Justice and gender

NEW DELHI: Indu Malhotra was finally sworn in as a Supreme Court judge just over a month ago. The senior lawyer had stopped her practice after the Supreme Court (SC) collegium comprising Chief Justice of India Dipak Misra unanimously recommended her name for appointment as a judge of the SC in January. However, the recommendation was stuck with the government for months, which led Malhotra to go back to practicing law.

This was the first time a woman lawyer was recommended for direct elevation from the Bar in the 68-year-old history of the SC. Malhotra, 62, has now become the first to make it to the apex court without having served in a high court. The other six were elevated from high courts. (Justice M Fathima Beevi was the first woman SC judge appointed 39 years after the apex court was established in 1950).

 It is very unfortunate that on the one hand they [male judges] give these progressive judgements on issues such as triple talaq, but when it comes to the appointment of women judges, they close ranks.”

 -Priya Hingorani | Supreme Court lawyer

 

Discrimination

Malhotra joined the legal profession in 1983 and, in 2007, became the second woman to be designated a senior lawyer by the SC after the legendary Justice Leila Seth, who was given the honour in 1977. She secured first position in the Advocate-On-Record examination, considered extremely tough for most lawyers, for the SC. However, while instances such as these led to a sense of elation felt by the entire nation, an old bogey forever shadows such success stories — the issue of ‘gender discrimination’ in the appointment of judges to the higher judiciary.

The fact is, since its inception, India’s Supreme Court has had only six women judges. The court has long faced criticism for not bringing more women judges into its fold. Justice R Banumathi is the sole woman among the 25-member strong SC judiciary, which has a sanctioned strength of 31 judges.

According to SC lawyer Priya Hingorani, the issue is not new. Decades back, her parents, Kapila and Nirmal Hingorani, both lawyers themselves, filed a PIL (Public Interest Litigation) on why there were no women judges in the SC. Hitting out at the system, Hingorani said, “The mindset of the judges who appoint the collegium system is such that they don’t believe in appointing more women judges. It is very unfortunate that on the one hand they give these progressive judgements on issues such as triple talaq, but when it comes to the appointment of women judges, they close ranks.”

In 2015, a five-judge-constitution bench headed by Justice JS Khehar invited suggestions to improve the collegium system of appointment of judges by infusing transparency and streamlining eligibility criteria and the Supreme Court Women Lawyers’ Association (SCWLA) made use of the opportunity by putting forth suggestions to improve the collegium system of appointment of judges through greater transparency and streamlining eligibility criteria. The SCWLA said that gender bias was deeply ingrained in the system and while women participation was on the rise in every sector in the country, it was not so in judgeship.

Hingorani stressed, “A mediocre man can become a judge in SC, but not a woman, who has to work much harder to prove herself. The system needs change, transparency and credibility.”

Feminist scholars said that larger representation of women judges would not only bring a different experience to the bench, but also further advance the cause of justice.

Delhi High Court lawyer Warisha Farasat said, “Even in high courts, there are several competent women judges who can be elevated, but the SC has had only one woman judge (at a time), though there’s no such written rule.”

Law graduate Nisha Rathi said that despite 61 per cent of women enrolling in law courses, only a few reached the top. “Women are coming out in droves to practice law, but its shocking that there’s only one woman judge in the SC.”

 

Women judges in Supreme Court

Justice Fathima Beevi (1989-1992). Born in Kerala, Justice Fathima Beevi practiced law for eight years before being appointed judge in the Kerala HC in 1983. She was the first woman appointed as judge in the SC. On retirement, she was appointed governor of Tamil Nadu.

 

Justice Sujatha V Manohar (1994-1999). She was the first woman Chief Justice of the Bombay High Court. After almost 20 years of practice, she was appointed as Chief Justice of SC. She was on the 3-judge bench that dealt with the issue of sexual harassment at workplace and paved the way for Vishaka Guidelines.

 

Justice Ruma Pal (2000-2006). Having started her practice in 1968 in civil, revenue, labour and constitutional matters in the Calcutta High Court, she was appointed judge in 1990. She has delivered many critical judgments in famous cases.

 

Justice Gyan Sudha Misra (2010-2014). She served as Chief Justice of the Jharkhand High Court for almost two years. For her stint at the SC, she was lauded for drawing a distinction between active and passive euthanasia in the case of Aruna Shanbaug, who had been kept on life support following a sexual assault in 1973.

 

Justice Ranjana Prakash Desai (2011-2014). With years of expertise in criminal law, she served as one of the judges who upheld death sentence awarded to Ajmal Kasab, the lone surviving terrorist of the Mumbai attacks of November 2008. She was part of the bench, which held that registration of FIR in cognizable offence was mandatory.

 

Justice R Banumathi (2014-2020). She is currently the only sitting woman judge of the SC. She comprised the bench that passed the death sentence in the Nirbhaya gang rape case. Penning a separate judgment, she said the case came within the category of “rarest of rare”, where the question of any other punishment is “unquestionably foreclosed.”

 

 

High Court figures at a glance

It is the first time in the history of India that women are heading the four major and oldest high courts in New Delhi, Mumbai, Kolkata and Chennai, which is being seen as a silver lining. The feat was accomplished with the appointment of Justice Indira Banerjee at Madras HC a year ago.

The Madras HC has total six women judges and 53 male judges. The Bombay HC has 11 women judges against 61 male judges. The Delhi HC has 9 women judges and 35 male judges. Whereas the ratio of women judges versus male judges in Calcutta HC is 4 to 35.

Eight of 24 HCs do not have any woman judge. The Allahabad HC has 85 judges, the most in any court, yet only seven are women. Among the 632 judges in 24 HCs, only 68 are women, which denotes a mere 10.7 per cent.

According to the All India Survey on Higher Education (2014-15), the number of women enrolling in law courses rose from 2.3 million in 2011 to 3.8 million in 2015.

 

Women hold the fort in four oldest high courts

Justice G Rohini – Delhi High Court (2014) She was appointed judge of Andhra Pradesh HC in 2001 after 21 years as a lawyer. A science graduate from Osmania University, she is one of the longest serving at a single HC.

Justice Manjula Chellur – Bombay High Court (2016) She became the first woman lawyer of Bellary in 1978. In 2014, she became the first woman Chief Justice of Calcutta HC and now serves in the Bombay HC.

Justice Nishita Mhatre – Calcutta High Court (2016) She is the acting Chief Justice of Calcutta High Court since 2016. A microbiology graduate, she was earlier appointed judge at Bombay HC in 2001.

Justice Indira Banerjee – Madras High Court (2017) She was appointed Chief Justice of Madras High Court in 2017. Having studied at Kolkata’s prestigious institutions, she was appointed permanent judge of Calcutta HC in 2002.