to the merit and seniority factor. As on september 2020,  Justices Indu Malhotra and Indira Banerjee  are the only women justices serving in the Supreme Court. Justice Indu Malhotra is ranked at 13 in the seniority list with the term of office ending in 2022 and Justice Indira Banerjee is ranked 14 with the term of office ending in 2021. With the termination of the present Chief Justice of India , Justice Bobde’s term in 2021, there are about 12 judges in the seniority list ahead  of both the women justices. Owing to the fact that their term of serving  ends by 2022, India is  yet to see its first woman Chief Justice in the next few years.

Even if the  women Judges serving at  present at the High Courts get an opportunity to be elevated to the Supreme Court, they would rank low in the seniority list and their term would come to an end before reaching the top seniority position. This stands as the main issue adn the biggest reason why women in the judiciary are underrepresented. This can either be discrimination, while recruiting from the bar or the fact that comparatively less women appear for the judicial exams. Many women litigants have raised voices against the misogynistic views expressed at  them by their male counterparts. Even from the aspect of a client, their preference is a male advocate to argue their cases as they are quite skeptical in handing over their cases to women advocates. A few advocates have successfully made up to being senior counsels overcoming all these gender biases and whereas a few are reported to have later dropped their profession.

Former Supreme Court judge Sujata Manohar said the inability to get cases is a main reason why women are losing out on judgeship. “Women still find it difficult to get litigation work. As a result, there are very few successful women lawyers practising at the bar. So women lawyers rarely figure among lawyers from the bar being considered for appointment as judges of the High Courts”.^[5]

DISCRIMINATION TOWARDS WOMEN IN THE LEGAL PROFESSION

With regard to the legal profession, not many women are involved and especially in the judiciary there is a visible dip in the ratio of women with men. It is always a question that why are not many women comfortable getting into jobs that provide at most job security and  other benefits, as in the case of  government jobs. In a third world country like India, where most women get married at a very early stage of their lives and do not have the scope of dreaming a life for themselves, it is quite obvious that the employment sector  ends up having less number of women. But, when compared with other departments it can be said that women in Judiciary are unimaginably less, to an extent where we have not had a single woman to be on the seat of Chief Justice of India. It is very saddening that even after having seen Chief Ministers, Governors, Members of Parliament, Prime Minister and President posts given to women at least once, the Supreme rule, the Judiciary is still left with questions.

The selection process for Judges and the collegium system is also one of the reasons why there aren’t many women on seats. It took almost forty years for a woman to be placed as a Judge, Fathima Beevi and 68 years for a directly appointed Judge at the Supreme Court, Indu Malhotra. This sluggish progress is not only the women’s fault, the society as whole has picturised and conditioned women to play the Motherly character and anything said and done beyond the limits, they are given the least respect. Mainly because women are portrayed to not be responsible, and not playing the role of a homemaker and taking care of the family which is what she is ‘supposed’ to do. Indira Jaising, First woman Additional Solicitor General had spoken about being harassed at the workplace and suppressed because she was a woman. Peculiar incidents like, being looked down at by the Judge himself, for being a woman that has short hair and discriminated by colleagues, so on and so forth. Usually, second-generation lawyers get to reach better positions than first-generation lawyers who  face struggles coming up and finding an equal pedestal, this sounds facetious to the male lawyers and the Judges at the court.

Also, when judges can be recruited from the bar, their main preference is seniority in practice, performance and knowledge. When women are not given equal work or the exposure, be it a law firm or a senior advocate or the client themself, there is less chance of climbing the ladder. The opportunity pedestal cannot be a steep cliff for one and straight plains for the other. Not just the environment is to be blamed, but the pre-built structure of the society feeding inacceptance in people’s brains that lead to troubles like, sexual harassment at work place, the unavailability of clean toilets for women and the refusal of their senior counsels to permit them to arguing or appearing and just limiting them to office desk works and these are the most commonly cited reasons for the less number of qualified women practitioners are the bar.

