Posted by Nabeela Siddiqui and Arjun Philip George

The Indian judiciary is the protector and guardian of fundamental rights. However, like any other creation of human intellect, the judges who are the role players of the judiciary do reflect the societal sentiments and sensitivities. Therefore, by ensuring the presence of divergent voices that are essential to neutralising the social evils of sexism, casteism, nepotism and political extremism that are antithetical to the notion of justice, it is essential for the system to strike a balance. The unequal gender power relation in various institutions is the age-old form of discrimination that has been the reason for subjugation and oppression of women, gender and sexual minorities, caste-based discrimination and so on so forth. 

The under-representation in the judiciary adds further burden to the continuing struggle to attain social, political, familial and economic justice. The penal provisions criminalising adultery and homosexuality which were in existence in the constitutional State of India are indicative of the systems’ legal struggles. The transparent gender gap that is evidently present in the lower and higher judiciary of the country even after 70 years of its inception is therefore important for the nation to question, challenge, and address.

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Since 1950, the Supreme Court has had only eight female judges out of the total 239, as recently highlighted by various national news forums. 73 judges out of the 670, High Court judges in the country are women, which roughly comes to 11 percent. There had only been two all-women Benches in the Supreme Court since its establishment in the 1950.The collegium system of selecting judges of the higher judiciary has been widely criticised for its reflections on gender, politics, patriarchy etc. which paved the way for an emending search for a better alternative. The percentage details of women judges of the higher judiciary can be deciphered from public data and news reports since the higher judiciary is the subject of much academic inquiry. But for the lower judiciary such data is neither quite easily available nor do academic and policy-makers show zeal in its study.

Individual preferences are shaped by a personal evaluation of one’s own circumstances (e.g. education, skills, income) and the perceived experiences (e.g. stability, childhood, adolescence). The socio-economic conditions and constraints imposed on households, communities and countries are therefore the result of personal “preferences” as well as the opportunities and actions of women and men. In addition, with regard to social standards and gender roles, they are influenced by what is considered acceptable by the family, community or society. In order to avoid the detrimental consequences of social exclusion, insecurity or other social sanctions, including violence and discrimination, women and men tend to conform to social norms.

The “men as breadwinners” model was particularly preferred in the Eastern European countries (52 per cent), Asian countries (between 45 and 55 per cent), as well as in South Africa (51 per cent). It was to the lowest degree preferred in Northern, Southern and Western Europe (23 per cent) and in Northern America (29 per cent). Gender inequalities at home and at work also stem from gender-based representations of men and women’s productive and reproductive roles that persist across different cultures and socio-economic contexts.

As a significant proportion of judges in the High Courts and the Supreme Court are lawyers raised from the bar to the bench, it is worth noting that the number of women advocates is still low, reducing the pool from which women judges can be selected. While data is not available on the number of women in the legal profession as a whole, a 2020 news report estimates that women make up only 15% of all enrolled advocates in the country.

Justice Bertha Wilson of Canadian Supreme Court aptly points out that female judicial appointments can shift gender stereotypes, thereby changing attitudes and perceptions. Here, the authors would like to highlight a reservation to Justice Bertha’s opinion. Whereby, the authors believe an institution that integrates a gender perspective and advances gender equality will be an institution that fairly applies the law to everyone; does not discriminate on the grounds of sex, sexual orientation, gender identity or expression; and actively promotes the transformation needed to achieve gender equality. International law also requires States to take concrete measures to address these imbalances and deficits. General international standards put flesh to the international obligations concerning the independence of judiciary, and the international legal requirements ensure enjoyment of human rights based on equality and non-discrimination. 

Indeed, certain international gender equality standards specifically and expressly address women’s right to equal participation in public life and equal access to, and representation within, the judicial profession. A sanctioning environment for gender justice requires a supportive legal framework, which is created when a country accedes to, ratifies, and implements international and regional human rights treaties which include the principle of gender equality and translates them into their municipal law (law in action).

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The increase in the numbers of diverse judges can increase the willingness and confidence of citizen’s to seek justice and enforce their rights through the courts. The presence of diversity is quintessential to the legitimacy of the judiciary, and it translates the high-speaking values of the Constitution and the public’s trust through its practice and adjudication. Inclusiveness and plurality in the judiciary may be one of the attributes of judicial freedom to broaden the spectrum of the decision and retain a ‘regulation and balance’ on the judges’ perhaps less addressed prejudices, since they are individual. On a more strategic level, equal access to justice means people of diverse sexual orientations, identities, and expressions, being equally able to influence (trust-building mechanism) and participate in shaping the law and justice in the system.

The attempts to indirectly brand professional and scholarly women, of socially marginalised sexual and political minorities, as insignificant should be subject to revision because the future of the nation will be affected by such a positive change in social attitude. The nature of the institution of justice is not reflected in its ivory towers or fancy judgments that are foreign to the world around it, but in the manner in which a chance of representation is given to the marginalised and the socially oppressed.

Women entering the legal profession are not in poor shape. Nearly half of the applicants taking law courses were women, either through the Common Law Admission Test for National Law Universities or at State/Central Universities. Despite the close parity between women and men entering law school, not all law graduates turn to litigation. Transactional work is also an option in corporate law firms and in-house counsel positions. The issue of representation does not end with the elevation of female judges, but we must look for a holistic perspective. The issue of discrimination is not limited to the gender-insensitive design of the courts, but extends from everyday examples of gender bias that women lawyers and judges experience, sexual harassment in the workplace to all aspects of the judicial system.

Inclusivity in terms of caste, gender, sexual orientation must be ensured. Enforcing what has already been enshrined in our Constitution (several years back), is the need of the hour. The scales of justice though can never be expected to be ideal. It should be properly and efficaciously managed in a manner which it accommodates the alienated and the marginalised social groups. Women rights groups, and champions of inclusivity must take this as opportunity to ensure diversity in benches. The constitutional process of Indian democracy have miserably failed to ensure the presence of diversity and hence should strive relentlessly to serve what is rightly due to those who are denied justice from time immemorial.   

References

1. International Labour Office (ILO). 2002. Framework guidelines for addressing workplace violence in the health sector (Geneva).
2. – 2017c. Improving employment and working conditions in health services (Geneva).
3. Munoz Boudet, A.M.; Petesch, P.; Turk, C. 2013. On norms and agency: Conversations about gender equality with women and men in 20 countries (Washington, DC, World Bank). 

Nabeela Siddiqui is pursuing her Doctoral studies. Prior to which she was working as a Research cum Teaching Assistant at National Law University, Jabalpur and as a Judicial Clerk at the National Green Tribunal, Principal Bench, New Delhi. She can be reached at Instagram and LinkedIn.

Arjun Philip George is an incoming Doctoral student. He completed his LLM (first rank holder) from Central University of Kerala, Kasaragod and his BA LLB (Hons.) from Christ (Deemed to be University), Bengaluru. He cleared the University Grants Commissions National Eligibility Test in the year 2018. He can be reached at Instagram, LinkedIn and Facebook. 

Featured image source: SheThePeople