Judiciary has a Gender Problem

By A.J. Shanthini Devi


“The Supreme Court went back to Henrik Ibsen, a playwright known for his feisty women characters who break free from familial confines”[1] and notions of “social propriety while acknowledging society's deep-rooted patriarchy and initiating a course correction in the way the judiciary itself views gender rights.”[2] On March 18, the Madhya Pradesh High Court overturned an unusual rakhi-for-bail order handed to a sexual offender and provided a list of principles for the judiciary to follow when dealing with sexual offences against women. The two-member Bench of Justices A.M. Khanwilkar and S. Ravindra Bhat utilized an Ibsen statement to imply that a woman "cannot be herself" in an "exclusively masculine society, with rules made by men," and established it as a guiding principle for all future judicial pronouncements. After CJI S.A. Bobde's reported statements during a virtual hearing, where he asked a suspected rapist's lawyer if his client would marry the victim, the judiciary's corrective voice is a positive step. Later, he claimed that he had been misquoted. The Khanwilkar-Bhat Bench requested that all courts refrain from forcing marriage or requiring a sex offender and his victim to agree. Besides irresponsibly connecting sexual offences to women being alone at night or wearing clothes of their choice, powerful men appear to be reinforcing misogyny.


The Bench cited the 'Bangkok General Guidance for Judges on Applying a Gender Perspective in Southeast Asia,' which listed a slew of stereotypes that should be avoided: women are physically weak; men are the head of the household and must make all family decisions; women should be submissive and obedient. Women are fighting established stereotypes in society, and the ruling recognizes this unpleasant reality, stating that gender violence is often hidden behind a culture of silence. It stated that data might not reflect the true incidence of violence against women due to ingrained uneven power equations between men and women, including cultural and societal standards, financial reliance, and poverty. The Supreme Court is not the first to take action against gender stereotypes. Justice D.Y. Chandrachud (Secr., Ministry of Defence vs Babita Puniya) argued that women in the Army should not be treated any differently than men because they served as "equal citizens" in a joint mission, and the Court in Anuj Garg criticized the "notion of romantic paternalism" as an attempt to confine women. To end the silence on gender bias, everyone, especially institutions and people in positions of power, must take responsibility. The Supreme Court's reaffirmation of its position on women's rights is a step in the right direction, as the fight for gender equality is far from ended. Gender identity, sexual orientation, Sabarimala temple admission, and adultery have all been decided by the Indian Supreme Court. However, the number of women in senior positions in the Indian court should gauge the country's success. India has had a woman President, Prime Minister, Chief Ministers, and Governors since independence, but no woman Chief Justice.


“It took approximately 40 years for the first woman judge, Justice Fathima Beevi, to be appointed to the Supreme Court and 68 years for Justice Indu Malhotra to be directly appointed among six male judges.”[3] “Although the Supreme Court now has three female judges, it does not appear that the first female Chief Justice will be appointed anytime soon. Five male justices have already been named to succeed the current CJI until 2025. "I judge the advancement of a community by the degree of progress gained by women," Babasaheb Bhim Rao Ambedkar declared.”[4]

The Supreme Court was founded in October 1935 and served as India's federal court until January 1950, when it took on its current form. The judges were once made up of only eight people: the Chief Justice and seven puisne judges. The number of judges increased as the number of cases increased. There are now 31 judges in India, including the Chief Justice of India. The Supreme Court of India has had 46 Chief Justices and 167 other judges since 1950. Babasaheb Bhim Rao Ambedkar remarked, "I assess the advancement of a community by the degree of progress made by women."


The Supreme Court of India was established in October 1935 and functioned as the country's federal court until January 1950, when it was renamed. Only eight individuals used to sit on the Bench: the Chief Justice and seven puisne judges. As the number of cases grew, so did the number of judges. In India, there are now 31 judges, including the Chief Justice. Since 1950, India's Supreme Court has had 46 Chief Justices and 167 other judges. Indira Jaising, a prominent female lawyer, recently stated that a senior male lawyer referred to her as "that lady," while referring to other male lawyers as "my educated buddy." If a former Additional Solicitor General had this experience, one can only imagine how difficult it would be for a first-generation women lawyer.


A judge commented on my short hairdo, which I could not knot when I was practising in the Madras High Court. "Your hairstyle is more appealing than your thesis," he said. Wearing studs by women with short hair and men with long hair has been fashionable these days, but I would not say I like it. I replied that I had had short hair since I was in elementary school. I also noted that I suffer from migraines and cannot tie my hair for lengthy periods, so I had it chopped short. I reminded him that no bar council regulation or code dictates women's hairstyles. "Of course, there are no regulations," he replied. However, I am only expressing my viewpoint." Regardless of the judge's remark, I was told to apologize to the judge by other male lawyers in the courtroom. Despite being the petitioner's attorney in a transwoman's police appointment case, the judge mistreated me, insulted me, and told me to stop up.


Is a gender-balanced bench sufficient?


