When the bar has a male tilt: Gender imbalance in the judiciary
The Indian judiciary has a gender imbalance. Few women are Supreme Court and high court judges or senior advocates. But is this reflected in our judicial verdicts?india Updated: Oct 23, 2016 19:01 IST
In November last year, a legal news portal reported on an attempt made by the Supreme Court Women’s Lawyers Association to bring to the attention of the constitution bench the prevalent gender imbalance in the Indian judiciary. While putting the point across to the Bench, the women lawyers said that “while women’s participation is on the rise in every sector, it was not the same in judgeship and therefore it was high time meritorious women advocates too, are considered on a par with males” for the same.
The gender imbalance on the bench, however, is worrying not just because of what it means for the women practitioners of law, but given the nature of the role of the judiciary, its possible impact on society as a whole. “In the recent past we have seen some regressive judgments from the Supreme Court and yes, I think that is because there are not enough women judges on the Bench to give a different perspective to the case,” says senior advocate Indira Jaising. “There are also not enough woman senior lawyers who could present the case from a feminist perspective. But ultimately it is not the sex of the judge that matters to the outcome of a case, but the sensitivity to women’s issues.”
Earlier this month, the Supreme Court ruled that if a wife forced her husband to stay away from his family it was an act of “cruelty” and a ground for divorce. The apex court held no son will like to be separated from his dependent parents and it was the norm for a woman to be with her husband’s family after marriage and become an integral part of it. “This particular judgment has less to do with the gender imbalance in our judiciary and more to do with the personal prejudices of the judge and the deep-rooted prejudices of Indian society,” says Diya Kapur, who practices at the Delhi High Court. There have been instances of male judges giving progressive and gender sensitive verdicts in cases relating to family issues, domestic violence and sexual abuse. “Most judges look at the world through their own prism,” says Kapur. While advocate Vrinda Grover agrees that women judges will not automatically make the dispensation more gender just, and “it is the perspective of the judge” that matters, she does agree that “there are some cases in which the gendered experience of a woman help her to make a judgment”. She adds: “In Indian society women leave their parents’ home and are expected to immediately fit into an alien family. It is a brutal custom that forms part of a woman’s gendered experience. To my mind therefore, no gender sensitive judge would have said that asking a man to stay away from his family in a nuclear set-up is an act of cruelty and ground for divorce.” Given the low presence of women in senior roles in Indian judiciary, however – only one out of 25 current Supreme Court judges is a woman – what could have been if the case had gone to a woman judge, is mere speculation.
A TOUGH CLIMB
“At the entry level, in law schools and the profession, the ratio of men and women is about 50-50, with women even outnumbering men in some areas,” says Kapur. “However, as one moves towards the top the number of women starts to drop for various reasons.” The competition and discrimination are both more intense as one starts to climb the ladder. “When one is young, male seniors are often patronising,” says Grover. “One gets a lot of unsolicited advice. It is, however, difficult to ascertain whether that is because of age or gender. But when it comes to senior positions, there is a male hold. And they tend to appoint more men.” Male lawyers are not insensible of the divide. “There is definitely a gender gap in senior judicial positions and one of the reasons for that is that the collegium system that is in use to appoint judges is opaque. What we need is a clear guideline on what ought to be the representation on the bench,” says Delhi-based advocate Aman Hingorani. “What we need is a clear guideline on what ought to be the representation on the bench.”
Not just at the level of judges, even among senior advocates, women comprise only a handful, say advocates like Kamini Jaiswal. “You should be invited to be designated a senior. But today the norm is that you have to apply. Then there is a system of voting and recommendation. One is expected to lobby. It is easier for men to do it because they share a camaraderie with the male seniors,” says Jaiswal. Even getting a brief is more challenging for a woman senior. “Senior advocates do not directly take clients. They are briefed by a briefing counsel. But few briefing counsel (including female briefing counsel) will go to a senior woman advocate with a brief,” says Kapur. It is a “boy’s club”, and women practitioners say they have to battle with gender insensitivity on a daily basis. “When I was on maternity leave, I had to rush to court just a month after my daughter was born, because the judge did not think it was valid reason to adjourn the case. Later of course, he was deeply apologetic about it,” remembers Kapur.
Many women lawyers feel that the social expectations from a woman to take care of her family also result in many women dropping out. “In terms of arguing a matter in a court hall, when an opportunity is provided, I think it is very easy for a competent women lawyer to make a mark,” says Liz Mathew, who practices at the Supreme Court. “However, it is much more difficult for women to develop a strong and credible practice. A common litigant is usually more comfortable entrusting his case to a male lawyer who is perceived to be stronger, more aggressive and street smart. There is always a doubt whether a lady advocate will be able to devote enough time and effort to the case as she has domestic responsibilities.”
Discrimination is both overt and subtle. “It comes out in language, including body language, such as male opponents slouching in their chair and smirking while I am arguing, as a put down to a woman. I have had male lawyers say in open court ‘I am amused by your argument’ , something they do not say to their male colleagues,” says senior advocate Indira Jaising. “I have had senior lawyers refer to me as ‘that woman’ in court while they refer to each other as ‘my learned friend’,” she says. There are also instances of sexual harassment. “Male colleagues would rub past me in an inappropriate manner, write stupid things and even trail my car,” says Grover. That was in the eighties. But even now, Hingorani feels, the system against sexual harassment in courts need to be strengthened further. If a woman lawyer manages to brave all that and still advance in her career, “she is said to be either aggressive, hysterical or having used other means,” says Jaiswal.
There have been some positive changes. Old timers recall a time when women lawyers were mostly relegated to divorce and family law. “Today a woman lawyer is not restricted to any specific kind of case,” says Mathew. Most lawyers also say that clients today choose a lawyer based more on competence than gender. “Increasingly corporates have been engaging women lawyers as they are more organised, systematic and dedicated,” she says. There are women lawyers engaging in criminal and human rights issues.
“Yes there is a gender imbalance. But for someone like me who has been in the profession for 40 years, it also seems like we have come a long way. I remember a time when the Delhi High Court didn’t have a single women judge and the appointment of Leila Seth, as the first woman judge was a significant move,” says senior advocate and former additional solicitor general Raju Ramachandran. “Also while talking of number of women judges and senior advocates, one has to remember that not all female lawyers, and not all male lawyers, wish to be judges or senior advocates. For someone who has made a mark at the bar, continuing as a lawyer might seem more challenging than being a judge. And often both male and female lawyers do not wish to apply to be a senior, because they don’t want to lose the direct touch with their clients and do not feel comfortable or confident about being briefed by their juniors,” he says, adding, “the courts definitely need to be more proactive in encouraging more women to apply for the designation as a senior advocate, but at the same time it should not become mere tokenism.”
There have been efforts for gender sensitisation of judges. “The Bhopal Judicial Academy which has training courses for Judges has specific modules for gender sensitisation of judges,” says Mathew, “but the mere presence of women judges will naturally evolve a more gender-sensitive justice delivery system, from the use of gender neutral language, avoiding sexist remarks and not having double standards when adjudging a gendered issue”. In a society like India, with a traditional preference for the male child, the Supreme Court judgment on separating a son from his dependent parents and the norm for a wife to become a part of the husband’s family may be interpreted by some to mean that it is only the right of the son, and not the daughter, to take care of his aged parents. It may thus negate years of state effort to encourage couples to value and educate the girl child, for she can be as much support to her parents in old age, as a son. And what about those who only have daughters?
Source: All numerical data regarding number of judges and Chief Justices, present and former, of the Supreme Court and High Courts have been take from the court websites