The under-representation of women in the judiciary came to light last year when Justice J.S. Khehar, while looking at ways to improve the collegium system, wondered aloud: “The ratio of female judges to male judges must be in the same ratio.” A written representation filed by the Supreme Court Women Lawyers Association before the Bench presented the numbers, which showed that Justice Khehar was off the mark — in the High Courts of India, there are merely 62 women compared to 611 male judges. This is piffle in these days of increasing sex ratio. One may ask, as Justice Khehar did: “What is the ratio of women and men at the Bar?” This is an important question, but numbers alone cannot determine quality and diversity. There are other questions that need to be asked too. How many women are designated as senior lawyers? How many women head law firms? How many women become judges? How many women become Chief Justices? Certainly, they will be fewer than men. Including women in the judiciary by making allowances for the ‘gendered’ hurdles in their path would be constitutionally wise. Such an effort would meet the golden bar of substantive equality. The demand is not a 50:50 ratio, but even the elusive parliamentary reservation of 33per cent of women seems far away.
Occupational hazards There are High Courts in India that do not have even one woman judge. It was only in 1989, four decades after Independence, that the Supreme Court had its first woman judge. There have been five more since then. It is said that the elevation of one of them was very carefully timed so that a woman would not become the Chief Justice of India. It is probably baseless, but it is easy to believe considering the deeply entrenched male slant. The National Judicial Appointments Commission judgment states that the executive may hesitate to appoint someone because of their sexual orientation. The same Court vide the judgment in Suresh Kumar Kaushal v. Naz Foundation set aside the Delhi High Court judgment, and people of different sexual orientations were pushed back to status quo ante. The comment that the executive will hesitate to appoint a gay judge is interesting in this context, especially when the position of women is so unequal even after the collegium started making the selection.
This is not a problem unique to India. There is a conversation between Baroness Brenda Hale (Supreme Court of the U.K.) and Ruth Bader Ginsburg (Supreme Court of the U.S.) on YouTube. It is gratifying that they are introduced as two of the most distinguished jurists of our times and not as two women judges. During the conversation, they also explain what it is to be a woman in a man’s world. Baroness Hale says with a smile that even when she was first made senior judge, the law reports listed her below her male colleagues. And it was only after she entered the Privy Council that the rooms were remodelled to make a woman’s restroom. Similarly, it was only around 2000 that the Trichy District Court campus, one of the oldest district courts in Tamil Nadu, had its own restroom for women. Until then, believe it or not, women lawyers would run across the campus, even jump over the wall to go to some other building which had a restroom. These are the professional hazards that women lawyers face, so equality in terms of numbers follows later.
An increased presence of women on the Bench would definitely expand the jurisprudence to be more inclusive, equal, and just. Justice Sotomayor’s dissent in Schuette v. BAMN is very powerful (In this case, the question was whether a state violates the Equal Protection Clause of the Fourteenth Amendment by enshrining a ban on race- and sex-based discrimination on public university admissions in its state constitution). She argued that the democratic process does not in and of itself provide sufficient protection against the oppression of minority groups, which is why the Equal Protection Clause of the Fourteenth Amendment exists. She dissents not because she belongs to an ethnic minority but because her life’s experiences have given her a deeper insight into discrimination.
When I became a judge, a reporter asked: “Madam, will you be deciding cases in favour of women?” I directed him to the three male judges who were elevated on the same day: “Ask them if they will decide cases in favour of men.” But to answer his question, of course the woman judge will not be biased towards women, but will understand the realities of the woman’s life with greater clarity. In her Schuette dissent, Justice Sotomayor referred to the testimony of the Dean of Admissions of the law school that there may be “a decline in minority admissions because, in her view, it is impossible ‘to get a critical mass of underrepresented minorities… without considering race.’”
The same is true of gender. It is impossible to get a critical mass of women on the Bench without considering gender. There are many deterrents for a woman practitioner of law who is an aspirant to the Bench, all created by the realities of history. They should be removed by those who make the selection by considering gender and its attendant issues. The glass ceiling is there not because women lack merit and ability but because they are women.
Arguing for inclusion In a healthy democracy, the judiciary must be a mirror of the whole society. This is not an argument against merit but an argument for inclusion. Then the diverse experiences of such a Bench would flow into the decision-making process. Gender diversity will only enrich the jurisprudence. Claire L’Heureux-Dube of the Supreme Court of Canada was criticised as an ideologue with a feminist agenda for her decisions on “battered woman’s defence”, tax deductions for working mothers, and better spousal support provisions. But she said that it was not bias but equality and humanitarianism that lay at the heart of her views. Hearing the trial of Jean-Paul Akayesu on the International Criminal Tribunal for Rwanda, the then United Nations High Commissioner for Human Rights, Navanethem (Navi) Pillay, held that rape and sexual violence also constituted genocide and that sexual violence was an integral part in carrying out of the destruction of the Tutsi ethnic group. This was the first time that sexual violence was recognised as a war crime.
An increased presence of women will infuse public confidence in the courts and also in the selection process. It is undeniable that there is a kind of old boys’ club. In the West they call the Bench “pale male”. We can think of an equally catchy phrase. As Rajeswari Sunder Rajan says perfectly in A Woman’s Worth in Granta : “(But) there is a well-founded expectation that women litigants would feel less intimidated in the presence of female judges, and that women judges in turn would exhibit greater sensitivity to their grievances. A larger number of women in the judiciary would promote gender equality if only because their proportionate presence in the profession would itself reflect it.”
Prabha Sridevan is a former judge of the Madras High Court.
