Higher judiciary an “old boys’ club”

August 4, 2018, will be marked as a historic day for Indian judiciary. On that day, the Supreme Court (SC) for the first time had three sitting woman judges after Madras High Court Chief Justice Indira Banerjee was appointed a judge of the SC.

Also, for the first time since its inception, the Jammu & Kashmir High Court will get a woman judge, Justice Sindhu Sharma, and a woman chief justice in Justice Gita Mittal. But the percentage of women in higher judiciary still remains dismal.

It took 39 years for the SC, since its establishment in 1950, to get its first woman judge, Justice Fatima Beevi. Only 12% of judges in the SC and the high courts are women. Seven HCs — Uttarakhand, Manipur, Tripura, Meghalaya, Chhattisgarh, Himachal Pradesh and Jharkhand have no woman judge at all.

Even with the recent appointments, only three of the SC’s 22 judges — 14% — are women. This shows the male-dominant power structure and gender discrimination in the institution in whose uprightness everyone in the country swears by.

The classic example of women in judiciary harks back to Greek and Roman mythology. Goddess Themis, one of the wives of Zeus, was the Greek Goddess of Justice and she was considered the embodiment of divine order, law and custom.

Of later origin is Justitia or Lady Justice, the Roman Goddess of Justice. Justitia is most often depicted with a set of scales, typically suspended from her left hand, upon which she measures the strengths of a case’s support and opposition. She is also often seen carrying a double-edged sword in her right hand, symbolising the power of Reason and Justice, which may be wielded either for or against any party.

Modern-day representations of justice in courts around the world is of a lady justice carrying a sword and scales, often blindfolded to symbolise the fair and equal administration of the law, without corruption, avarice, prejudice, or favour.

Unique perspectives

Not all women share identical experiences and attitudes, but their life experiences do in many ways contrast with those of men and therefore they bring with them unique experiences and perspectives. When they address gender-based issues, we may see greater vitality in our evolving jurisprudence.

While no discernible trend in respect of gender justice can be ascertained from the judgements delivered by women judges in the Supreme Court, it cannot be denied that there are some instances where path-breaking concepts in women’s rights have been addressed by benches of which they were a part.

Justice Sujata Manohar was part of the three-judge bench in the landmark case of Vishaka, which dealt with, for the first time, the sensitive and increasingly common problem of sexual harassment at the workplace.

Similarly, Justice Ruma Pal, often considered a tough-as-nails judge, through her judgements in A Jayachandra and Vinita Saxena, elaborated on the concepts of ‘mental cruelty’ in a marriage and ‘cruelty as a ground for divorce’.

Another significant contribution made by her was in the case of RD Upadhyaya, while dealing with the sensitive issue of the welfare of children of women undertrials and women convicts, often forced to live with their mothers in prison.

From all this, one can gather that when faced with a case of, say, rape or cruelty in marriage, etc., women judges are likely to deal with them in the same manner as a fellow brother judge, yet when faced with a hitherto unexplored area of law, especially where gender justice is concerned, they wouldn’t hesitate to take their own considered, somewhat unconventional, views.

Under the present system, the appointment of HC and SC judges is done by a collegium comprising the CJI and two senior-most judges and four judges of the SC respectively.

In the case of appointment of HC judges, a HC collegium comprising the CJ and two senior-most judges of the HC send their recommendation to the SC collegium. The SC collegium then recommends the names for appointment to the President, which is binding on him if the recommendations are reiterated by the collegium. This points out that judges appoint judges who, in almost all cases, happen to be men.

The tenure of a judge plays a vital role in deciding whether a judge will reach collegium as it is based on seniority.

The average tenure of all SC judges (including sitting judges, retired CJIs and retired judges) appointed since 1950 is 5.5 years, whereas that of women judges is 4.23 years (excluding the present three women judges).

In fact, only Justice R Banumathi will reach the collegium and Justice Indu Malhotra and Justice Indira Banerjee will never reach this exclusive male-dominated league due to their short tenures of around three years and four years, respectively. Perhaps, the presence of women judges in the collegium would help ensure that more women judges are appointed and thus the higher judiciary becomes less of an “old boys’ club.”

(The writers are students at the National Law School of India University, Bengaluru)