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TOPIC: General Studies 2

• Judiciary

In News: Stressing the need for greater gender sensitisation 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 on a member of their own family. He pointed to the dearth of compulsory courses in gender sensitisation in law schools. 

The Reality

The Indian Supreme Court has delivered remarkable judgments on gender identity, sexual orientation, Sabarimala temple entry and adultery. But the actual progress of the Indian judiciary should be measured by the number of women in high positions. Since Independence, India has had a woman President, Prime Minister, chief ministers, governors but no woman Chief Justice.

It took almost 40 years to have the first woman judge, Justice Fathima Beevi, and 68 years for the Supreme Court to have the first directly appointed woman judge, Justice Indu Malhotra, among six male judges. Despite three women judges currently sitting in the Supreme Court, there seems to be no likelihood that we will have the first woman Chief Justice in the near future. There are already five male judges lined up to succeed the present CJI until 2025.

Babasaheb Bhim Rao Ambedkar had said, “I measure the progress of a community by the degree of progress which women have achieved”.

In spite of their competence, hard work and struggle, women lawyers are not recognised, except for the few second-generation lawyers. Courtrooms are most comfortable making male lawyers feel like they belong there, but they don’t make women lawyers feel the same way.

Contrarily, not all women lawyers get well-paying clients. Even litigants are biased against women lawyers and they mostly prefer male lawyers with whom they can socialise well. There are many women who are in junior positions for 10-20 years and sent to courts mainly to obtain adjournments, because judges sympathise with young and women juniors. But when the matter relates to presenting strong arguments, offices send male juniors as judges take them more seriously. Moreover, clients in criminal cases feel prefer male lawyers. So, first-generation women lawyers who don’t get independent cases but intend to survive in the profession spend their entire careers as juniors in someone else’s office.

What does the number say?

• According to the Supreme Court’s list of senior advocates, only 4 per cent are women (16 against 400 men). 
• While Maharashtra has the highest number of women lawyers, senior women advocates at the Bombay High Court account for only 3.8 per cent. When the number of designated senior women lawyers is disproportionately low, the chances of more women becoming judges also remain minimal. 
• The 2019 report from the law ministry’s justice department validates this, recording the number of women judges sitting across the country’s 24 high courts, excluding Telangana’s, as mere 73 (or 10.8 per cent) out of the total 670 judges.
• Currently, no data is centrally maintained on the number of women in tribunals or lower courts.

Why does it matter?

A gender diverse bench reflects a bias-free judiciary. Many empirical studies show that having even one woman on a three-judge panel has an effect on the entire panel’s decision-making in gender discrimination cases.

Having women judges encourage more women to approach the system of law to report violence and crimes happening to them on a daily basis.

The presence of women judges from diverse backgrounds will bring structural changes in the decision-making process. Studies prove that personal values, experiences and many other non-legal factors influence judicial decisions.

If women in the judiciary hail from similar backgrounds as those of men, holding mainstream ideas and beliefs, the gender diversity has little to no payoff. Besides, the more socially diverse the judicial benches are, the stronger the judiciary is. This will improve public trust in the judiciary and increase access to justice.

Is there a way forward?

• There is a need of an effective affirmative action workplan to have an adequate number of prospective women candidates, with especial focus on the fact that they come from marginalised groups. In addition, the criterion for designation of senior counsels should also be focused upon.
• A special diversity programme is required to adopt to encourage and motivate women lawyers, the number of female students taking up law may increase but there won’t be women judges to inspire them to sustain in the profession.
• Collection of data should be initiated to determine the number of women judges in the lower judiciary and tribunals and also to determine year-wise number of senior designates by all High Courts.
• Certain law schools have the subject either as a specialisation or as an elective. Equally, the All India Bar Examination does not contain even a single question or section relating to gender sensitisation. The Bar Council of India may take necessary steps in this regard.
• Removing the minimum age for recruitment as district judge can help young female advocates from opting out of practice in favour of other services or corporate jobs. Governments should also rationalise salary and allowances of lower judiciary.

Connecting the Dots:

1. ‘The ratio of female judges to male judges must be in the same ratio.’ Do you agree? Explain.
2. According to you, what are some constructive measures that the judiciary can take to provide women a level playing field in judiciary?