Field of Judiciary and Gender as a Socio-Cultural Term

Introduction

Gender is a socio-cultural term which refers to different role and behavior assigned to different sex in society. Gender is a man-made concept while sex is a natural or biological characteristic of human beings. Gender inequality basically refers to discrimination on the basis of sex. Gender inequality prevails in all sectors of life like health, education, economics, and politics. Gender inequality gives rise to gender disparity. Gender disparity means inequality in terms of gender. We can easily find gender disparity in different aspects. The root cause of this is patriarchy system. Women have been not given share in property as it is believed that men are the ones who carry the generation forward. Women are not provided wages equal to men even if the women is also doing the same work with equal efficiency. India is ranked among the lowest in the gender equality index. Nowadays it is often said that women are getting more chances than before. But if we look into the field of judiciary, it is not free of the gross imbalance in the number of men and women in judiciary.

Less than one-third of judges in the lower judiciary in India are female, according to a February 2018 analysis by the New Delhi-based Vidhi Center For Legal Policy. Only 27.6% of lower judiciary judges in the country are women. The report stated that Andaman and Nicobar Islands and Dadra and Nagar Haveli had no female judges. Bihar, with 11.5% of all its lower courts judges female, had the lowest proportion of women judges in the lower judiciary of all states analyzed, followed by Jharkhand (13.9%), Gujarat (15.1%) and Jammu and Kashmir (18.6%).The highest proportion of women judges in the lower judiciary was in Meghalaya (73.8%), followed by Goa (65.9%) and Sikkim (64.7%) which constitute 60% of the total. The Supreme Court till now has only seen six women judges in its six decades of existence. Out of 25 judges currently, it has only one woman judge. In 24 high courts all over the country just 10% are women judges. In eight high courts there is not even a single woman judge.

Reasons

Since 19th century in India law has been made a male dominant field. Women were denied to practice law till the time Allahabad high court allowed Miss Cornelia Sorabji in 1921 to practice law. After this women started practicing law and it was after 1970s that women legal practitioners increased. Even women face a lot of difficulty in practicing in court. Marital status of women plays a vital role in their participation in the field of law. Women practicing law are mostly unmarried because the women in the legal field face a lot of family pressure due to which at last women opt out of the profession after marriage. Even some women are not allowed to choose law as their profession as by the time they find themselves settled professionally they get too old for marriage. People consider women less competent than men and find them lacking the leadership potential due to which women encounter challenges at their workplace. These perceptions create a impact on the career progress graph of women and this slow growth in turn discourages women to take up law as their career.

Men are considered more efficient in the field of law as they are more like to engage in dominant or aggressive behavior which are considered to be behaviors that facilitate the professional advancements. But women doesn’t need such traits to be successful in the field of law instead they should exercise their natural instincts, which would be more efficient thing to do. Women have limited time to achieve their goals. Hence, they have to cut on their few goals and be specific about the more important goals of their life. Harassment and bullying at the workplace is also one of the most important reasons which contribute to the women leaving profession of law. In the world of litigation there have been many instances where women were harassed verbally, not just by the opposing counsel, but also by the ‘respectable’ judge of the court. Hence, it gives rise to a strong sense of gender disparity in the legal profession.

Despite these reasons, the researchers note that women’s representation in all of judiciary, is in a sorry state. For instance, the Supreme Court has only ever had six women judges. And India’s 24 High Courts have only a little over 10% of women judges.

“The District Courts and the courts below them comprise the ‘lower’ or ‘subordinate’ judiciary. These courts lie under the administrative control of High Courts. Each judicial district in India has one District Court, below which lie civil and criminal courts of original jurisdiction,” the study notes, and finds that 71% judges in the lower judiciary across India are male.

Abysmally low number of women in lower judiciary. The southern states of Andhra Pradesh and Telangana had 37% and 44% women judges respectively. Meanwhile Kerala had 67% and Karnataka, 70% judges who were men. Tamil Nadu had 607 and 357 male and female judges respectively, not including 12 judges whose information was unavailable.

The smaller states, Goa, Meghalaya and Sikkim, fared relatively well with 66% (29), 74% (31) and 65% (11) judges who were women – 103 in total. The report suggests that breaking down data into these numbers can help zero in on factors which affect gender composition and may help policy makers.

Researchers also note that unlike the higher judiciary, some states have provided a quota for women in the lower judiciary, such as Andhra Pradesh, Assam, Bihar, Chhattisgarh, Jharkhand, Karnataka, Odisha, Rajasthan, Tamil Nadu, Telangana. The quota ranges between 30% and 35% and women are appointed to these positions through direct recruitment.

Emphasizing the need for more rigorous data collection to address the issue, the study ends on a positive note. It points out some recent developments which seem to indicate that the tide may be turning, slowly. “In 2017, for the first time, all four High Courts of Delhi, Calcutta, Bombay and Madras were headed by women Chief Justices,” it says.

Many leaders and members of judiciary have also been voicing the need for equitable gender representation in the judiciary. For instance, President Ram Nath Kovind recently acknowledged this gender imbalance and in his speech on National Law Day, and urged political leaders to allocate quotas for women in the judiciary.

Note: Percentages have been rounded off to the nearest decimal point.)

The gender of 1% (153) judges was unknown, and Arunachal Pradesh and Lakshadweep were excluded from the study due to lack of availability of data. Other factors include the disproportionately low number of women lawyers and the challenges they face on entering litigation, the report said. Only 10% of advocates are estimated to be women, and when it comes to senior advocates in the Supreme Court, the percentage drops to 2.9%.

