All-men benches ponder over triple-talaq and Sabarimala

The idea of a reflective judiciary representing all sections of the society has only lately been recognized in India.

Even though reflective judiciary has not been raised as an issue before the Supreme Court, but Justice S R Pandian in Second Judges Transfer Case manifestly spoke for it: “It is essential and vital for the establishment of real participatory democracy that all sections and classes of people, be they backward classes or scheduled castes or scheduled tribes or minorities or women, should be afforded equal opportunity.”

This paper efforts to highlight the critical state of gender representation in the Indian judiciary. The government released in 2017 some disturbing statistics: of the judges in the Supreme Court and various High Courts, only 12% are women. The Supreme Court has only ever had eight women judges.

It was astounding to learn that the first woman judge in the Supreme Court was appointed only after 39 years of its establishment. After the retirement of Justice Ruma Pal, the Supreme Court was without a female judge for almost four years.

It was only after Her Excellency Prathibha Patil’s intervention, that the collegium headed by the Chief Justice K G Balakrishnan recommended the elevation of Gyan Sudha Misra, Chief Justice of the Jharkhand High Court, as Supreme Court judge.

The situation in High Courts are equally grim. The 24 High Courts of our country have only around 10% of women judges. And High Courts of Uttarakhand, Tripura, Meghalaya, Manipur, Jharkhand, Chhattisgarh, Jammu & Kashmir and Himachal Pradesh do not have even a single female judge.

The condition is shoddier in the lower judiciary. A report by the Vidhi Centre For Legal Policy (2017), reveals that the number of women judges can be pegged at around 28% of the total strength.

While states like Bihar (11.52%), Jharkhand (13.98%), Gujarat (15.11%), Jammu and Kashmir (18.62%) and Uttar Pradesh (21.4%) are at lowest end of spectrum, Meghalaya (73.8%), Goa (65.9%) and Sikkim (64.7%) are slightly better.

Inadequate representation of women has serious social and political ramifications. It not only demonstrates the lack of diversity in judicial perspectives, but directly magnifies the implied bias that exists in courts.

This dearth of diversity is sensed most intensely when we see constitutional benches, all comprised of men, pondering over critical women issues such as triple-talaq, marital rape, adultery and entry of women in temples and mosques. It crumbles the courts’ legitimacy as representative of the various sections of society and questions the equality of opportunity for women in the legal profession.

There seems a world of difference between precept and practice. The Supreme Court, which is at the helm of appointment affairs in constitutional courts for the last three decades, has failed miserably to apply principles of gender justice (which it has preached from the bench in cases like Vishaka or Sabrimala) while recommending names for High Courts and the Supreme Court.

It apparently seems to be clutched by patriarchal bias that confronts the process of appointment, promotion and elevation. Several judges and lawyers have testified to this gender bias in the appointment and promotion process.

The former Chief Justice of the Delhi High Court, Justice A P Shah, has evoked an instance how a woman lawyer recommended for judgeship was vetoed on the grounds that she was ‘rude, but similar behaviour displayed by a male lawyer have not been taken as a ground of disqualification.’

As far as subordinate judiciary is concerned, states like Andhra Pradesh, Assam, Bihar, Chhattisgarh, Jharkhand, Karnataka, Odisha, Rajasthan, Tamil Nadu and Telangana have provided a quota for women that ranges between 30 to 35%.

Prominent women lawyers like Indira Jaising, Meenakshi Arora and many others have expressly raised the issues of discrimination that women lawyers face in the legal profession embedded with a deeply-rooted ‘old boys club mentality’.

This has contributed to the low representation of women in legal profession, as estimated around 10%. When it comes to senior advocates in the Supreme Court, this further goes down to 3% (only 12 women lawyers have been designated as senior counsels by the Supreme Court).

Eight women in the Delhi High Court, six in the Bombay High Court and one in the Allahabad High Court, have been designated as senior advocates so far. This state of affairs makes it difficult for this class to aspire for judicial posts in constitutional courts.

Prime Minister Narendra Modi, who swears by gender justice, has to persuade state governments, at least those where the BJP is in power, to reduce this gender inequity by providing women reservation in judicial services at all levels.

But, eyes will be more on the five lords of country’s highest court. They will have to take this issue on board in a more systemic manner, if India’s higher judiciary is to be truly representative.

Writer is associate professor of law, NLU