Tailoring Legislative Provisions or Falling Back on the Constitution?
Justice delivery in India suffers from a patriarchal bias. A representative gender jurisprudence approach would not only mean more female representation in courts but would also create a more equitable justice system. This would increase the willingness of women to seek justice and produce judgments that better reflect the diversity of Indian experiences. A formal approach to equality and a protectionist approach to gender difference has overwhelmingly influenced the Indian judicial approach The Indian judicial approach portrays equality as likeness and comprehends gender differences in a way that deems women to be weak and in need of protection. Select provisions only impact women and thereby have the effect of differentiating between men and women. A substantive equality approach, if implemented, would focus more on the law’s impact than on equal treatment promises.
This approach seeks to eliminate substantive inequality of disadvantaged groups in society. The focus is not on their differences but on whether their treatment in law contributes to their historical and systemic disadvantage. Differences do not preclude entitlement to equality but rather are embraced within the concept of equality. Within this model of equality, differential treatment may be required not to perpetuate the existing inequalities, but to achieve and maintain an actual state of effective equality. The basic difference between ‘gender’ and ‘sex’ is that the former is perceived through social functions and the latter is a biological process. However, the lack of distinction between the terms in constitutional jurisprudence often conflates their usage.
Critiquing Judicial Structures through a Gendered Lens
Out of the twenty-seven sitting judges in the Supreme court, only one is a woman. The gender gap in India’s Apex Court is far more glaring than one even in the parliament, partly due to the lack of reservations for women. Since its inception, the Supreme Court has had only eight women judges. In a country where 48% of the population is female, of the 245 judges who have made it to India’s highest court, less than 3.3% have been women. No woman has served as the Chief Justice of India.
The proportion of women judges is decreasing in the career progression of the lower Judiciary. If we assume they are both equally worthy, the ratio of male to female judges should remain uniform throughout all rungs of the lower Judiciary, thoughthere is a lack of public data available for the lower Judiciary. Furthermore, this topic receives lesser attention in academia and policy. This data is important for the increased diversity and inclusion in public institutions. It helps underscore the areas in which reform is needed. The Judiciary also functions as an organ of social welfare, especially with regard to Public Interest Litigation, which may be used to enforce policies that bring about gender parity.
Identifying the Barriers that Prevent Women from Entering and Rising in the Judiciary
Factors of age and family responsibilities also affect the lack of elevation of women judges from subordinate judicial services to higher courts. Societal pressure often imposes a larger share of familial and childcare responsibilities on women, thereby reducing the focus on their careers. Strict age requirements prevent women from making it to the high courts or the supreme court.
This also brings us to the ‘leaking pipeline phenomenon’, wherein many employed women quit the workforce mid-career when their children are preparing for high school diploma exams and their parents need additional care. India has one of the world’s largest gender pay gaps in unpaid care work. Direct recruitment from the bar, which accounts for a quarter of district-judge appointments, is similarly impeded by eligibility criteria that fail to consider the differential familial expectations from women. To be eligible to be a district judge, an advocate must have a minimum of seven years of continuous practice. This could be a disqualifying criterion for many women advocates because of the intervening social responsibilities of marriage and motherhood that could be preventing them from having seven years of continuous practice.
While Art. 233 of the Indian Constitution provides that appointment as a district judge requires not less than seven years as an advocate, the Supreme Court has upheld the interpretation to mean continuous practice. This rule needs to be re-interpreted to include sabbaticals practitioners may take to tend to caregiver responsibilities. Lawyers who are directly elevated from the bar make up a significant portion of judges in the higher Judiciary. Women only make up 15% of all enrolled advocates in the country, even though there is no shortage of women entering the legal profession; women comprised 44% of candidates that qualified in the 2019 Common Law Admission Test for National Law Universities.
Courts in India were only built to cater to non-disabled upper-caste men on a social and infrastructural level. They lack washrooms for women, let alone nursing spaces or sanitation product machines. The lack of childcare facilities is also exclusionary towards women lawyers who have children. Women judges and advocates also face rampant gender bias and workplace harassment. Sexist language and its tacit acceptance by benches make the work environment hostile for women, even more so for women from marginalized backgrounds. Providing essential infrastructural reforms and gender sensitivity training in courts will give rise to women judicial officers and advocates.
With the lack of women in these spaces, the bias and discrimination against them increase. Higher numbers, and greater visibility, of women judges, can increase the willingness of women to seek justice and enforce their rights through the courts. It is valuable to have representation of various marginalities in the Judiciary because of their different lived experiences. The Judiciary also represents the Brahminical patriarchy by ignoring the representation of Dalit and Adivasi women.
The Supreme Court recognized that disadvantaged persons might have to be treated differently to be treated equally. Women are understood as a historically disadvantaged group, and as such, in need of compensatory or corrective treatment. Within this approach, the gender difference is often seen as relevant and requiring legal recognition. If the legislation or practice is based on a stereotype or assumption that women are different, weaker, or in need of protection, it would not be upheld.
Mapping the Impact of Gender Equality in the Judiciary
The entry of women judges into spaces from which they had historically been excluded has been a positive step in the direction of judiciaries being perceived as being more transparent, inclusive, and representative of the people whose lives they affect. By their mere presence, women judges enhance the legitimacy of courts, sending a powerful signal that they are open and accessible to those who seek recourse to justice. This can be achieved by providing reservations for women in all levels of the Judiciary, but especially the higher Judiciary, as some states have put reservations in place at the lower level.
For instance, Justice Gita Mittal was the chairperson of the committee that designed the Vulnerable Witness Project, which ensured that witnesses would not have to face the accused and could share their testimony in a comfortable and confidential space. Another significant example is Justice Leila Seth, who, as a member of the 207th Law Commission of India, was instrumental in bringing about amendments to the Hindu Succession Act, 1956, which secured daughters’ inheritance rights over ancestral property. She was also part of the three-member Justice Verma committee, set up in the aftermath of the gruesome 2012 Delhi gang rape case, which recommended speedy trials and more stringent punishments for sexual offences.
Conclusion
The substantive equality approach upholds rules or practices that treat women differently from men if such rules or practices are designed to improve the position of women. Diversity in public institutions (such as gender, caste, religion, ethnicity, social and economic backgrounds, physical ability) arguably sensitises the institutions to community needs, enhances social dialogue, and improves communication across society.
This is not the first time the lack of representation has been flagged as a concern. The National Commission for Scheduled Castes (2011) recommended that reservations for Scheduled Castes (SCs) and Scheduled Tribes (STs) be introduced in the Judiciary to ensure greater representation. The 99th Report on the Department-Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice (2019) recommended reservations for women in state judicial cadres and law schools. However, these measures need to be implemented to have an impact on the lives of women in India.
To be truly inclusive, the Indian Judiciary would need the representation of judges from not only different gender identities, including trans and non-binary, but also different caste, socioeconomic, religious, and regional backgrounds. It would also mean the appointment of judges from marginalized sections to allow for the representation of intersectional voices. Thus, the failure of a rule or practice to consider the particular needs of disabled persons, thus perpetuating this group’s historic disadvantage, would constitute discrimination and violate their rights.
About the Author
Astha Madan Grover is an undergraduate student reading Law at the National University of Juridical Sciences (WBNUJS), Kolkata. She has previously interned with the Hon’ble Chief Justice of India, Dr D.Y. Chandrachud, and the World Bank. Her academic interests lie in gender, technology, policy, and constitutional law.
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