Though there is no reservation for women in the higher judiciary, a number of States have provided quotas for women in the lower judiciary. States like Andhra Pradesh, Assam, Bihar, Chhattisgarh, Jharkhand, Karnataka, Odisha, Rajasthan, Tamil Nadu, Telangana and Uttarakhand provide for reservation which ranges between 30-35% of the total seats, for which recruitment is done through direct appointment.

However, the report said the proportion of women judges in States with reservation varies widely. While Telangana had over 40% representation of women judges, States like Bihar and Jharkhand fall short of the national average. The lack of gender diversity is not limited to the lower judiciary. The Supreme Court has only seen six women judges in its six decades of existence, and currently has one woman judge out of 25 judges.

In the 24 High Courts across the country, just over 10% judges are women, with not even a single woman judge in eight High Court. Is there any Gender discrimination in judiciary against women? As far as recruitment of judges in lower judiciary is concerned, there does not seem tobe gender discrimination as both female and male candidates are given equal opportunity to appear in competitive examination. As far as higher judiciary is concerned, yes, there has been sort of discrimination because collegiums have recommended only few female names. What constitutional / legal provisions have to do with this problem? Article 14 (right to equality) and Article 15(3) (the power of the State to make special provisions for women and children) of the Constitution.

India is a signatory to Conventions on Elimination of Discrimination Against Women (CEDAW), 1979, which envisaged removal of obstacles of women’s public participation in all spheres of public and private lives.” Should there be reservation of women in higher judiciary? Is it justified? No. Firstly, as we discussed the facts above, there is less number of women practicing law in India. There is nothing in the law of the land to stop women from entering judiciary and become senior lawyers and judges. The profession has to do more with the interest of women than appeasement. Secondly, it appears that there is a glass ceiling in higher judiciary {collegium system}, but that needs regulatory and administrative reforms. The answer is not in reservation but in changing regulatory mechanism in judiciary, reforms in appointments in higher judiciary, incentivising women practicing lawyers etc.

“And the jury of men were silenced by her thunder, the judges were scrambling for words and the people in the Court were in awe. The woman advocate had silenced each person in the Court by sheer display of courage to speak up against the patriarchy in an alleged open forum.

Suggestions & Solution to Tackle the Issue

The solutions and suggestions for an issue this complex and deeply entrenched in the very fabric of the society of the ‘civilised’ mankind cannot be a simple one. We must try to address the issue at different levels.

The immediate solution to address the issue of gender disparity in legal profession is that there should be family-oriented policies, favouring the women lawyers in the country. Eliminating sex discrimination requires the immediate adoption of policies that enable workers of both sexes to better combine their wok and personal lives.[56] Such policies should include providing paternal leaves, flexible work schedules and child care, which are of primary importance to the women lawyers who have sacrificed their personal lives in order to advance with their profession.[57]

In the longer run, there is a change needed in the current attitudes of the people at the workplace. The society and the workers as a whole need to be educated and sensitised. The notions for gender roles needs to be abandoned, and the society must view the interests and talent of the female lawyers to be at par with their male counterparts.

The role of employers in this process should be to recognize the extent to which gender bias permeates their operational structures, develop an understanding of how the environment created by these structures influences the behaviour of individuals, and change their operational structures to eliminate that bias.[58]

A primary objective should be to ensure that women are given fair performance evaluations and are promoted according to their worth, not their sex. To do this, employers must recognize that employees are often judged according to stereotypes associated with groups to which they belong rather than by their individual performance.[59]

All decision makers and employees must learn to respect the work performed by women. They must learn that being too personal or familiar, flirting, and referring to appearance and family plans indicate to womenthat they and their work are not being taken seriously.[60] Basically, employers must recognize that any behaviour or comments that bring a worker’s gender to the fore are inappropriate and may cause the employee to question her competence.[61]

Some law firms have come up with the idea of organising and sponsoring ‘diversity training’ programs designed to teach employees to understand and value the difference between men and women.[62]

Once employers commit themselves to instituting these programs, they should also acknowledge their responsibility for educating future employees. In the legal profession, this means that attorneys and their firms must work to eliminate discrimination in law schools.[63] They must make law students aware of the consequences of engaging in overt and covert discrimination.[64]

With regard to Indian context at the Bar and the Judiciary, there needs to be some specific structural changes which need to be made in order to address the issue of gender disparity. The women involved in the legal profession must come together and form an association which can look into the issues of gender disparity at workplace, without letting any women feel alone in their fight against a structural and societal evil. It is also important that such groups and associations are led by able leaders so as to avoid any kind of caste or class discrimination in cases of gender inequality faced by the women in the legal profession.

The justice dispensing mechanisms can set up a standing committee or an able administrative board with adequate staff and resources to address the issue of gender inequality. There must be a proper complaint structure that ensures the confidentiality of the complainant, keeping in view the society that we live in. The Courts and the Bars must associate themselves with groups and individuals beyond their domains to address the concerns of the female members of the system and to sensitise the male members of the Judiciary and the Bar.

The solutions and the suggestions seem to be quite simple and straight-forward because the real challenge does not lie in any system or any structure as such. It is the mindset of the people in the legal profession, in specific, and any profession, for that matter which is the genuine cause of concern amongst the women folks. Hence, there needs to be a holistic approach to address this root of the gender disparity.