Wednesday, February 1, 2023

Women in Black

The skewed gender ratio in the Indian judiciary militates against women in the judiciary. As the demand for more women representation gains ground, APN channel brought together a high profile panel to discuss the issue on its special show India Legal. The show was hosted by the channel’s Editor-in-Chief, Rajshri Rai.

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By Sanjay Raman Sinha 

As the world celebrated International Women’s Day on March 8, it was an appropriate time to take a hard look at women representation in the judiciary. The crisis of gender imbalance in the judicial set up of the country is not a new phenomenon. However, with the current thrust on better deal for the women in black in the judiciary, as voiced by Chief Justice of India (CJI) NV Ramana umpteen times, it is incumbent not only to assess but also initiate action to make up for the female gender deficit.

The number of women judges in the High Courts and Supreme Court is dismal. Justice Fatima Beewi was the first woman judge in the Supreme Court. The appointment took place in 1989. That is, after 39 years of the existence of the Supreme Court. In the next three decades, only eight women became judges of the Supreme Court. So far, only 11 women have been judges in the Supreme Court. There are currently four women judges—an all-time high—out of 33 in the Supreme Court. The lower judiciary in India has a miserly 27.6% of women.

Justice Gyan Sudha Mishra, former Supreme Court judge, said: “When I got enrolled in 1972, it was done surreptitiously so that people shouldn’t come to know about my identity. After enrolment, another phase of the struggle began. I had to prove my worth. Then, no excuse was accepted. Yes, some soft corners are always there. Women may be given easy subjects on the roster. But, on the whole, it is a struggle to prove one’s worth in a field dominated by men.”

Justice Sujata Manohar, another former Supreme Court judge and the second woman to become a Supreme Court judge, has experienced the challenges of women in the early years of the judiciary. She said: “When I joined the Bombay High Court Bar in 1958, there were only four or five women lawyers who were practising and they had very little work. During that time, a senior lawyer asked me, ‘well, why have you come here, are you looking for a husband?’ I told him that I am a lawyer and want to practise. Then there was another lawyer who presented me with a book of poems, and the very first poem was about a ‘lovely women lawyer’! This was the reception I got. It was very difficult to get any work at all because everybody thought that women become lawyers to spend time between graduation and marriage. But when I persisted, and despite getting married and having children, continued to come to the court, people began to take me seriously and I got work. I think my generation of women lawyers have made it easy for the present generation.”

Access to justice for the underprivileged and women has always been a challenge. The cost of litigation can discourage many women from approaching the courts. To ensure women with disadvantaged backgrounds get access to fair, affordable, accountable and effective remedies, the Supreme Court has instituted the Supreme Court Legal Services Committee with the CJI as the patron-in-chief. The Committee spearheads focussed dispensation of legal aid to poor women in need.

Sonal Patil is the officer on special duty at the Supreme Court Legal Services Committee. She explained: “Article 39A of the Indian Constitution provides for free legal to the poor and weaker sections of the society and ensures justice for all. In consonance with these provisions, NALSA has formed the Supreme Court Legal Services Committee. It provides legal aid to the disadvantaged sections of society and ensures access to justice to the needy. We provide a good lawyer free of cost for this purpose. We also undertake missions to create legal aid awareness amongst the masses to make them aware of their right to free, speedy and easy access to justice.”

Another issue which has been pro­actively advocated by the CJI is reservation for women in judiciary. In fact, he had proposed for 50% reservation for women in judiciary. This proposal gains traction in view of the hard statistics which highlight skewed gender representation across the board in all levels of judiciary. The data is damning—of India’s 1.7 million advocates, only 15% are women. Only 2% of the elected representatives in the State Bar Councils are women. There are no women members in the Bar Council of India. At least five High Courts—Manipur, Meghalaya, Bihar, Tripura and Uttarakhand—do not

have a single woman judge, while seven other High Courts have only one woman judge.

