Friday, December 8, 2023

Women in Judiciary: From Raw Deal to New Deal?

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Their numbers are abysmal. While there has never been a woman chief justice, the fairer gender form just nine percent of Justices in High Courts. What can be done to make the Judiciary more egalitarian?

~By Upendra Baxi

Women have got a raw deal when it comes to top legal appointments or judicial elevations—this much stands recognised by constitutional elites. The sculpting of a New Deal for Indian women is an uphill task and occurs at a slow and meandering pace. How to fast-forward this pace is an integral aspect of “constitutional renaissance” which former Chief Justice Dipak Misra recently affirmed for the Court.

Even when the appointment is in hands of the Executive, the legal caste is all-male. All Union law ministers (from Bhimrao Ramji Ambedkar to Ravi Shankar Prasad) have been male. Not a single woman has adorned the office of the Chair of the National Law Commission and the Bar Council of India (though it is an elective post). No woman has been appointed to the constitutional position of attorney general (though two—Indira Jaising and Pinky Anand have been recently appointed as additional solicitor general). Very few women are the Chairs of national administrative and statutory tribunals. Here, I am not even touching upon the equally dismal experience in various states in India. This, despite the fact that we had a woman president, prime minister, president of the Congress Party and many powerful women chief ministers. The question “Why so?” has not even been raised.

There has been no woman chief justice of India (CJI) among the 46 CJIs that we were fortunate to have. And only eight women have been elevated to the Supreme Court from October 1998 till August 2014. The current constellation of Justices—R Bhanumathi (who retires on July 19, 2020), Indu Malhotra (on March 13, 2021) and Indira Banerjee (on September 23, 2022)—is indeed welcome, though exceptional. Incidentally, Justice Malhotra is the only and first woman lawyer to be directly appointed. Justice Ruma Pal, with nearly six years in office, was the longest serving woman justice of the Supreme Court, though Justice Bhanumati comes close to her.

The judicial contributions of these Justices, and women Justices as a whole, need to be studied. For example, Justice Sujata Manohar, the second woman Justice of the Supreme Court, was on the Vishakha Bench that innovated the momentous guidelines on sexual harassment. Off-bench, she has suggested that these guidelines need to be revised in view of recent developments (The Indian Express, October 22, 2018). And the fourth woman Justice, Gyan Sudha Mishra, had publically meditated on how the experience of being a woman on the judgment seat had made her extra sensitive to women’s issues (India Legal, February 19, 2018). Justice Ruma Pal has been sensitively articulate on issues of social and gender justice on and off the bench. A comparative study of male and female Justices speaking on issues of justice will make a compelling reading.

We learn from statistics that: (1) rank patriarchy prevailed till October 6, 1989, when Justice Fathima Beevi was elevated as the first woman judge (a CJI publically said later that he had only appointed her because she would be too junior to be appointed as head of a bench given the short tenure she had!); (2) two years passed before the elevation of Justice Sujata Manohar on November 8, 1994; and nearly four years when Justice Gyan Sudha Misra was elevated on April 30, 2010 (3) overall, the Collegium system appears more women-judge-friendly than Executive-dominated appointments.

But still, the national statistics are discomforting. In High Courts, out of the sanctioned strength of 1,221 judges (of whom only 891 Justices are appointed), 81 are women. That amounts to just nine percent of the working strength or 6.6 percent of the sanctioned strength. However, in the subordinate judiciary, there is relative good news—there are 4,704 women judges out of a total of 16,443 judges, which is 28 percent of the total. However, this compares unfavourably when we recall that many High Courts are still awaiting their first woman judge. Out of 107 elevations in the J&K High Court, (established in 1928), it is only now that Justice Gita Mittal was elevated as the first woman chief justice and Justice Sindhu Sharma (at 46 years) became the first woman Justice there.

