“By their mere presence, women judges enhance the legitimacy of the courts, sending a powerful signal that they are accessible to those who seek recourse to justice.”
– Judge Vanessa Ruiz (International Association of Women Judges)
Table of Contents
Introduction
The Indian Courts had persistently, owing to the deeply entrenched and layered patriarchal set up, reinforced the masculine values and endocentric morality, while ignoring the legal and constitutional mandates for disbursement of justice, which is its primary duty and concern. In and out of court rooms and court rulings the patriarchy may be seen. The inequality is not just the highest for women’s representation the level, but also during the daily procedures of the courts Women’s and ancillary questions and concerns decisions. The men often dominated court is unaware of the women’s problems and is not hostile apprehension. In line with the material presented in front of him or her, judge sees an individual subject through his/her subjective prism.
The courtrooms therefore cannot be considered unbiased and without partiality. The court room itself has a person and functions with its falls like a bureaucratic machine. In particular if the question is of women’s rights or if there is litigation in question, the courts are often used to judge “subjective moral traditions and patriarchal perspective.” The rights of women are perceived from the lens of their link to their daughters, mothers, wives, sisters and their role and place in the culture and society of the people.
Thereby, reading the laws does not constitute a ratio or judgement of cases. Instead, the parties’ sociological lens and jurisprudential understanding of the problems and vulnerabilities of gender discrimination has been truly attempted to understand the proceeding and issues of deliberation and contestation. This study interpreted women’s right to position and vulnerability by the debate and not only by whether the ruling calls for ‘female emancipation.’
In the Indian Constitution, Article 15(1) stipulates that no one can be discriminated against on the basis of sex alone. But, if the sex is coupled by additional variables, such as “social norms” or the like, it does not come within the remit of discrimination based on gender alone. Thus, the meaning and scope of a Constitutional Fragment are relatively restricted to words. Whereas the interpretation of Article 15(3) is a particular provision for women and children, ‘in the courts the direction of a justice mentality in respect of the place of women in the public sphere is quite obvious.’
Importance of Women in Judiciary
Achieving equality for female judges is not necessary for women as a matter of right, but also it is also essential for achieving of more just rule of law. Female judges help to empower and strengthen judiciary and also help in gaining public’s trust. The inclusion of more women judges in the Indian judiciary denotes being more transparent, inclusive, diverse and representative. Female judges amplify the legitimacy of courts, deliberating a powerful signal of being open and accessible.
In the last 70 years, however, there has been no genuine endeavor to offer women appropriate representation either in the high courts or at the Supreme Court. In India, women comprise 50% of the overall population and a significant number of female judges are eligible for promotion in the Bar and the judiciary however, despite this, the number of women judges remains limited.
One can recognize quite clearly that India was fundamentally a male dominated culture and did not allow women to take a part in many aspects of their lives, including in the court. The proposal to reserve women in parliament and state legislatures for 33 percent is not approved until now.
The moment is ripe to propose the names of people to be raised as judges and represent dignified women lawyers and district judges more highly. The Patriarchal mentalities must be rectified and approved. Justice cannot be done to women until they are empowered. It is time for all those who consider the selection of judges to the High Court and to the Supreme Court to understand that women in the courts must be adequately represented. In reality, for women, for instance the higher judiciary, without diluting merit should also have a horizontal reservation.
Out of 1.079 (42 percent) judges and seven of 34 (20 percent) judges, there are around 426 vacancies in the Supreme Court. It does, however, provide a chance to compensate for the lack of representation in higher justice for women. In this situation, it is not possible to achieve the cause of the first lady, CJI. However, it is possible and necessary to try to provide the women in the high court’s and at the Supreme Court with enough and appropriate counsel. This will be a step towards eliminating prejudice between men and women, leading ultimately to better social and gender harmony in the courts. If the court is seen as a stronghold of firm elitism, exclusivity and privilege, ignoring changes in society and the requirements of the most vulnerable people it will not trust. Indeed, if the judges themselves take discriminatory action, citizens will find it difficult to recognize the court as the protector of law and human rights. That is why it is vital for the credibility of the judiciary to have women. It should be our objective – not just because it is right for women and because it is right that a more just rule of law be achieved, in terms of representation at all levels of the court and of the political judicial councils. Women judges enhance the justice system and contribute to the trust of the people. Female judges make considerably more contributions to justice than just enhancing their looks; they also make substantial contributions to the quality of decision-making and thus to the quality of justice itself. Women magistrates worldwide have obtained the requisite credentials, achieved results and otherwise satisfied legal selection requirements. Female judges bring these experiences to justice and bring them to a broader and more empathic point of view – one that incorporates both the judicial foundation and knowledge of the implications for the persons involved.
