Issue of Gender Gap in Judiciary – Explained, Pointwise

Introduction

The issue of a gender gap in the judiciary is in the spotlight after a plea filed by the Supreme Court Women Lawyers Association in Supreme Court (SC). The plea advocated for increasing women participation in the judicial set up in order to augment gender justice.

The participation of women in the judiciary so far has remained minuscule, especially at higher levels. Therefore, an attitudinal change, along with a strong will to attain gender equality is needed amongst the male judges, in order to curb the gender gap in the judiciary.  

Current Gender Gap in Judiciary
  • Almost 70 years have passed since the independence, but, the Supreme Court could witness the appointment of only 8 women judges so far.
    1. Justice Fathima Beevi became the first woman to be appointed as SC judge in 1989. 
    2. After this, there are only 7 more appointments to date. The last ones being Justices Indu Malhotra and Indira Banerjee in 2018.
    3. Currently, one woman judge is present in the SC.
    4. So far, No women Judge has held the position of the Chief Justice of India.
  • In 25 High Courts, only 81 women judges are present out of 1078. This portrays the glaring inequalities in the judicial setup.
  • Similarly, women represent 48 per cent of our population, but they constitute only 28 per cent of district court judges
Why is such a Gender Gap is prevalent?

Both the government and collegium system is responsible for such dismal performance.

  • The government appointed only one woman judge till 1989, while hundreds of males got appointed to SC.
  • After 1993, the collegium became the ultimate authority to recommend names to SC. But this group also missed the opportunity to recommend more women judges. So far only 7 women judges have been appointed to the SC based on the recommendation of the Collegium. 
Important Article and cases
  • Article 124(2) of the Indian Constitution provides that the Judges of the Supreme Court are appointed by the President. He/she should consult such a number of the Judges of the Supreme Court and of the High Courts in the States as he/she may deem necessary for the purpose.
    • First Judges Case – In this case, the court held that the President is not bound by CJI’s advice.
    • From the Second Judges Case (1993) – the Collegium system evolved and start making appointments.
Need to bridge the gender gap in Judiciary
  1. Principle of Reasonable representation: As per this, there has to be more women judges as they constitute almost 50% of the Indian population, but are highly underrepresented in the judiciary. 
  2. The credibility of Judgements: The judiciary is the protector of fundamental rights. Further, it gives various judgements for enhancing inclusive participation and equality in society. If the institution itself lacks these principles, then the worth of its judgements/ advisories/ directives will get diminished.
  3. Public Confidence: More women will bring diversified perspectives that would improve fairness in decision-making. This will automatically strengthen the public’s confidence in the judicial setup.
  4. International Obligations: Sustainable Development Goal 5 of UN calls for attaining gender equality. Greater participation of women in the judiciary will act as a prudent step in this direction.
  5. Lack of Gender sensitivity in the Court Judgements:
    1. There are cases in which marital rape was not acknowledged as a crime. Few For example,
      • SC recently granted bail to a government servant who is accused of repeated rape and torture of a 16-year-old child.
      • During this hearing, CJI questioned that “When two people are living as husband and wife, however brutal the husband is, can the act of intercourse between them be called rape?”
    2. There are also instances when the court upheld the superiority of society’s attitude toward women against the rights of Women.
      • For example, In Narendra vs K. Meena (2016), the SC said that under Hindu traditions, a wife after marriage is supposed to fully integrate herself with her husband’s family. Further, the court held that the refusal of women to live with in-laws amounts to cruelty. Therefore, the husband is entitled to divorce her under the Hindu Marriage Act.
    3. Apart from that, there are other instances as well when women protection laws are diluted without considering the sensitivity of the issue. Such as the intervention of the court against the right of a woman to marry according to her will. For example,
      • The infamous Hadiya (2017) case: The woman’s father accused her that she was forcefully converted to Islam. Though, Hadia had denied it repeatedly. But, the court ordered an investigation by the National Investigation Agency for looking into the matter of marriage of two adults.
Challenges in bridging the gender gap in the judiciary

There are some hurdles to bridge the gender gap in the judiciary.

  1. Seniority Principle: This principle is followed in case of appointments to the higher judiciary. However, strict adherence to this also discourages more women appointments.
  2. Insensitive Attitude: Many judges feel that there are fewer women judges, and they also lack the desired qualities of Judges.
  3. Neglect of Academic Community: The collegium or government doesn’t appoint any distinguished jurist (like a law professor) to the supreme court
  4. Liberal stance of Collegium might impact the quality of Justice: Providing reservations for women might impact the quality of Justice as there might be a chance where a woman Judge is get appointed only to fill the reservation.   
Suggestions to improve Gender Gap in Judiciary
  • The willpower towards women empowerment needs to be enhanced in the judicial branch through sensitization workshops and gender-sensitive training.
    • They must realize that women take a longer path to success that is often interrupted by childbirth and childcare.
  • The government and Judiciary can provide relaxation to the seniority principle. This will ensure gender balance on the bench of the top court.
  • The collegium should diversify the appointment process in order to bridge the humongous gender gap. They can also recommend a distinguished women jurist for appointment to SC as permitted by Article 124 of the Indian Constitution. Such appointments can help in tackling the criteria of geographical representation in the supreme court, as many times there are no women judges in a particular geography.
  • Encouraging more women to take up the profession: Both the government and the Bar Council of India has to take adequate steps to include more women to take up the Lawyer profession. This will improve the quality of women lawyers in the long run.
  • Creating a road map towards bridging the gender gap: SC has to take the plea filed by Supreme Court Women Lawyers Association as an opportunity. Utilising that, the SC has to create a vision document to bridge the gender gap in Judiciary.
Conclusion

The collegium should now take a liberal stance towards women judges and must ensure at least 5-6 women judges are present in SC at least within a decade. This will not only ensure gender parity but will also give India its first female chief justice. 

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