- The Indian Constitution guarantees gender equality under its various Articles, yet the main lawmaking body, that is the Judiciary, has a considerably low number of women as against men.
- The main reason for their underrepresentation is the existing stereotypical norms against women, among other things.
- However, despite their minimal role, the female judges established their own precedents by their remarkable observations. The article analyses the contributions made by these female luminaries in the Judiciary.
Empowerment of women is a matter of concern right from the beginning. However, the particular criterion for developing them at par with men is always perplexing. At the most, people, including the activists, strive to bring equality in general terms. Of course, women are left behind even in remote areas where equality doesn't even matter much. So, when compared with these circumstances, voicing concerns over lesser representation of women in the Indian Judiciary would seem to be of little importance. However, least people are aware of the fact that more women in politics and law would lead to a progressive impact on women's empowerment. Their minimal role in the political and legal spheres is likely to cause evasion of key issues centering our country's second gender.
India is among the earliest countries to witness women's entry into politics and yet, it is struggling to give them a decent representation. The 2019 Lok Sabha Elections gave way to 78 women into the Parliament which is recorded as the highest so far. However, this number constitutes only 15% representation of women in the Parliament, which is comparatively less than many other developing countries and to be precise, women's share in the Lok Sabha has seldom risen between 1952 and 2017. However, there has been a drastic improvement in the number of women representatives at the local level due to the 73rd Amendment Act of 1992. The scenario is almost the same in the case of the legal profession too. However, the worst part of this is the presence of very low female judges in the Judiciary.
WOMEN IN THE LEGAL PROFESSION
The first female representative in the Indian Legal System was Cornelia Sorabji, who was introduced to practice as an advocate in the High Court of Allahabad in 1921. The Legal Practitioners' (Women) Act, XXIII of 1923 played an important role in encouraging more participation. It is a true fact that an increase in women's participation in the legal profession could serve as an effective way through which voices against injustice towards women can be raised. However, law is still considered an arena for men. Over the years, there has been a rise in the number of female legal practitioners owing to the importance of their involvement in protecting other women's rights, yet their representation is considerably low. As of 2020, the number of female advocates stood at only 15% of the total advocates enrolled in India. Forget about the Bar and the Bench, women have very inadequate representation even at the ground level. According to the India Justice Report 2019, only 36% of paralegals in India are women and similarly, of lawyers empaneled by the DLSAs, only 18% are women. This often prevents victims from speaking up as they hesitate to share their problems with men.
REPRESENTATION OF WOMEN IN THE BENCH
Women's representation in the Bench is crucial for the upliftment of women in all spheres. Moreover, it is also important to view female judges as mainstream lights rather than generalizing them as mere guiding light for women. They are equally eligible as men to decide on prominent Indian laws, irrespective of whether they deal with the rights of women or not. However, we fail to realise it and dedicate only the family matters to women judges. This stereotype was first broken by Justice Fathima Beevi, who went on to become the first woman judge to enter the Supreme Court in 1989. However, if we look a little closer, it took almost around 40 years for our judiciary to induct a woman to its Top Court.
Though her entry gave a new level of enthusiasm, the percentage of women judges in all the tiers of Indian Courts is woeful. According to a report from the Vidhi Centre for Legal Policy (2018), the lower judiciary has only 27.6% of female judges, and this percentage is sadly the highest among all the Courts in India. The High Court has a fretful percentage of just 10% and even more distressing is the less than 1% representation of women in the Supreme Court. Since our Independence, only 8 women have got the opportunity to serve as Supreme Court Judges. In the High Courts, only the Madras High Court has the highest number (13) of female judges followed by the Punjab and Haryana High Court (11). Unfortunately, six High Courts (Manipur, Tripura, Telangana, Meghalaya, Patna, and Uttarakhand) have no women judges.
Role of these Iron Ladies in Strengthening the Judiciary
Justice Fathima Beevi, being the first woman to mark her presence at the Top Court, made the biggest contribution by giving women the courage to enter this male-dominated arena. Her hallmark quote that says, "If I can, so can you" proves that she is an absolute booster to encourage females to take up law as their career. This encouragement gave us some more female stalwarts in the judiciary. Besides empowering women, these luminaries also helped in adding more strength to the Indian judicial system as a whole. Their contributions are wide and the same cannot be explained in a few words. However, we can get a glimpse of how their leadership potential was, with the help of a few judgements delivered by these dignitaries.
Justice Fathima Beevi
- Scheduled Caste & Weaker Section Welfare Association v. State of Karnataka (1991): In this case, an impugned order of the Karnataka State Government, declaring only a part of an area in Bangalore as "slum area", was challenged on the ground that the slum dwellers were not given the opportunity to be heard. This, they contended, had violated their right under Article 14 and the principle (audi alteram partem) of natural justice. Justice Fathima Beevi, while quashing the said order, observed that every citizen is protected against the exercise of arbitrary authority by the State, and if a power to decide and determine to the prejudice of a person exists, then the duty to act judicially is implicit and the rule of natural justice would operate.