Possible Causes for Inadequate Representation of Women in Indian Judiciary
The fact that district judges have a minimum of 7 years’ experience as an advocate or a supporter is an important element in the low percentages of women. While Article 233 of the Constitution mandates no less than seven years’ practice, in instances like Sushma Suri v Government of the National Capital Territory of Delhi in 1999 and Deepak Aggarwal v Keshav Kaushik 2013, the Supreme Court took that as seven years of ongoing practice. The social responsibility of marriage and motherhood, which doesn’t enable women to have 7 years’ continuous practice, makes inherent damage obvious as women confront numerous social and family demands.
In terms of formal qualifications and examination results, it is believed that there are comparatively more women in the lower judiciary than higher appointments whose recruitment process is opaque and relies on subjective factors such as professional viability, favored evaluations, professional performance and networks (Schultz and Shaw, 2013). Women representing just 15 percent of practitioners severely decrease the pool for direct advocacy at higher judicial levels. The harsh and sexist atmosphere at the highest court placed women litigators as professionals in severe difficulty. Sexism is not seen in many cases by female judges because of the pedestal that has been maintained in the courts. Often they are asked by their colleague judges to retract their concerns. The Supreme Court’s retired judge indicates that its judgments have been further reviewed and adopted only if supported by a bigger bench . Further, the absence of supporting amenities, such as bathrooms, maternity leave and lack of supporting infrastructure, is also contributing to a high attrition rate among attorneys.
Redressal Measures and Recommendations
In December 2020, K.K. Venugopal, Attorney General of India, proposed to the Apex Court how the under-repress of female judges might be dealt with and thus gender awareness of Court judgments (Rajagopal, 2020). He pointed out that some topics need to be personalized by the judges. When dealing with situations of sexual abuse, you should be in the victims’ shoes. He proposes that the courts retain significant information on women’s distribution in various tribunals, courts and the number of female senior advocates.
This topic is already being tackled by organizations such as the International Association of Women Judges. In order to create ‘gender offices’ which include gender perspectives into the functioning of the courts, the IAWJ also arrange judicial training in the interpretation of the law free of gender equality in order to ensure non-discrimination and equal access to justice (International Association of Women Judges, 2019). The first step is to compile fundamental data on sex on all levels of the court. A study from the Policy Department for Citizens’ Rights and Constitutional Affairs for the European Union stresses the necessity of setting up a systemic gender monitoring framework and collecting all surveillance data in one location on a regular basis. A systematic strategy to data gathering is needed to lead to a more detailed analysis.
The Sustainable Development Agenda 2030 (SDG 5 and SDG 16 in particular) addresses the worldwide duty for equality between women and men in public bodies, such as the judiciary. The Agenda for Sustainable Development 2030. The CS should order the data collecting in the lower judiciary and courts to identify the number of female judges and the number of senior officials appointed by all high courts in each year. At least 50 percent of women in all leadership roles must be achieved, and the judgment must be strengthened by the participation of women who put up factors which had never been taken into consideration in their absence, and so the scope of the debate is expanded to avoid misrepresented or unfair conclusions from being reached.
By explaining how legislation and regulations might be founded on gender stereotypes or how they could affect women and men differently, a gender perspective improves the equity of judgement which ultimately helps both men and women.
Conclusion
Different social institutions cover the deficiency of the flexibility of gender representation. History has witnessed revolutions that otherwise appeared utopian to change these institutions. As we progress towards a more inclusive and equal society. The development, polarization and segmentation appear to be well entrenched. Therefore, progress works as concealment only. The judiciary’s relevance is that to make significant but incremental changes, a widespread disposition of optimism is necessary. Enough care. The necessity for such modifications has been recognized, the grass root changes and execution of those reforms are needed to those who seek access to justice.
The decisions chosen are typical in their character, in order to demonstrate those women’s views or presence have given the legal principle/interpretation either a new dimension or widened acceptability. A fresh narrative on the gender question was offered in the judicial statements. Where a judge has written the decision it presumably leads to the acceptance of the protectionist attitude or sameness on the subject of gender equality through contact between the judges on the bench and a woman judge. In addition to being the top dispute resolution authority, the Supreme Court of India plays a key role in determining the nation’s public policies too. Whenever the Supreme Court has been placed before it with an issue of national importance, it has dealt correctly with the constraints of its scope. It has expanded its scope of power separation in a number of cases. The Supreme Court, however, cannot sit and divide its hair into dilemmas in situations where legislation does not exist or when the current law is not sufficient. In the event of a policy conflict, it must solve the problem, as well as ensure that it is dealt with by the proper government body. The higher judiciary has to be more varied in gender since it is not only a dispute resolution agency, but an institution that is essential to the country’s administration. The diversity of the Supreme Court judges reinforces the credibility of the Court. Legitimacy is an important need of any decision-making body, and it may thus be claimed that the Supreme Court of India does indeed need a varied judicial system, which provides a substantial and not only a symbolic representation for women.
This article is authored by Akanksha Pandey, student at Law College Dehradun, Uttaranchal University.
