PATRIARCHY IN INDIAN COURTS

INTRODUCTION

To honour the idea of entry of women into a predominantly male institution, the Supreme Court observed the first-ever “International Day of Women Judges” on March 8 of this year.[1] On International Women’s Day, the Kerala High Court made history by forming a full bench of only female judges.[2]  This seems like a step forward in the right direction when it comes to banishing patriarchy in the courts. However, currently out of the 713 judges, 94 of them are female judges in the High Court (13.18 per cent). This represents a marginal increase from the 73 women out of 661 High Court justices (or around 11% as of April 2021) statistics. From 1950 to 2020, the Supreme Court-appointed 247 judges, only 8 of whom were women, accounting for only 3.2 per cent of total appointments.[3] No female judges served on the Supreme Court bench during the first thirty-nine years of its existence.[4] The percentage of women judges in high courts is only 11.5 per cent, while the Supreme Court has four sitting women judges out of 33 in office. Women lawyers in the country face similar challenges. Only 15% of the 1.7 million registered advocates are women. [5]The Madras High Court has the most female judges, with 13 out of a total of 55 on the bench. The Madras High Court has previously had two female chief justices, Indira Banerjee (2017-18) and Vijaya Tahilramani (2018-19)[6]. During the same period of 15 years, the Apex Court has had nine female judges, along with the four who are currently on the bench. However, only one woman, Justice Indu Malhotra, was a practicing lawyer in the Supreme Court. When their names were recommended, the other eight were sitting judges of various HCs. 

Women lawyers say the struggle for them continues, even though their numbers have gradually increased since the Legal Practitioners (Women) Act was passed in 1923, allowing them to join the profession. The Supreme Court Collegium recently recommended 192 candidates for High Courts, of which 37, or 19%, were women. However, only 17 of the 37 women recommended have been appointed thus far.[7] Although the majority of High Courts have made an effort to have at least one female judge on the bench, 5 of the 25 High Courts in the nation have no female judges.[8]

PROBLEMS

There are several reasons why there is a lack of women’s representation in Indian Courts, the pivotal being patriarchy. A patriarchal mindset is something that is deeply rooted in a country like India. There is a lack of respect when it comes to the treatment of women in courts. Women judges are often talked down to and male judges’ opinions are considered to have more weightage than a woman’s. They constantly have to face harassment or judgmental looks while working.[9]

  1. Familial Responsibility: One of the primary reasons that are stated again and again when talking about the underrepresentation of women in courts is their familial responsibility. They also influence the advancement of women judges from the lower courts to the higher courts. The same is not said about a man because of the patriarchal mindset of society. While some concede to this notion, many speak ill of this cause. According to them, the reason for the lesser number of appointments is collegium not considering women rather than this excuse.[10]
  2. No Women Reservation: Many states have a policy of reservation for women in the subordinate courts, which does not exist in the High Courts and Supreme Court. Assam, Andhra Pradesh, Telangana, Odisha, and Rajasthan have benefitted immensely from such reservations, with 40-50 percent of judicial officers being women. Despite public support from all major political parties, the Bill for 33 percent reservation for women in Parliament and state legislatures has yet to be passed[11]
  3. Not Enough Role Models: Since there is already a lack of women in litigation, newcomers also don’t feel comfortable practicing litigation. Young girls do not aspire to become a judge simply because there aren’t enough role models. 
  4. Judicial Infrastructure: There is a lack of even bare necessities such as washrooms and child care facilities in lower courts. There aren’t enough female lawyers practicing in court in the first place and therefore all of this disincentives the newcomers in the field. 
  5. Lack of Attempts: In many people’s opinions, the judiciary isn’t making the required efforts to bring a change. Women constitute approximately half of the total population in India, and a large number of women are available for promotion in the Bar and judicial services; however, the number of women judges is small.

SOLUTIONS

Several solutions should be taken up by the judicial system of India to give equal chances to everyone in this field. If this happens, women may be more inclined to use the legal system to seek redress and defend their rights if there are more and more prominent female judges. A similar gender on the bench can put a complainant of the same gender at ease. Suppose a transgender might feel safer around a transgender on the bench. Firstly, the elevation of women in higher courts should not stop simply on the assumption of familial responsibility of women. Equal chances should be given to all genders and there should be no disparity when it comes to recommendations. Reservation has helped states like Rajasthan and Andhra Pradesh. Offering a simple 33% reservation for women in higher courts can help states such as the government should build additional washrooms and childcare facilities in lower courts. There should be more incentives offered by the government when it comes to women and practicing law. Sensitization sessions by eminent women lawyers in schools and colleges can also make a huge difference. Collegium should keep in mind the current status of courts in India while making decisions on the elevation of judges. 

PATH AHEAD

In India, women have held higher positions such as President, Prime Minister, and Speaker, but they are still underrepresented in higher judicial positions such as CJI, Attorney General, and Solicitor General. The lack of female judges in the higher judiciary has been raised several times in Parliament and deliberated by prominent panels at numerous legal discussions. Justice Nagarathna’s elevation, in particular, is being viewed as the proverbial collapse of the glass, as she is set to become India’s first female Chief Justice in 2027, albeit for only 40 days.[12] It’s high time we break this stereotype and make the judiciary a place where everyone is treated equally. 

Author(s) Name: Aditi Singh (Dr. Ram Manohar Lohiya National Law University, Lucknow)

Reference(s):

[1] Debayan Roy, ‘Supreme Court to commemorate first ever ‘International Day of Women Judges’ on ibudh 10’ (Bar and Bench,  9 March 2022) <https://www.barandbench.com/news/supreme-court-commemorate-first-ever-international-day-of-women-judges-march-10#:~:text=Debayan%20Roy&text=The%20Supreme%20Court%20of%20India,’%20on%2010%20March%2C%202022>  accessed 16 June 2022.

[2] Hannah M Varghese, ‘Women on the bench’ (LiveLaw, 16 May 2022) <https://www.livelaw.in/top-stories/women-on-the-bench-madras-high-court-leads-with-13-women-judges-followed-by-delhi-199268> accessed 11 June 2022.

[3] ibid.

[4]Gyaaneshwar Joshi, ‘Patriarchy and the Indian Legal System: search for a female CJI’ ( iPleaders,22August 2021) <https://blog.ipleaders.in/patriarchy-indian-legal-system-search-female-cji/?amp=1> accessed 16 June 2022.

[5]‘Representation of Women in Judiciary’ (Drishti IAS, 11 March 2022) <https://www.drishtiias.com/daily-updates/daily-news-analysis/representation-of-women-in-judiciary#:~:text=What%20is%20the%20State%20of,%2C%20only%2015%25%20are%20women> accessed 14 June 2022.

[6] ibid.

[7]ibid.

[8] Gopal Sankarnarayanan , ‘Women, Domestic Responsibilities and Indian Grand Patriarchy’ (The Wire, 16 April, 2021) <https://m.thewire.in/article/women/women-domestic-responsibilities-and-indian-judiciarys-grand-patriarchy> accessed 12 June 2022.

[9] Chandan Karmhe, ‘The year is 2020 and Indian Women continue to be under-represented in Law’ (Live Wire, 7 December 2020) <https://livewire.thewire.in/gender-and-sexuality/woman-judges-lawyers-leaky-pipeline-legal-system-supreme-court/> accessed 13 June 2022.

[10] Supra (n 6).

[11] Supra (n 3).

[12] Supra (n 2).