By Sanjay Raman Sinha
The appointment and swearing-in of three women judges in the batch of nine newly inducted judges was momentous. Its significance goes beyond the ceremonial and the symbolic. The appointments point to the policy and attitudinal change of the collegium with respect to women judges. Hopes are high now that an inclusive judiciary with good gender representation stands a fair chance in lower and constitutional courts of the country too. With equal access to education, a number of women are opting for the legal profession. This has culminated in the present proud moment in the top court.
Justice Indu Malhotra, former judge of the Supreme Court and the second woman to be designated Senior Advocate by the Court, said: “It is a proud moment for us. Earlier, there was symbolic representation for women and other sections in the judiciary. But now, the numbers are increasing steadily. Furthermore, the appointments are merit-based. Among the new appointees one may become the CJI in the near future.”
Justice Mukundakam Sharma, former Supreme Court judge, concurred. He said: “The appointment of three judges in the Supreme Court is a historic moment. They were appointed in one go. That is commendable. This is a change for the better and the trend should continue. The judges who appointed them are aware that more representation of all segments of society, including ST/SC, is needed. Article 16 of the Constitution holds that no discrimination should exist between citizens on the basis of caste, religion and gender. This is for all jobs, as well as the judiciary. I don’t support a reservation policy in the judiciary. It is not advisable. I feel a sensitive bar is needed as well.”
When former CJI Justice SA Bobde was in office, he had said that several women lawyers had turned down proposals to accept judgeship citing domestic responsibilities. This opened up the old debate once again.
Sneha Kalita, Supreme Court advocate, represented the Supreme Court Women Lawyers Association in the apex court for better representation of women in the judiciary. It was while hearing her petition that Justice Bobde had made this remark.
Kalita said: “Maybe the judiciary at that time had asked a few women and got the reply. Women should venture out and take the responsibility to serve. Let’s look at the figures. The Allahabad High Court has 160 seats for judges. Currently, out of 96 judges, there are only six women judges. In the Bombay High Court, out of 63 judges, seven are women. In the Punjab and Haryana High Court, out of 47 judges, seven are women. So, gender disparity exists.
Gender equation needs balancing.
The Supreme Court Bar Association (SCBA) is taking the right initiative in this direction. The names of women candidates for judgeship are being shortlisted. Ideally, we should go for a 50:50 ratio.”
But is it true that family responsibilities weigh down women in the judiciary? Women in the judiciary, as in other fields, are doing a balancing act with their family and professional lives. Justice Malhotra was the first woman advocate to be elevated as judge of the Supreme Court directly from the bar. Her move from bar to bench broke the glass ceiling in a major way and set in motion the processes for more woman advocates to get directly nominated as judges of the Court.
Justice Malhotra said that earlier women used to practise law for short periods. Family responsibilities used to curb their practice. “Issues like marriage, childbirth and maternity issues constrained a long practice for them. Now we find that they are working for longer periods on a sustained basis. They have made a place for themselves in the judiciary on the basis of merit and dint of hard work.
“Gender shouldn’t be a criterion in appointment. It should be purely on merit. We are discharging a public duty. Hence, inductions should be merit-based. Women appointees should be competent to discharge the functions they are entrusted with. I don’t believe in percentage; I believe in merit. Comparatively, the current environment is very progressive. There is a strong instinct in the judiciary to increase the number of women.”
Of course, balancing work-life equation is the biggest challenge a woman faces. But with the passage of time, attitudes have evolved too. Now they are getting more support from the family than say a decade ago. But the bar and bench should be more accommodating now.
Mahalakshmi Pavani, senior advocate, Supreme Court, has been actively involved with the SCBA for the promotion of women advocates to judgeship. She said: “With the induction of three judges in the Supreme Court, the percentage of women judges there has increased to 11. It is a good step in a good direction. One matter of concern is that Supreme Court women lawyers are not readily accepted by the High Courts as appointees for judgeship. It is not that Supreme Court women lawyers are not meritorious, but their candidature is not welcomed. This has to change. The bar has to accept women candidates from other states as well. All are citizens of India. Women should get the opportunity to practise everywhere. Bars all over India should support women advocates, and families should support the wife or daughter-in-law in this area.”
Justice Sharma talked about the workings of the collegium system, which are cloaked in mystery.
“In the district judiciary, the scene is slightly different. Here, exams are conducted for selection of judicial officers. High Court collegiums should promote fair representation of all sections. The collegium system has stood the test of time. When the chief justice appoints judges, he consults not only the collegium members, but other judges of the court as well. When I was the chief justice of Delhi High Court, the law ministry used to advise fair representation for all segments of society. I have worked with very competent lady judges and lawyers.”
Article 233 of the Constitution provides that appointment of a district judge requires at least seven years of practice as an advocate. Many say that this rule inhibits women lawyers’ upward mobility. However, Justice Malhotra doesn’t subscribe to this view. She said: “It is said that the seven-year practise requirement for advocates to be eligible for judgeship is difficult for women to fulfil due to family responsibilities. A minimum number of years of practise is mandatory for everyone. It shouldn’t be relaxed. To discharge public duty faithfully, at least that much work practise is needed. Furthermore, women lawyers of the Supreme Court should definitely be considered for judgeship.”
Kalita has batted for gender parity to bring the reputation of the Indian judiciary at par with other nations at the international fora. “There is no gender parity in the judiciary. We are party to international conventions and our system of parity should reflect internationally. It will show at international forums how much liberated women are in India. The SCBA initiative is commendable in this regard. The search committee is doing a much-needed job. I believe that women advocates should be appointed to judgeship more often.”
The common refrain is that meritocracy shouldn’t be a casualty. Women are equally worthy of making a place for themselves in the judiciary.
“In the appointment of women judges, merit should be the sole criteria. If there is a reservation system, there should be parity with male counterparts. In the lower judiciary, pay scales are low, infrastructure is not up to the mark, there are no toilet facilities, etc. These are the conditions under which lawyers in lower courts work. But that doesn’t mean there is a dearth of talent. Given a chance, the meritorious among them can rise to greater heights. Women lawyers from the lower judiciary should be encouraged. The government should upgrade facilities and paygrades.”
Justice Sharma,who has shared the bench with many lady judges, was impressed by their performance.
“Many meritorious women lawyers and judges have worked with me. Justice Hima Kohli, who is now a Supreme Court judge, started her judicial career with me. Justice Geeta Mittal sat with me at the bench. What I found was that the women were always well-prepared and knowledgeable. They are as competent as their male counterparts. There is no bar on women becoming judges either in the Supreme Court or High Courts. The system of appointments is functioning well. Lady judges are doing quite well. The chief justice has taken the lead. Lady judges should also be promoted.”
But is monetary consideration affecting the choices of lady lawyers to pursue a career of judgeship? Why would one relinquish a flourishing and lucrative practise to take judgeship with lower payscales? That is a question to ponder over.
Sneha said: “If you want to become a judge, money shouldn’t be the consideration. Service should be the motive. One should take it as an honour to serve and one should realise that it is proud moment for self and family. What I have felt is that the family also gives due respect to lady lawyers in the family.”
Justice Malhotra had the final word: “More needs to be done for women’s cause, especially in the lower judiciary. Moral and institutional support is needed. Then merit will definitely find its way to success.”
Clearly, the portents are good. The phrase “men in black robes” is all set to change. Hopes are high that the bench will now be shared more and more with women judges and judgements will reflect sensitivity and empathy which flow from the hearts and pen of lady judges.