- Rattan Chand Hira Chand v. Askar Nawaz Jung (1991): Justice Fathima Beevi stressed upon the importance of public policy in determining whether a contract is legally valid or not. She opined that every agreement, the object or consideration of which is unlawful, becomes void, and this consideration or object is unlawful when Courts would regard it as opposed to public policy. If anything is done against the public policy, that would be illegal as the same is a principle of judicial interpretation founded on the current needs of the community.
Justice Fathima Beevi also served as the Governor of Tamil Nadu (1997).
Justice Sujatha Manohar
- Vishaka v. State of Rajasthan (1997): The landmark judgement in this case was pronounced by Justice Sujatha Manohar. Twelve guidelines were issued to prevent sexual harassment in workplaces. This case became a breakthrough in protecting the rights of women in India. She observed, "The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to compass all the facets of gender equality including prevention of sexual harassment or abuse."
Justice Sujatha Manohar was also a member of National Human Rights Commission till 2004. Recently, she became the first woman Judge to receive the Ruth Bader Ginsberg Medal of Honour, awarded by the World Law Association and the World Jurist Association.
Justice Ruma Pal
- A. Jayachandra v. Aneel Kaur (2004): In this case, an attempt was made to define the term "cruelty", which has not been explained in the Hindu Marriage Act. While defining the same, it was held that cruelty can be physical as well as mental. "If from the conduct of his spouse, the same is established and/or an inference can be legitimately drawn that the treatment of the spouse is such that it causes an apprehension in the mind of the other spouse, about his or her mental welfare, then this conduct amounts to cruelty," it was observed.
Justice Ruma Pal had delivered many critical judgements in a number of cases. In legal studies too, she has made noteworthy contributions, include the editing of M. P. Jain's Constitutional Law.
Justice Gyan Sudha Misra
- Pyla Mutyalamma @ Satyavathi v. Pyla Suri Demudu (2011): In this case, the right of a deserted second wife to claim maintenance under Section 125 of the Cr. P. C. was analysed. The Court made a detailed analysis on the same and held that the Appellant was entitled to receive maintenance under the said Section. The Court further observed the revisional powers under Section 125. It said that the revisional court does not have the power to re-assess evidence and substitute its own findings.
- Aruna Ramachandra Shanbaug v. Union of India (2011): This case elaborately discussed the concept of "euthanasia" and an individual's right to die. The Court laid down guidelines on "passive euthanasia".
Justice Ranjana Prakash Desai
When she was serving in the High Courts and as a Supreme Court judge, she made valuable contributions in a number of cases, including the EVM case, black money case, etc. She also upheld the death sentence of Kasab, who was involved in the 2008 Mumbai Terrorist Attack.
Justice R. Banumathi
- Mukesh v. State for NCT of Delhi (2017): Also popularly known as the Nirbhaya Case, this case judgement occupies the top place with respect to the punishment of rape accused. Following the brutal rape committed by six men in 2012, the Indian criminal law witnessed several amendments therein. In the instant case, the Court awarded the death sentence to four of the six accused, and sent one accused to reformation home for three years. Another accused had committed suicide in jail. The four accused were hanged in 2020. Justice Banumathi observed, "Persisting notion that the testimony of victim has to be corroborated by other evidence must be removed. To equate a rape victim to an accomplice is to add insult to womanhood…Where the victims are helpless women, children or old persons and the accused displayed depraved mentality, committing crime in a diabolic manner, the accused should be shown no remorse and death penalty should be awarded." Her observations gave a new perspective on the role of courts while dealing with sensitive cases like rape. She made distinctive remarks on different aspects of the case.
Justice Indu Malhotra
- Indian Young Lawyers’ Association v. The State of Kerala (2018): Also known as the Sabarimala Case, it serves as one of the best precedents with respect to gender equality. However, while the majority Bench made observations in favour of women's rights, it was Justice Indu Malhotra, who gave a dissenting view despite being a woman. However, her statements were appreciated by many as "bold and brave".
- Joseph Shine v. Union of India (2018): This is yet another landmark judgement that decriminalized adultery after striking down Section 497 of the Indian Penal Code. Justice Malhotra was a part of the Bench that heard the case. She observed, “Section 497 fails to consider both men and women as equally autonomous individuals in society.”
Justice Indu Malhotra is reportedly the first woman to be directly appointed as a Supreme Court Judge from the Bar. Retd. Chief Justice of India, Mr. S. A. Bobde, exclaimed that Justice Indu Malhotra had been one of the finest judges in India. Justice D. Y. Chandrachud called her an "icon".