Justice Mishra cleared her stand on women reservation: “When we talk of reservation for women in judiciary, we have to see that women get opportunity to work in various posts and gain experience in all types of work like government advocates, standing counsel, etc, and then move up the ladder. We cannot compromise on quality. It is a tough profession where one works independently and has to get work from the market by one’s own merit. I don’t have anything against men. All the major reforms, whether in society or in judiciary, have been initiated by men, So, women have to find their rightful place in the system by dint of their capability.”

Another related issue, along with women reservation, is the functioning of the collegium, the central body which selects judges. Often, due to the preponderance of male judges, it has been dubbed as a male club. Justice Manohar said: “I don’t want a woman’s image to be tarnished just because of reservation. Women in judiciary are doing extremely well and I don’t favour reservation. As for the collegium being a male club, that nomenclature is not correct. I was in the collegium and so was Justice Ruma Pal. Your inclusion depends on whether you are among the senior first four of the judges or not. Gender doesn’t count here.”

Do women on the bench make a difference? Do women judges judge differently than men? Early studies of women rulings in trial courts have found that female judges tend to impose harsher sentences in criminal cases than their male counterparts. But there is also a case for empathy and sensitivity which the women judges bring to the table.

Justice Manohar said: “In matters relating to women, if a question is asked whether women judge the matter better than men, I wouldn’t give a categorical answer. By and large, men may not understand or empathise with a victim woman’s condition. But I repeat this as a general statement. There have been male judges with excellent sense of empathy for the female condition. What we have to see is whether they understand the situation correctly and apply the law correctly.”

Justice Mishra was on the same page with Justice Manohar on the issue. She said: “I second Justice Manohar’s observation that on any given situation, we can’t make watertight classifications about men or women being better judges. Women do have better sensibilities. But that is all. Law and its application are paramount.”

Women judges have also led important and progressive legislation changes. Their contribution can’t be discounted. For example, Justice Leila Seth as a member of the 15th Law Commission, helped in making amendments to the Hindu Succession Act, 1956, securing the right of daughters to inherit ancestral property. So, there exists a strong case for women judges to be made members of law making bodies.

Justice Manohar said: “Women lawyers should contribute better for improving legislation for women.

The first lady advocate in the Allahabad High Court was allowed not to practise but only advise the women in purdah as it was felt that women litigants will be more open to advice by a woman lawyer. This empathy works even now. Women lawyers can do a lot for law reforms and bring women-centric law reforms. I also wish that more women legislators push pro-women laws in the assemblies and the Parliament.”

Work-life balance is also a factor which inhibits women in the legal profession to make rapid professional strides. They have to take time out for maternity causes and often lag behind in the professional race. Justice Mishra said: “Striking a work-life balance is also important. Working women face problems of marital adjustments. If being a wife she is transferred on some judicial assignment, then how can the couple live separately in different towns? This is a challenge which a working woman in any field faces, including the judiciary.” With built-in dysfunctions in the social and legal set up, it is quite difficult for a first-generation woman lawyer to get work and make headway.

Justice Manohar had an advice for women in the legal profession. She said: “My advice to female judicial officers is that they should excel in work because that is only which matters in the long run. That will get you to the right place in the right time. I also advise that women take up pro bono cases in the beginning of their career, more so because it is then when one finds it difficult to get work.”

The Solicitor General of India, Tushar Mehta, gave a special message to the women in judiciary, in general, and the participants in particular. He said: “Justice Sujata Manohar, Justice Gyan Sudha Mishra and all the female participants of the APN/India Legal show, I wish everyone a very happy women’s day. Women who try to be equal to men lack ambition. You need not try to be equal. You are already ahead. You are formidable. You are much superior. Don’t ever wish and try to be equal to men. Women are everywhere be it in law, literature, business, games, politics, etc. In society, in Indian culture, a woman is shakti. Shakti means power, energy. Man is merely a manifestation of that energy. In our field, some of the most brilliant and graceful judges have been women. It is similar so far as the lady lawyers are concerned. In my team also, I have two lady ASGs and I can say that they are far superior and are doing far better than the rest of us. I once again wish everyone a very happy women’s day and pray that this glorious journey moves on with more and more momentum.”

With these words, the debate ended, and the prospects for better representation of women in judiciary, according to the vision of the CJI, now look hopeful than ever before.

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