STATISTICAL INFERENCE

A recent study conducted by All India Ministry of Human Resource Development, has reported that the total number of UnderGraduates in law are circa 3.8 lakhs out of which only 1.1 lakh are females.^[6] That brings us to the ratio of 44 females per 100 males. And the approximate enrolment in Master of Laws being 873 female and 1,604 males, this seems to be pretty close and almost equal to the number of  males that choose to opt for post graduation in Indian universities itself. Nevertheless, the backward community, specifically the SC/ST seem to have not made use of the reservation because there is an imbalance in the numbers, precisely 83 males and 38 females. This brings back to the discussion about how progress has no equal widespread and it is quite slow. Communities that lack exposure have lesser progression paving way to slowed down development and women empowerment.

 REASONS WHY WOMEN BACK OUT FROM JUDICIARY

Judiciary as a career has a great scope for achievement and provides  the highest job security and few other perks from the government. A woman, to hold her head up there is no better opportunity in this legal profession rather than being a judge. There are a number of  reported situations of women counsels being harassed, discriminated against and mocked at the workplace and even after being a lawyer herself, she becomes helpless in these situations because of the only factor, ‘contempt of court’. Senior Counsel Indira Jaising, was also subject to mockery, of the most irrelevant part of her profession. She was mocked for having short hair and told by the judge that, and I quote, “your hairstyle is more attractive than your argument”. His Highness was considering the statement to be a joke, rather than considering it as an unnecessary, derogatory and discriminatory statement. On the flip side, when women become the judges, they definitely are given utmost respect and treated with dignity, moreover they have equality at the bench. Judiciary is an entity holding responsibility and owes social accountability to be the picture of equality that it claims to be. Even after having a convincing employment, according to our analysis women step out of few main reasons:

• Social constraints and Family Background: One of the most common problems in India is the social constraint and repeated preaching by the society that women are born to be married and serve as a reproductive machine to men and enslave themselves to the system of patriarchy. They belong nowhere but in Kitchen and the purpose of life is to serve the members of the house and make a home. Maybe this is not the case everywhere and we are evolving through the ages, learning and unlearning ethics and freedom. But this does not suffice, there are many women locked up with the chain restricting themselves from going a step forward. Focussing more on the least developed communities prevailing in India, that can think no far than basic survival.  Situations like these can be the reason why the ratio of women keeps fading through the stages of profession. A woman is always associated with being a wife that clings around her husband and wishes nothing but his goodwill and his growth.
• Domestic confinement: the progress in a female’s career is always looked on par with her marital status, pregnancy and prodigy. On close observation we can find that, at the next stage of a woman’s career she is given added responsibilities, like getting married, bearing a child and raising a child. While, the partner offers to take merely 10-20% of the responsibility, rest left in the hands of the mother itself. For any human being pressure from 360 degrees becomes intolerable and eventually ends up leaving her career and confines herself to domestic limits by not climbing any more steps on the ladder.
• Sexual harassment at workplace: Being harassed sexually at workplace is not new and unheard. In a Forum conducted by the International Court of Justice, the participants at the forum, infact, many participants recalled the fact that they or female colleagues had faced harassment and discrimination because of being female. They also noted that often women judges are subject to additional scrutiny and criticism, as well as gendered forms of intimidation. ^[7]
• Transferability and its unacceptance: Any woman that gets a transferable job is obliged to pass over the offer and stay where the family is. She is faced with a lot of circumstances that give pressure and finally give up on individuality and independence. Government jobs are transferable in nature, since they are termed to be public servants and government employees, the list of job qualifications needs the checkbox ticked for serving the public through India. In most parts of India, women are not allowed to move places, and it is still considered to be unnecessary and sinful for women to leave home for any purpose. As mentioned earlier government jobs are transferable and it needs the employee to get transferred to the place assigned, that is how judiciary promotes people also. Signs of denial are shown at the elementary stages of planning for judiciary, foreseeing a woman holding a job away from home and responsibilities. Even after the government is liberal in appointing public servants at the state of their preference, the whole league of taking up judiciary becomes unacceptable and refused.

