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Above: Convocation ceremony of the students of GNLU, Gandhinagar, Gujarat/Photo: UNI

Can legal education give the foundation for cultivating feminine approaches so that lawyers are at least conscious of this deficit?

By Prof NR Madhava Menon

Unbiased and fair justice is what is expected from judges generally and justices of constitutional courts in particular. No one is unbiased to begin with as everyone is a product of the environment in which one is born and brought up. In the circumstances, for a lawyer to become a judge with unbiased qualities is a long-drawn process which requires introspection on one’s own attitude and conduct, as well as readiness to learn from training and experience. While some judges take this transformation for granted, others make a conscious effort not only to acknowledge and overcome biases they carry, but also try to impress others at the receiving end about their impartiality on adjudging sensitive issues of human relationships. In this regard, Indian judges operating amidst multiple cultures, conflicting traditions and customary practices have a difficult job on hand.

In the above context, the remarks of Justice AK Sikri, who retired from the Supreme Court recently, to the effect that fair decision-making requires “an element of femininity” in judges warrants attention. He reportedly confessed that he possessed it in some measure which helped him be a better judge in imparting justice with mercy and compassion. He recommends a feminine approach to justice as it helps to instil the desired sensitivity and impartiality in judging.

However, it is questionable whether mercy and compassion are exclusively female attributes. Certainly they are desirable elements in judicial decision-making. Perhaps the vestiges of a patriarchal mindset continuing to dominate the men of contemporary times without their realising its presence in them probably made the judge attribute them to the female gender. This was acknowledged by Parliament when it incorporated a provision in the Family Court Act that in family court appointments, other things being equal, a woman should be preferred.

Equal protection under law and equality before law under the prevailing structure of Indian society are impossible without the use of instruments like preferential discrimination and affirmative action in favour of certain classes of people, including women. However, it is difficult to operationalise the constitutional intent because of the mindset problem as well as the dominance of males in the judiciary and the legal profession. And this is the context in which Justice Sikri’s observations assume significance.

The question that arises is that if “a feminine approach to justice” is essential for fair decision-making, what is being done to prepare them for the job. Justice Sikri said that judges with the passage of time acquire that sense of justice. Is it enough to leave it for judges to acquire it through experience over a period of time? Are there techniques to assess the extent of “feminine approaches” in judges at the time of their appointments? How far can judicial education and training at the induction stage or thereafter instil such feminine qualities in those who do not possess them? Can legal education provide the foundation for cultivating feminine approaches in analysing and appreciating legal provisions and judgments so that lawyers are at least conscious of the “feminine approaches deficit” in their pleadings, arguments and conduct of court proceedings?

If Justice Sikri’s parting remarks could persuade those on the High Bench who make judicial selection and direct judicial training to take it seriously and follow it up with necessary changes, one can hope that not only will the judiciary have better judges, but the quality of justice will improve towards building a fair, egalitarian social order.

—The author is a former director of the National Judicial Academy and Hony Director of the Kerala Bar Council MKN Academy for Continuing Legal Education, Kochi

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