As the triple talaq case is being heard by a five-judge bench of the Supreme Court, several questions are being raised on various aspects of the case. One of them: Why are there no women judges hearing a case that, primarily, affects women?
The straightforward and obvious answer to the question is that of the 28 sitting judges in the Supreme Court right now, there are 27 men and just one woman: Justice R Banumathi. In fact, since 1950, there have been only six women judges in the Supreme Court.
While India has seen numerous landmark judgements on women’s rights cases over the years by the Supreme Court - Vishakha guidelines, entry into the Sabarimala temple and offering permanent commission to women for the Indian Navy, to name a few - the fact is that there are few women in the higher judiciary.
Although four of our High Courts are currently headed by women, a report by DailyO shows that as of April 12, 2016, across the Delhi, Calcutta, Madras, Bombay and Punjab & Haryana High Courts, out of the 262 judges, just 38 are women, which chalks up to a mere 14.5%.
So why is there such a paucity of women judges in India? And does this affect the way judgments are given in the country?
Sudha Ramalingam, a Chennai-based advocate, says, “Sociocultural influences play an important role here. Women are not given equal opportunities and men dominate in most fields. We are under-represented everywhere, not just in the Indian judiciary. This is a common thing in India.”
Mumbai-based women’s rights lawyer, Flavia Agnes, says that women usually gather familial responsibilities, which makes it difficult for them to put in the sort of rigour that litigation requires. “Part of the blame needs to be taken by women as well. They don’t want to take up the responsibility and end up following their husbands wherever they go,” she says.
Mumbai-based lawyer and former Additional Solicitor General of India, Indira Jaising says, “There is a problem with manner of appointment here. It’s an old boys' network, not an old girls' network. Women have lack of access, or aren’t part of networks that comprise lawyers, practicing or retired judges. They are either consciously excluded from this company, or they themselves avoid going to such gatherings, where they might meet influential people.”
Does lack of women affect judiciary?
While the Supreme Court, with a majority of all-male panels, has given several progressive judgments in recent times, it has also fallen into patriarchal trappings on several occasions.
The infamous Mathura rape case is one such that’s a blot on the judicial system. A bench comprising Justice Jaswant Singh, Justice Kailasam and Justice Koshal ruled that, “Because she (the complainant) was used to sex, she might have incited the cops to have sex with her”.
In another controversial case, the Supreme Court rejected criminalising marital rape. A bench of Justice AR Dave and Justice R Banumathi, stated that “You are espousing a personal cause and not a public cause. This is an individual case.” Marital rape is the only exception to India’s law against rape.
In 2013, the SC also rolled back the decriminalisation of Section 377 by the Delhi High Court.
But the same court, in 2014, in the landmark NALSA vs Union of India judgment, gave transgender persons the right to self identify their gender - and ordered the central and state governments to provide protections to transgender persons.
In the case of banning women’s entry into Kerala’s Sabarimala temple, a panel comprising Justice Dipak Misra, Justice V Gopala Gowda and Justice Kurian Joseph said that the temple is a public religious place and “gender discrimination in such matters is untenable. You cannot create corrosion or erosion in constitutional values.”
Another landmark judgement by the Supreme Court was in the Sakshi Vs. Union of India case, where a panel of judges comprising Chief Justice Rajendra Babu and Justice GP Mathur, laid down a set of guidelines to follow while dealing with instances of sexual abuse or rape of a child. These directions include providing a set of questions for examination purposes to the presiding court officer, and protecting the child from seeing the offender during proceedings.
Similarly, Supreme Court rulings against bars on inter caste-marriages, placing live-in relationships under the Domestic Violence Act of 2005, or the mandatory grant of alimony in the Shah Bano case, and many more have been passed by panels of male judges.
‘Women are not born sensitive’
While the problem of patriarchy is real in Indian judiciary, overcoming it is not as simple as having more women on board.
“Men and women should both be sensitive to a case, not judge it based on their gender. I don’t think just because the judge is a woman, she is born biologically sensitive. It is not necessary that a case concerning women will not be handled sensitively by a male judge, neither is it a given that a woman judge will deal with it well,” says Flavia Agnes.
“There is a definite problem of patriarchal values that prevents women from rising in this field. However, I don’t think that it is necessary for a panel of judges to be created specifically with the involvement of a woman. Justice must be delivered irrespective of a gender bias”, says Sudha.
Male judges are capable of making smart decisions as well, she adds. “Just look at the Vishakha guidelines, they were formed by a panel of two male judges and one female judge. This is a prime example,” Sudha says.
But while the gender of the judge is not of consequence to the judgment, having more women judges itself should be a goal, experts say.
Indira Jaising explains, “Every institution in a democracy needs equal representation. Whether it is gender, caste, or religion, people feel a sense of belonging and ownership if they are equally represented. That’s why we have individuals from SC and ST take up prominent roles as well. That’s why we need more women judges”.
While the break of the glass ceiling is slow for women in higher judiciary, there is definite progress. Today, the country’s four major high courts are headed by women: The Madras High Court is headed by Chief Justice Indira Banerjee, Bombay High Court by Justice Manjula Chellur, Calcutta High Court by acting Chief Justice VM Tahilramani and the Delhi High Court by Justice G Rohini.
As Flavia says, “There are definite changes being made. It is slow progress, but we are moving there. Take the case of the Bombay and Delhi High Court now, more and more women judges are coming up.”