Women from privileged backgrounds dominate the few posts that come their way, similar to how the male population has historically monopolized the role of judge. As a result, while no Dalit judge (male or female) has served on the Supreme Court since former Chief Justice K.G. Balakrishnan retired in 2010, the top court has yet to have a Dalit woman judge is improbable that India would ever have a Dalit woman CJI.


Including female judges from various backgrounds will alter the decision-making process structurally. Personal values, experiences, and various other non-legal elements have been shown to impact court decisions in studies. If women in the court are treated the same way as males, with the same ideas and opinions, gender diversity has little to no value. Furthermore, the stronger the court is, the more socially diverse the judicial benches are. This will boost public confidence in the judiciary while increasing access to justice.


In Litigation, There Are not Enough Women.


Because lawyers who have advanced from the bar to the Bench make up a large percentage of judges in the high courts and Supreme Court, it is worth noting that the number of female advocates is still low, limiting the pool of women judges from which to choose. While statistics on the number of women in the legal profession are not available, according to a 2020 news article, women account for only 15% of all enrolled advocates in the country. Women are not in limited supply in the legal profession. Women made up 44% of those who passed the Common Law Admission Test for National Law Universities in 2019.


“Despite the near-parity of women and men entering law school, not all law graduates pursue litigation”[5]—transactional jobs in corporate law firms and roles as in-house counsel are also viable options.


"The litigation workspace is considerably different from that of law firms and enterprises," Rainmaker. This company helps organizations comply with legal requirements, highlighted in a 2012 survey performed “on working mothers in the legal profession from Delhi, Mumbai, and Bengaluru.”[6] "Courts were not built to cater to anyone but an upper caste man on a structural, even an architectural level," said Nikita Sonavane, a lawyer and co-founder of the Criminal Justice and Police Accountability Project (CPAProject). This initiative works to intervene in the criminalization of specific communities by the criminal justice system.


There are not enough washrooms for women in the Madhya Pradesh high court, for example, according to Sonavane. Many Indian courts lack even the most basic amenities, such as clean restrooms and sanitary-napkin vending machines and nursing spaces and crèches for breastfeeding women.


Discrimination is a problem that affects many areas of the judicial system, not only the gender-insensitive architecture of courts, from workplace sexual harassment to gender bias that women lawyers and judges face daily.


"In my years at the bar, I have seen several instances where lawyers make sexist statements that go ignored by the Bench. In a 2019 open letter to the Chief Justice of India, veteran counsel Indira Jaising noted, "Such tacit acceptance of sexist language in the courtroom and brushing it away as 'did not mean any harm' lends it a level of legitimacy."


She related a Supreme Court instance in which a senior male lawyer referred to her as "that woman" while referring to all of his male colleagues as "my learned buddy." "Madam, you do not need any protection; you are overprotected," the presiding judge smiled instead of reprimanding the male counsel. Jaising has also admitted being sexually harassed in the Supreme Court's corridors.


In 2015, a female magistrate in a Delhi traffic court was allegedly sexually harassed by a male barrister in open court. He had made fun of her social standing and threatened to assault her, using derogatory language sexually.


The Importance of Female Judges


"The importance of numerical strength cannot be overstated, as the macho nature of the profession is a major factor contributing to increased attrition for female judges and practitioners," says the report. Rachna Chaudhary, an associate professor at Ambedkar University whose research focuses on women's treatment in the legal system, needs your help.


While there is no specific research on the impact of more female representation in the Indian court, it is plausible to presume that findings from studies of working women, in general, will apply across professions.


According to a 2017 Pew Research Centre survey in the United States, "women who indicate that their workplace has more men than women have a completely different set of experiences than their counterparts in work settings that are primarily female or have an even mix of men and women." Women in majority-male companies were more likely to say their gender made it harder for them to advance, were less likely to believe women were treated fairly in personnel affairs, and reported gender discrimination at "much greater rates," according to the Pew survey.


Gender discrimination and bias would undoubtedly decrease if more women were in the courts. "More gender diversity could transform the ethos of the organizations," Sanyal said.

A thift in judicial culture is likely to have repercussions for litigants. According to a 2014 report by the International Commission of Jurists, "a larger number and prominence of women judges can boost women's willingness to seek justice and enforce their rights through the courts."

[1] Anonymous, "Corrective Voice: On Supreme Court And Judicial Patriarchy", March 24th, 2021, https://www.thehindu.com/opinion/editorial/corrective-voice-the-hindu-editorial-on-the-supreme-court-of-india-and-judicial-patriarchy/article34144290.ece [Accessed 2 January 2022]. [2] Ibid [3] Daksh Ghai, "A Contradiction of Gender in the Field of Law", iPleaders, October 20th, 2021, https://blog.ipleaders.in/a-contradiction-of-gender-in-the-field-of-law/ [Accessed 2 January 2022]. [4] Nishita Makkar, "Harassment in Indian Prisons - Law Insider India", [online] Law Insider India, October 5th, 2021, https://www.lawinsider.in/columns/harassment-in-indian-prisons [Accessed 2 January 2022] [5] Supra 3 [6] Supra 3


Author: A.J. Shanthini Devi

Course: B.A.-LL.B

Year: 2nd year

College: O.P. Jindal global law school

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