After Justice Leila Seth became the first woman judge of the Delhi High Court on July 25, 1978 and the first woman chief justice of a High Court (Himachal Pradesh in 1991), many more women Justices have presided over courts. Recently, Justices Manjula Chellur, G Rohini, Nishita Nirmala Mhatre and Indira Banerjee headed the High Courts of Bombay, Delhi, Calcutta and Madras respectively. It is estimated that seven women Justices may become chief justices in the next decade. They are Justices Sangeeta Chandra (Allahabad), Bharati H Dangre (Bombay), Shampa Sarkar (Calcutta) and Pratibha M Singh (Delhi), all of whom retire in 2030. Then, there are Justices Amrita Sinha (Calcutta, retires in 2031), Justice Anita Sumanth (Madras, retires in 2032) and the youngest, Justice Sindu Sharma (retires in 2034) who, other things being equal, is likely to become the first woman CJI.

It is clear that determined steps were recently taken to redress under-representation of women and data exists to show that women legal professionals have done as well as their male counterparts, if not better. Many, in fact, have outperformed their male counterparts in judicial services examinations. It is also evident that the presence of women Justices on courts is a constitutional good as it helps promote new types of creativity and fosters social and juridical/constitutional plurality.

But any attempt at feminising the Indian Judiciary should begin with confronting the power of slander and gossip. Pernicious rumours travel to chief justices of High Courts and even members of the Collegiums, CJI and law ministers. Unmarried women (more than males) are most susceptible to such gossip and almost always lose their prospective judicial elevation. No single woman has adorned the High Bench.  And it will take a long time before other sexual minorities, now promised constitutional rights, may find a place on the bench. How far courts and constitutions go in displacing the sovereignty of heterosexual normativity remains a huge imponderable globally.

Broadly, on the question of judicial elevations of women, four positions emerge: utilitarian, pragmatic, ontological and deontological. The utilitarian approach stresses experience and then the skills that women Justices bring to the job that male Justices may not necessarily bring. The pragmatic position argues the virtues (of social advantage) of women elevations or appointments on grounds wider than the utilitarian. The ontological perspective celebrates the maxim of citizen equality: an equal number of women ought to be appointed as judges; neither the maximisation of utility nor social advantage matters. The deontological perspective stresses the priority of good over right and what matters is not the right course of action but a just one; on this view, the representation of women constitutes an unqualified human good. Debates about judicial elevations may flicker on these perspectives but they should never altogether be allowed to fade.

Many constitutional conventions about “representation” have slowly but conscientiously evolved and these should be carefully understood as well as respected. Among this, the most sturdy has been the principle of federal diversity which ought to inform the composition of the Supreme Court. The second is the sheer compulsion of merit in judicial work and worth which should prevail over all other grounds. Ethnic pluralism is a third convention that justifies elevations of minorities, the scheduled castes and tribes and women, though it must be observed that women as a group or class do not constitute a numerical minority. Fourth, mechanical quotas are regarded as inappropriate for judicial elevations given the small numbers of the appellate judiciary; instead, respect for plurality is better served by a constant vigil over constitutional conventions for elevations and transfers. It may be noted that none of the above militates against elevation of more women justices; their elevation can be so arranged as also to result in fulfillment of these conventions.

India does not seem to have articulate procedures for taking gender into consideration in the recruitment and appointment process. A 2018 Council of Europe study report on judiciary indicates that Armenia, Austria, Bosnia and Herzegovina, Denmark, Georgia, Germany, Iceland, Montenegro, Norway, Serbia, Spain, UK-England and Wales, UK-Scotland and Israel apply specific rules in this regard. For example, in Armenia, the list of judge candidates must contain “not less than 25% of representatives of one gender”. In Bosnia and Herzegovina, the Law on the High Judicial and Prosecutorial Council is also pursuing the goal of parity; the Judicial Council of Montenegro is bound by a legal obligation to ensure parity between men and women as part of the appointment procedure and in UK, there is a statutory responsibility of the Lord Chancellor and the Lord Chief Justice to ensure such parity. The study, however, notes that “very few States and entities have started building a policy that would effectively take gender into account, either in the form of binding quotas or incentives to recruit persons of the underrepresented gender with equal skills”.

All the same, the Supreme Court of India and the High Courts have become increasingly sensitive to principles of social inclusion and have, consistent with the principle of diversity, adopted a seniority-cum-merit approach.

No longer, thus, monocultures of the judicial mind may be fostered. True, often the political Executive may find it expedient to differ with the Supreme Court, but the Collegium’s insistence that merit may trump seniority shows a careful affirmation of constitutional plurality.

—The author is an international law scholar, an acclaimed teacher and a well-known writer


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