Justice B. V. Nagarathna
Justice Nagarathna, who recently got elevated as a Supreme Court judge, has created a lasting impact on the legal system. She advocated for women's rights, children's rights, and also for the upliftment of the marginalised community among others. The legal fraternity is expecting her to become the first woman Chief Justice of India in September 2027. Such is Justice Nagarathna's legacy.
- Master Balachandar Krishnan v State of Karnataka (2020): Quashing the Karnataka amendment that introduced 25% domicile reservation in the National Law School of India University, Bengaluru, Justice Nagarathna commented that it was unfair to expect Karnataka students to remain in and practice in Karnataka, when opportunities are available in other parts of India and even overseas, for higher education as well as professional work.
- F K Santosha v. The Karnataka Power Transmission Corporation Limited (2021): In this case, it was observed, children born out of void and voidable marriages under other personal laws, where there is no provision for conferment of legitimacy, must also have equal protection of law. Justice Nagarathna commented that there may be illegitimate parents, but a child cannot be illegitimate because he/she has no role to play in his/her birth.
The above mentioned judgements are just a few of the voluminous cases heard by these leading ladies. Similarly, selective contributions of very few women judges have been explained above, however, there are many other such great leaders who have strongly established themselves in this male dominated profession.
While we have looked at the notable contributions of women judges in the top Court, it is equally important to know the role of High Court judges in reinforcing the Indian Judiciary. There are several such judges including Justices Leila Seth, Manjula Chellur, Nishita Nirmal, Rohini, Gita Mittal, Hima Kohli, Bela M Trivedi, etc. who have considerably elevated the role of women in our judicial system by proving their robustness in the decision making process.
WHY OUR JUDICIAL SYSTEM HAS FAILED TO ENCOURAGE WOMEN?
The answer to the question as to why our system failed to appreciate women in the legal profession can be explained by quoting Justice Leila Seth's words, that reads, "Nobody wanted me to join the profession cause they thought it was a male preserve, and later on when I started practicing I wouldn't get much work, because people said that I am woman and I would not be able to handle it." It is noteworthy that she was the first woman to top the British Bar in 1958 who also became the first woman Chief Justice of a State High Court in 1991. This pretty much sums up the position of women in law. When a woman, who had defeated more than 550 applicants and secured the top position of the British Bar, had to face such prejudices, there is not much surprise why the Indian Legal System has so few women representatives.
Women are secondary to men and are vulnerable to take up competitive jobs. This stereotype stands as a barrier and leaves no exception. Justice Ruma Pal, in one of her interviews, shared the bitter experiences that she faced in her initial years. "The college principal first said I could not take the exam because I was a woman", she said while recollecting her struggle being the only female law student in the entire college. She was not even permitted to sit in class for this reason. Justice Pal also commented on the lesser representation of women in the litigation field. "The main reason for a smaller proportion of women in litigation is that after law school, there is a huge drop-out rate for women. Some get married while some join a law firm. Women mostly prefer not opting for litigation because it is uncertain. Everyone wants an immediate return and hence they join these law firms," she opined.
An article published on The Breakthrough Story stated that the setback in women’s representation was mainly due to the eligibility criteria for appointment as a district judge. Lawyers must have seven years of continuous legal practice and should be between 35 to 45 years of age. This is a disadvantage as women may be coerced into getting married by this age. Further, the long and tedious work hours in law, combined with the “unavoidable” family responsibilities force them to drop. Thus, they fail to meet the requirements of eligibility to be appointed as a District Judge.
The nation is celebrating the recent appointment of three female judges to the Apex Court. This is highly commendable as our country now places four women judges, in all, at its top judicial position. However, let's look at this issue from another point of view. While we are celebrating this historic appointment, it is also important to note that we have just four women judges out of the total 33 Judges. This stands at just 12%. Though this is a considerable amount compared to our past, this figure is consistently low because women consist of around half of our country's population. Besides, it is also important to acknowledge them as mainstream judges as they are equally well educated and experienced in deciding a wide range of cases.
Attorney General of India, K. K. Venugopal, in his written submission to the Supreme Court, stated that the initiative of increasing the female representation in the Indian courts must begin from the Supreme Court itself. This is true because the Supreme Court is the topmost authority that is responsible for shaping the public policy of the nation. Equal representation of male and female judges would enhance the court's legitimacy which is crucial because legitimacy is necessary for a decision making body to make effective judgements. Therefore, developments must begin from the Top Court that would possibly encourage the reformation of the lower courts too. The current appointment of four judges can be viewed as a first step towards this initiative. If this dynamism experiences a progressive growth, then, as stated by Justice R. F. Nariman, the time for saluting the first woman Chief Justice of India (CJI) won’t be very far off.