REFORMS INITIATED FOR SCRAPPING THE DISCRIMINATION

In the year 2015, Advocate Indira Jaising had filed a Public Interest Litigation^[8] seeking guidelines for designation of senior advocates. Appointment from the Bar is given to the CJI and the Judges which often include nepotism, favouritism and some other unlisted, personal choices of the selection committee. The main motto of this petition was to question the secrecy and opacity that the amendment of the Advocates Act, 1961 might bring in. According to this amendment, the Judges will get the reach of the applicants’ forms and the decisions will be taken through secret ballots, and voting capacity which leads to a lot of secrecy. There is no discussion, no minutes of a meeting and this stands unconstitutional, as it violates Article 14, 15, 21 and it needs to be declared null and void. She also argued saying the procedure was unequal and unfair. In her arguments, the highlights were to implement a Permanent Committee for the evaluation consisting of higher officials and scanning through the qualifications of the candidates along with an interview, a blindfolded selection process cannot be accepted.  This case was dismissed, by pronouncing of the judgment by former  CJI, Ranjan Gogi himself, that there shall be  a Permanent committee consisting of the CJI, Attorney General etcetera for evaluation and the scan through the reputation of applicants, experience, and many other ways to scrutinise the process of selection. This way there is fairness in the process of selection. In the former way of selection there was no fairness and it was unjust, as we can clearly see women judges were not part of consideration and the threat that this might continue, and since there is transparent process now, there are less chances that unqualified personnels through recommendations and bribe come up to the position that they do not deserve.

In comparison with other departments that provide similar perquisites and job security, we have relatively a decent percentage of women working. Especially when we look into the Government sector, there are a lot of women who work at the Railways, Civil Services, Government companies even the Army, Navy and Air Force the most dangerous jobs that women were forbidden to enter have more women now. The Women’s Reservation Bill was introduced in the year 2008, for having a 50% reservation for women in the Lower House of the Parliament and the Upper HOuse of the Parliament. This way women have leverage and vacancy to get inside, unlike keeping options open like judiciary that is filled by discrimination towards women. In my opinion, I would say this Bill is flawed because it is only confined to one form of government and does not include Judiciary and Executive. It needs to open the wings and cover the Judiciary, otherwise it is very difficult to see a woman CJI in the near future.

THE IMPORTANCE OF A GENDER DIVERSE BENCH:

B. R. Ambedkar once said, “I measure the progress of a community by the degree of progress which women have achieved”. This is a very serious statement that needs to be considered by everybody. The statistics discussed above, as of 2020, clearly shows that there hasn’t been any great progress of women in judiciary and it is very unlikely to see a woman Chief Justice of India in the near future. Women’s right to equality is very important for the future, in terms of decision making authorities, as it is not only essential for women empowerment but also development and advancement of society as a whole. ^[9] “In addition 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.”^[10]

Justice Sujatha was one of the sitting judges among  two other honourable judges, in the landmark case of Vishaka & others vs The State of Rajasthan and others.^[11] The court formulated comprehensive guidelines for the protection of women from workplace harassment  called the “Vishaka Guidelines” which was the then law. These guidelines  later paved way for the legislation enactment of “The Sexual Harassment of Women in the workplace Act of 2013.

Justice R Banumathi, was the former Chief Justice of the  High Court of Jharkhand . Her most notable judgment includes being on the judicial bench that confirmed death sentence for the accused in the 2012 “Nirbhaya” gang rape case, even after the accused men appealed to re-consider their death sentences. Justice Banumathi questioned that if this case was not the rarest of rare to award death penalty, then which case can fall under it. She asserted that convict’s background, age, no criminal record and good behaviour in prison cannot outweigh aggravating circumstances. Both Justice Sujata and Justice Banumathi’s opinions and judgments indicate that having a woman in the decision making process of the courts allows and paves way to newer and more critical and contextual lens to gender related issues, especially crimes involving violence against women.^[12]

COMPARISON OF THE SAME SITUATION WITH UNITED STATES OF AMERICA

The issue of judging with a gender perspective has been a special focus of the International Association of Women Judges, a non-governmental association with over 6,000 members in more than 85 countries worldwide. Only by identifying bias during a purposeful and systematic way can it’s eliminated. Over the years, our members have participated in judicial training on the interpretation and implementation of law during a manner that’s free from gender bias and conforms to international and regional treaties and conventions. At four recent annual international conferences, sponsored by the National Supreme Court of Justice of Mexico, many judges – men and women – have engaged in rigorous analysis and thoughtful discussion of court decisions from round the world regarding gender bias. It’s an ambitious and galvanizing commitment to gender equality at the very best level of the judiciary.

