the intersectional feminist

“There are no women judges in the Supreme Court” replied Ms. Indira Jaising to Ms. Rupan Deol Bajaj, when she was asked why her case on sexual harassment (Rupan Deol Bajaj vs Kanwar Pal Singh Gill  1996 AIR 309) was not being heard by a woman judge in 1995[1]. 26 years later and after having only 8 Female Judges in the Supreme Court Bench from 1989, we are left with only one woman Judge, Justice Indira Banerjee, representing an entire population of approx. 48% of the Indian population[2]. The latest recommendations will definitely be a step towards making the Bench more representative and it comes with a hope of getting our very first Chief Justice of India who is a woman. However, we want to first address the basic fallacies that have been assumed to be the reason for this vast disparity.

Firstly, it is assumed that women refuse to take Judgeship, stating domestic responsibilities. This question was recently raised by The Women’s Lawyers Association, which intervened in the case of the pending recommendation of the collegium by the Centre.

The former CJI replied by stating that:

“Many women are invited to come as judges. But they have declined, citing domestic responsibilities about children studying in Class 12, etc. and Chief Justices of High Courts reported to me. These are things we can’t discuss.”[3] 

Former Chief Justice of India 

It is concerning because this deep-rooted bias is never made for a male counterpart. There is a subtle acceptance that male colleagues are less concerned with the welfare of their children and it is still the sole job of a woman to raise children. The logic is easy to refute when applied to women practicing in other fields of law, or even if this logic was to be applied to other male lawyers who after a certain age and experience refuse to accept Judgeship for various reasons.

Secondly, it is assumed that women refuse to take Judgeship and are keen to turn to litigation or transactional work in corporate law firms and in-house positions. The fact is that there exists a leaking judicial pipeline which has been backed by data showing that in 17 states, between 2007 and 2017, 36.45% of judges and magistrates were women. Out of which 11.75% women joined as district judges through direct recruitment but this trend decreased as women judges moved up the tiers of the lower judiciary (2018 Vidhi Report).[4] 

“More women tend to enter the lower judiciary at the entry-level because of the method of recruitment through an entrance examination,” said Diksha Sanyal, a researcher involved with research for the Vidhi Report. However, the process at the higher court is different which works on a recommendation basis. “The higher judiciary has a collegium system, which has tended to be opaquer and, therefore, more likely to reflect bias,” she said.[5] The population gets filtered when women judges are appointed to the High Court not solely on a merit base but keeping into account their experience and ratification by their peers. Researchers recommend that to increase the gender diversity of the Indian Supreme Court, the collegium must appoint more female judges to high courts to increase its pool of candidates to the Apex Court[6].

Some factors that contributed to these disparities are[7] –

1. Age and family responsibilities, since some female judges join the services late making their chance of making it to the higher courts bleak.
2. India has one of the world’s largest gender gaps in unpaid care work, found a 2018 International Labor Organization report, and this has resulted in a female labor participation rate of 24%.
3. Most courts are not compliant with basic requirements such as sanitary napkin vending machines or nursing spaces and crèches for breastfeeding mothers.
4. Recurring instances of sexist comments made by the legal fraternity, that doesn’t mean any harm but gives it a sense of legitimacy.
5. The bias harboured by the collegium. The elevation to Supreme Court happens on a recommendation rather than on direct recruitment through merit. Since the collegium system is opaque, biases do not come out under the public radar.

The problem with a male-dominated bench

The law undoubtedly is equal for everyone. A Judge predominantly relies on –

1. precedent; 
2. logic; 
3. legal experience; and 
4. the preparation of the lawyer.

To pronounce a judgment and carefully choose to keep out any personal biases[8]. The question we ask is – will the law be read out differently by a woman judge? or further, “At the site of the hetero-patriarchal institution, if one were to integrate a greater number of female judges, will the nature of the institution transform into an equal one?[9]

For example, in the case of Sarla Mudgal v. Union of India & Ors, the Supreme Court (SC) examined the validity of a Hindu marriage between a Hindu man and a Hindu woman and the issue of bigamy by the former after contracting a second marriage with another Hindu woman by a fraudulent conversion to Islam. However, instead of putting the responsibility of bigamy on the Hindu men, the SC blamed the act on the plurality of personal laws and the lack of a uniform civil code.[10]. The Calcutta High Court in 2015 where Justice Indira Banerjee had disagreed with Justice Indrajit Chatterjee’s on the acquittal of a rape accused provides another example[11]. While Justice Chatterjee found it a good case of acquittal due to the absence of any external injury or body marks, on the contrary, Justice Banerjee held, “a mere act of helpless resignation in the teeth of compulsion” did not amount to consent by the victim.

