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Power of Women in the Judiciary

Imagine you’re a petitioner’s counsel and are presenting a serious case of a transwoman’s police appointment in a High Court, and mid argument, the judge calls you out and says, “Your hairstyle is more attractive than your argument.” The amount of humiliation you would face surely would not be less than what CSK fans are facing this IPL season. And your brain might buffer for a while trying to find logic in the above statement. Along will come your utter disbelief in the system which appoints High Court judges. This is only one of the many demeaning instances faced by female advocates who decide to take up litigation, as Senior Advocate Indira Jaisingh recalls.

Not going deep into the details and having just a brief overview of the percentage of women judges in all of the High Courts and the Supreme Court in India will reveal the disparity very vividly. There are only 80 women judges out of 1,113 judges in India (High Courts and Supreme Court). After the retirement of Justice R. Banumati on 19 July 2020, there are only 2 women judges in the Supreme Court of India, namely Justice Indu Malhotra and Justice Indira Banerjee. As per the data provided by Union Minister Ravi Shankar Prasad High Courts of Patna, Manipur, Telangana, Tripura and Uttarakhand have no women judges at all. High Courts of Guwahati, Himachal Pradesh, Jammu and Kashmir, Jharkhand, Rajasthan and Sikkim have one woman judge.


REASONS

Why even after 70 years of the establishment of the Supreme Court of India in 1950, there is a minimal participation of women in litigation. Some reasons might have immediate solutions, some others may not.

While the percentage of women enrollment in law colleges isn’t alarming as such, this percentage keeps on decreasing drastically as we move up the stages of the profession. The lower courts which have three distinct tiers of judges, namely, district judges, civil judges (senior division) and civil judges (junior division), consists of only 27.6% of women judges.

One reason is the infrastructure of district courts and even some High Courts. There is a serious dearth of women washrooms in certain High Courts, and if they are present, poor sanitation becomes the issue. Absence of facilities like crèches and paid maternity leaves adds to the inconvenience of women in the government field of the profession.

The social attitudes and prejudices that still surround the women in the profession stand as another legitimate reason. The gender biases, discrimination and sexual harassment are just another regular ordeal for women which further them from litigation.

A person can be appointed as a district judge if they have been for not less than seven years an advocate or pleader and is recommended as a High Court for appointment. This seems like a fairly appropriate qualification but what prevent the female to attain even this minimum requirement are the societal responsibilities and expectations from her. Intervening social responsibilities expected of women that come complementary with marriage and having children avert them from having a continuous practice. This further prevents them to climb up the ladder of success in the profession.


RESEERVATIONS

While, in some states, reservation is provided to women in the lower judiciary in consultation with the High Courts, there is no provision for reservation in the higher judiciary. These include the states of Jharkhand, Karnataka, Rajasthan, Telangana and Bihar. The effect of reservation is mixed and inconclusive as Bihar and Jharkhand are the states with lowest percentages of women judges, 11.52% and 13.98% respectively. Other states include Gujarat (15.11%), Jammu and Kashmir (18.62%) and Uttar Pradesh (21.4%). Thus, it cannot be inferred that reservations, at least the current reservations are effective.


CONTRIBUTIONS

Regarding the cases of gender discrimination, having even a single woman on the bench can have a drastic effect on the decision of the bench.

Justice Gita Mittal who has been recently appointed as the Chief Justice of the High Court of Jammu and Kashmir contributed greatly to the Indian judiciary with the Vulnerable Witness Project which “provides protection, privacy, confidentiality and comfort to vulnerable witnesses in an in-camera atmosphere” in cases of sexual offences. This project was introduced in 2013. It prevents the witness from turning hostile and giving false testimonies.

Justice Leila Seth, who was the first woman Chief Justice of a High Court (Himachal Pradesh) was the part of the Law Commission from 1997-2000. She recommended equal succession rights for daughters in ancestral property, thus reforming the Hindu Succession Act, 1956. She was also the part of the Justice Verma Committee which was set up after the horrific 2012 Delhi gang rape case. She proposed “punishment for causing death or vegetative state should be rigorous imprisonment for no less than 20 years.” She was also known to be an active part of gender rights and LGBTQ+ rights.

The contribution of women, thus, in the field has been of immense importance and they cannot be dismissed as being less competent.


CONCLUSION

Justice Leila Seth not so fondly recalls the incident when she became the first woman to top the London Bar Exam in 1958 while being married and a mothering two children, a newspaper article in a snarky way titled her “mother-in-law”. Such sarcastic and demeaning comments are still faced by women in the field which are gracefully wrapped in the veil of “Oh, it’s just a joke”. This has widened the gap between women and litigation. India has been a free and independent country for more than 7 decades now; however, we are still slaves of our prejudices and the need to demean others to feel comfort in self. While there have been talks of gender- sensitization techniques to be adopted, we still have a long way to go.

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