Judicial independence is prized because it creates the space necessary for impartial judgment, but it doesn’t ensure impartial judgment. We all know that being sworn in as a judge doesn’t magically insulate us from biases and misunderstandings, something all individuals carry as a results of their particular experiences. As neurologists and psychologists have shown us, we are all suffering from unconscious or implicit biases unknown even to ourselves. While there’s no simple antidote to the present problem with regards to the judiciary, diversifying the life experiences of these who adjudicate cases improves the probability that biases and misunderstandings are going to be checked.

Changing the long-established demographics of a court can make the institution more amenable to think about itself during a new light, and potentially cause further modernization and reform. As a court’s composition becomes more diverse, its customary practices subsided entrenched; consequently, the old methods, often supported unstated codes of behavior, or just inertia, are not any longer adequate. this will be an auspicious time for careful review, for the adoption and implementation of updated codes of judicial conduct, and for training judges consistent with norms that are clearly stated. The presence of latest faces, with new voices, is usually the foremost compelling spur to seem at things afresh and make changes long overdue.

The International Association of women Judges is already working, and prepared to affix forces with others, towards a stronger ethical judiciary.” 

CONCLUSION

It has become almost rare to see a woman as a judge at the Hon’ble Supreme Court, and the reasons are pathetic. At a law school there are a lot of female graduates as shown in the data, but almost half of them either settle for less, for the sake of their family or end up lawyering with minimal success rates. The second generation lawyers are the ones who get to see the light of the day, and hence we have great lawyer activists and high potential judges. In a way they inspire the rest to touch heights, in all possible ways, by breaking all the hurdles and winning the battles. Lacking women at the bench is lacking perspective in making decisions, and the judiciary decides people’s fate and is considered the most honourable and a prudent person’s job. Women backing out from becoming a judge is the society’s loss from having a different perspective, like we have seen in many landmark, revolutionising judgments in recent times. Undoubtedly, the Indian government provides its employees with perks guided by the statute and the Constitution, but traits like deduction, loyalty, sincerity can only be attracted through glamorous hikes and bonuses for motivation.  Reformative bills can be implemented like reservation for women in judiciary upto a percentage which is workable. This Bill will include clauses where women get benefitted out of the Bill and give them the confidence to take it up seriously, as the judiciary needs more women. When women are identified to have genetic characteristic traits of empathy, compassion and strong decision making skills, that definitely is required in few scenarios where in male judges might go off track and lose out on serving justice to the deserved. This shall be limited, not a very prolonged perk, but until there is a stability and equality in the bench, may be for another 50 years. The judiciary will witness tremendous growth when there is a new flash of perspective, and more women added to the bench.

REFERENCES

^[1] I am a young enthusiastic 4th year student, currently pursuing my BBA.LLB course at VIT School Of Law. The streams of law that interest me the most are Arbitration, Constitutional Law and Taxational Law. Email: harinibalanot@gmail.com

^[2] I am a pre-final year student of BBA.LLB at VITSOL. The areas of law governing the international and national Human Rights, ADR and Data Privacy are my key interests. I look forward to blossoming into a good litigation lawyer in future. Email: cooviya.2017@vitstudent.ac.in

^[3] I am a fourth year student pursuing Law and Business Administration (BBA.LLB) at VITSOL. Email: chetna.verma2017@vitstudent.ac.in

^[4] Kohli, K. (2018, August 16).

“ Only 28 percent of judges in India’s lower courts are women, and there’s no sign of change.” Retrieved from https://theprint.in/india/governance/in-india-only-28-of-lower-court-judges-are-women/35855

^[5] Sonia Mishra, ‘the Sexist Bar’, The Week, November 13, 2016-

^[6] Ministry of Human Resource and Development, ‘All India Survey on Higher Education (2015-16), Department of Higher Education Delhi, 2016

^[7] Women And Judiciary (Geneva Forum series no.1) pg. 6

^[8] Indira Jaising V. Supreme Court of India, Writ Petition No. 454 of 2015

^[9] CEDAW General Recommendation 23, para 17

^[10] Women and the Judiciary (ICJ Geneva Forum Series no.1), pg. 20

^[11] AIR 1997 Supreme Court 3011

^[12] Tejeswi Pratima Dodda, ‘Part 1: Missing Gender Diversity in the Indian Judiciary’ Apr. 7, 2018- https://factly.in/missing-gender-diversity-indian-judiciary/