Many female Judges fear being termed as “Feminist” and of sounding unfair.[12] That does not necessarily discredit that women judges are imperative. They are more likely to bring attention to women’s issues and bring in fresh perceptions on gender roles along with their views about what society could consider reprehensible socially as opposed to only rebuking what is not permitted by the law in a black and white manner. Collaborative projects are trying to redefine judgments from a feministic jurisprudence, one such is the Feminist Judgments Project, India. With more women on the bench, judgments can be expected to be more gender-sensitive if not swathed with a feminist hue.

Greater endeavour needs to be made for the bench to be more representative to be truly inclusive. With the hopes that women entering into the judiciary are not repeatedly given a “slap down”, at every turn and legitimate the inequalities that already exist. Therefore, showing more support in judicial roles with a stronger commitment to the cause of women’s representation in the judiciary and the collegium is the need of the hour.

Sources:

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[1] Jaising, I. (2017, April 6). Nikki Haley is right. Gender discrimination is a reality in the Indian judiciary. Hindustan Times. https://www.hindustantimes.com/opinion/nikki-haley-is-right-gender-discrimination-is-a-reality-in-indian-judiciary/story-EW8xEsts2Eut5fJrBXT9UJ.html.

[2] Sodhi, T. (2021, May 21). Missing: Women judges in India’s higher judiciary. Newslaundry. https://www.newslaundry.com/2021/05/21/missing-women-judges-in-indias-higher-judiciary.

[3]  Livelaw (2021, April 16). Summer of the patriarch. https://www.Livelaw.in/Columns. https://www.livelaw.in/columns/summer-of-the-patriarch-supreme-court-women-judges-chief-justice-bobde-172641.

[4] Vidhi Centre For Law & Policy Search (2018). Tilting the Scale. https://vidhilegalpolicy.in/wp-content/uploads/2020/06/180212_TiltingtheScale_Final.pdf  

[5] Shruti Sundar Roy (2020). The Higher Judiciary’s Gender Representation Problem — Article14 — Justice · Constitution · Democracy. Article 14. https://www.article-14.com/post/the-higher-judiciary-s-gender-representation-problem.

[6] Chandra, Aparna and Hubbard, William and Kalantry, Sital, From Executive Appointment to the Collegium System: The Impact on Diversity in the Indian Supreme Court (July 9, 2019). Cornell Legal Studies Research Paper No. 19-26 (2019), University of Baltimore School of Law Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=3417259 or http://dx.doi.org/10.2139/ssrn.3417259.

[7] Shruti Sundar Roy (2020). The Higher Judiciary’s Gender Representation Problem — Article14 — Justice · Constitution. Democracy. Article 14. https://www.article-14.com/post/the-higher-judiciary-s-gender-representation-problem.

[8] Capurso, Timothy J. (1998) “How Judges Judge: Theories on Judicial Decision Making,” University of Baltimore Law Forum: Vol. 29 : No. 1 , Article 2. Available at: http://scholarworks.law.ubalt.edu/lf/vol29/iss1/2

[9] Hunter, Rosemary “Can feminist judge make a difference?” International Journal of the Legal Profession. 15.1- (2008) 7-36.

[10] Sen, J. (2016). Righting Sarla Mudgal v Union of India and Others. Jindal Global Law Review, 7(1), 97–112. https://doi.org/10.1007/S41020-016-0020-0

[11] Lachmi @ Lakshmi Kanta Kamath vs The State Of West Bengal on 4 March, 2015.

[12] Hunter, Rosemary, Feminist Judging in the ‘Real World’ (June 18, 2018). Oñati Socio-Legal Series, vol. 8, n. 9 (2018), Available at SSRN: https://ssrn.com/abstract=3198259