We claim that India is a secular and diverse nation, but when we discuss the Indian judiciary, the question of whether it is diverse arises. When we discuss Joyita Mondal, the first transgender judge in India, and Anna Chandy, the first woman to hold the position of a high court judge, why is it so that women and people who are identified as sexual minorities are the main victims of gender inequality? Since the beginning of time, women and transgender people have been explicitly recognized as members of “the people,” and because they are not included in this gender-neutral category, their voices are silenced in the legal system.
DISCRIMINATION AGAINST WOMEN:
The gender gap in the legal profession is caused by a wide range of factors. Women face greater challenges and are skepticized of their ideas and abilities at work in part because of the perception that they are less competent than men and lack leadership potential. The survey indicates that religion has a sizable influence. Among the 73 women who took part, 57 were from the Hindu community, 15 were Muslims, and 1 was Christian. Christians make up a shockingly large portion of India’s educated classes, despite this. Hindu women are also freer to pursue a legal career than Muslim women. In some firms, only single women are given preference as opposed to married women who frequently face family pressure due to which they tend to opt out of the legal profession. There was an instance where the bench of the supreme court was headed by all-women members comprising Justice Gyan Sudha Mishra and Justice Ranjana Prasad Desai, but it was considered as an ‘accidental’ constitution occasioned as it was headed due to the absence of the presiding judge Justice Aftab Alam. Here the use of the word ‘accidental’ indicates that women are still not thought to be capable enough as independent workers or to perform better than their male counterparts.
Men are said to be more likely to initiate negotiations, exhibit domineering or aggressive behavior, and self-select into competitive environments to advance professionally, whereas women are thought to be too delicate to handle such circumstances. Despite doing more business than their male counterparts, most female accomplices must deal with stark pay disparity. There is still a handful of districts in India with no women judges. The vast majority of young women in India have consistently aspired to become advocates and lawyers, and over the years, India has seen incredibly fit and excellent women succeed in the legal field. However, there are still a small number of districts in India that do not have any female judges. The constitution of India also gives power to women through the fundamental rights under Article 14(Right to Equality), Article 15(Prohibition of discrimination on the grounds of religion, race, caste, sex), Article 19(Freedom of Speech and Expression), Article 19(1)(g)(Right to practice any profession or carry out any occupation).
DISCRIMINATION AGAINST THIRD GENDER COMMUNITY:
As we all know, Indian history has a diverse range of religious communities in which the concept of Hijras and other transgender people has been recognized since ancient times. The Hindu sacred epics Ramayana and Mahabharat provide reliable existence of the third gender becoming an integral part of the ancient texts; however, they are still considered social outcasts and are constantly discriminated against at work. We believe we live in the modern era, but when we look closely, we see that members of sexual minorities are still not accepted in India. There are still people who are unaware of their basic rights, both in general and in the legal profession. Despite being such a large portion of the population, so-called stereotypes in society do not regard them as respected individuals who deserve to be treated like regular people. They are constantly being mistreated by their co-workers, unprepared employers, and cultural obstacles, which makes it difficult for them to survive and stand up for themselves. Tragically, transgender employees still frequently encounter targeted harassment and discrimination at work even though there are some trans-friendly workplaces. These communities continue to struggle with overcoming socioeconomic culture and fighting for their constitutional rights. Transphobia, a term that spreads bias and hatred toward the community, was born out of discrimination against transgender people.
Speaking of Sathyasri Sharmila, who faced a torrent of abuse, discouragement, and taunting remarks for becoming the first transgender person in the state of Tamil Nadu, and probably one of the few in the country, demonstrates how members of this community have been mistreated and harassed by the masses, and how difficult it was for her to even enroll for the bar council examination. They are frequently passed over for promotions because of their gender, and they are also prevented from directly contacting clients to maintain a stable and respectable reputation in the market. They are occasionally also the victims of physical violence and are sexually assaulted. This results in them constantly being harassed by co-workers and asked inappropriate questions about their gender identity or surgical status, which makes their surrounding environment very uncomfortable. They are always concerned about their physical safety because they do not have access to separate restrooms in workplaces. There are also many sexist jokes made by their opposing counsel, and they are sometimes harassed by the court’s “respectable” judge. There is no proper representation of transgender people, as well as a lack of affirmation and notion biases, due to a lack of awareness, acknowledgment, and acceptance among the general public. Transgender employees are subjected to widespread pressure to remain secretive as a result of the discriminatory treatment they endure, which causes them to conceal their transition or gender at work.
The Senior Advocate Saurabh Kirpal case is the best illustration of how the legal system and profession still discriminate against members of the queer community—including lesbians, gay men and women, bisexuals, transgender people, and intersex people—based on their gender and sexual orientation. The first openly gay judge in India’s higher judiciary will be Saurabh Kirpal. The reason for his appointment’s delay is indirectly related to his sexual orientation. Section 377 of the Indian Penal Code defines sex as being “against the order of nature” and was read down by the supreme court. The legal system adheres to a dominant heteronormative binary culture that sees only two genders—male and female—and holds that an intimate relationship only counts as valid when it involves people of the opposite gender. According to Section 3 of the Transgender Act, it is unlawful for both the government and private individuals to treat transgender people unfairly in employment situations, including by denying or terminating employment based on gender identity.
Women’s and minority community issues have long-term consequences for their health, careers, and retirement, and one in every three workers has experienced it at work. The system put the burden on the victims to take action against the discrimination committed against them. With this new change, employers are now responsible for ensuring workers’ safety from all forms of ill-treatment—not just when they walk into their workplace, but also on their way to and from work, and in all work-related communications. Several key recommendations for them are addressed in the new laws. For people’s pronouns to be used correctly in the supreme court’s orders and judgments, a queer attorney who represents clients before the court has written to the Chief Justice of India asking that the appearance slips in the supreme court be changed to include an additional column for mentioning people’s pronouns. The new laws and conventions won through collective action and union initiative will ensure that these rights are enshrined in law. They are an investment in the future of working women and transgender members, which is reason to rejoice.
Author(s) Name: Pooja Manve (ILS Law College)