Gender Gap and Sensitisation in Judiciary

Recently, the Attorney General (AG) K K Venugopal, in his written submission to the Supreme Court (SC), has emphasised the need for greater gender sensitisation among members of the judiciary.

He also highlighted that the figure of female judges has been consistently low across the Higher Judiciary.

Background:

The SC had asked AG and others to recommend ways to improve gender sensitivity towards victims while laying down bail conditions for sex crime offenders.

The Bench had sought view on a plea about courts imposing bail conditions for sex crime offenders which end up further harassing, objectifying their victims.

The Madhya Pradesh (MP) High Court (HC) asked a man (accused in a case of attempting to outrage the modesty of a woman) to visit the home of the alleged victim and request her to tie a rakhi.

Data on Gender Gap in Judiciary:

The SC only has 2 women judges, as against the 34 seats reserved for women judges and there has never been a female Chief Justice of India (CJI).

There are only 80 women judges out of the total sanctioned strength of 1,113 judges in the SC and the HCs.

Out of these 80 women judges, there are only two in the SC, and the other 78 are in various HCs, comprising only 7.2% of the total number of judges.

Of the 26 courts whose data was accessed, including the SC, the Punjab and Haryana HCs has the maximum strength of women judges (11 out of 85 judges) in the country, followed by the Madras HC (9 out of 75 judges). Both Delhi and Bombay HCs have 8 women judges.

The HCs of Manipur, Meghalaya, Patna, Tripura, Telangana, and Uttarakhand, do not have any women in the sitting judges.

Currently, no data is centrally maintained on the number of women in tribunals or lower courts.

In the senior designation of lawyers, there are only 17 women senior counsel designates in the SC as opposed to 403 men.

The Delhi HC has 8 women and 229 men designated. Similarly, in the Bombay HC, there are 6 women and 157 men designated.

Importance of Women in Judiciary:

The 2030 Agenda for Sustainable Development, and Sustainable Development Goals (SDG 5 and SDG 16 in particular), address the global responsibility of having gender equality and women’s representation in public institutions such as the judiciary.

Achieving equality for women judges is important not only because it is a right for women, but also because it is right for the achievement of a more just rule of law. Women judges strengthen the judiciary and help to gain the public’s trust.

The entry of women judges is a positive step in the direction of judiciaries being perceived as being more transparent, inclusive, and representative of the people whose lives they affect.

Women judges enhance the legitimacy of courts, sending a powerful signal that they are open and accessible to those who seek recourse to justice.

Women judges bring those lived experiences to their judicial actions, experiences that tend toward a more comprehensive and empathetic perspective.

Adjudication is enhanced by the presence of women who bring to the fore considerations that would not have been taken into account in their absence and the scope of the discussion is hence enlarged, possibly preventing ill-considered or improper decisions.

By elucidating how laws and rulings can be based on gender stereotypes, or how they might have a different impact on women and men, a gender perspective enhances the fairness of adjudication, which ultimately benefits both men and women.

Suggestions:

Courts should declare that such remarks (MP HC issue) are unacceptable which can potentially cause harm to the victim and to society at large.

Judicial orders should conform to certain judicial standards and necessary steps have to be taken to ensure that this does not happen in the future.

The SC must direct the collection of data to determine the number of women judges in the lower judiciary and tribunals and also to determine the year-wise number of senior designates by all HCs.

Greater representation of women should be ensured at all levels of the judiciary, including the SC and this initiative must come from the SC itself, considering that the power of appointment rests almost exclusively with the SC Collegium.

The judges of the SC are appointed by the President. The CJI is appointed by the President after consultation with such judges of the SC and HCs as (s)he deems necessary.

The other judges are appointed by the President after consultation with the CJI and such other judges of the SC and the HCs as (s)he deems necessary. The consultation with the CJI is obligatory in the case of appointment of a judge other than CJI.

The goal must be to achieve at least 50% representation of women in all leadership positions and there should be a mandatory training of all lawyers on gender sensitisation.

Judges, who might belong to the “old school” and are maybe “patriarchal” in outlook, should be sensitised to deal with cases of sexual violence so that they do not pass orders objectifying women in such cases.

Way Forward:

The wide prevalence of orders like the one from the MPHC and other similar instances makes it clear that there is a need for urgent intervention from the Courts.

Improving the representation of women in the judiciary is of crucial importance and have to go a long way towards a more balanced and empathetic approach in cases involving sexual violence.

Changing the long-established demographics of a court can make the institution more amenable to consider itself in a new light, and potentially lead to further modernisation and reform. As a court’s composition becomes more diverse, its customary practices become less entrenched; consequently, the old methods, often based on unstated codes of behavior, or simply inertia, are no longer adequate.