Putting Lady Justitia Back In The Judiciary

In a first for the Kerala High Court, there are now four women judges on its roster. Whether this has happened due to circumstances or by design, women at the Bar can now look towards the next Chief Justice of India to appoint more women judges.  

A website recently reported that for the first time there were now four women sitting judges in the Kerala High Court. According to the report , there were already three women judges in that High Court — Justice P.V. Asha, Justice Anu Sivaraman and Justice Mary Joseph. Justice V Shircy was elevated from the lower judiciary to the High Court this week.

“I doubt that it was a conscious decision,” says Sanjay Hegda, senior advocate who practices at the Supreme Court. “But, like all professions, there has been an increasing number of women who have stayed the course. Sometimes, for reasons of marriage and childbirth, some women take leave from the profession and often find it difficult to come back.”

“The appointment of women judges to kerala high court is part of the gradual evolution of the legal profession in India where more and more women have continued to participate full time in the demands of the workspace and as a consequence, they are reaping the rewards of their hard work and persistence. This is not by design to promote gender diversity but it should be,” adds Hegde.

The representation of women in the judiciary has been very low and a cause for concern amongst the women lawyers. Last year, during the National Judicial Appointments Commission (NJAC) case, an association of women lawyers in the Supreme Court, had raised the issue with the judiciary.

When the Supreme Court Women Lawyers Association (SCWLA) had argued that there should be greater representation of women on the Bench, Justice Jagdish Singh Khehar (in line to be the next CJI, when Justice TS Thakur retires in January 2017), had actually welcomed the point. 

Justice Khehar had reportedly said that “We are always looking for a woman judge”, possibly indicating that the collegium of judges (which makes appointments to the higher judiciary) had considered it during their various deliberations.

According to sources in the know, the present Chief Justice of India has also raised it during the collegium’s appointment exercise with a view to include diversity in the appointments.

The SCWLA had also pointed out that there were “62 women judges compared to the 611 male judges” in the different High Courts at the time. When asked about the gender ratio amongst lawyers, the SCWLA had responded that it would be an unfair criteria to work out the number of judges.

The draft Memorandum of Procedure (of the collegium) to appoint judges has gone back and forth between the government and the judiciary and a final draft is expected this month. Once a final version is formalised, the details of the collegium’s functioning and its criteria for selecting and appointing judges will become clearer. Going by the current pace, the reforms may be in place during the current Chief Justice’s tenure but it it not clear whether these would be in time for him to implement them before he retires.

The ball is likely to be in Justice Khehar’s court when he takes over early next year. Since the Supreme Court makes a few elevations from amongst senior counsel directly to its own ranks once in a while, they could even set an example and directly appoint a few women judges to the apex court from amongst lawyers along with promotions of women judges from the various High Courts.

Earlier, the Supreme Court bench had appointed a committee of two senior lawyers — Arvind Datar and Pinky Anand (additional solicitor general)— to compile suggestions for the MoP. Several suggestion had been made to appoint more women judges including a recommendation for a one-third reservation for women. Currently, there is no reservation criteria in the higher judiciary. The Supreme Court has just one woman judge at present — Justice R. Banumathi. 

“Our association had made around 10-11 suggestions regarding appointing more women judges to the high judiciary.” says Prerna Kumari, general secretary, SCWLA.

According to Kumari, who is also a senior advocate practicing at the Supreme Court, the Supreme Court judges have appeared open to appointing more women judges, both during the discussion of the MoP and earlier during the NJAC case.

“On one hand, it will add diversity to the Bench. On the other, I personally feel that appointing women judges makes both litigants and lawyers more comfortable especially when they deal with cases that relate to women, such as in divorce cases, domestic violence cases and even in Protection of Children from Sexual Offences (POCSO) Act,” she adds.

Kumar explains that a woman judge presiding over a sexual assault trial, may often help to put women complainants at ease.

“I have also observed additional sessions judge Kamini Lau at the Karkardooma district court and she has pronounced some very strong judgments in POCSO cases. Similar views were also echoed by the Supreme Court in a SCWLA PIL, where the apex court bench distinguished crimes against children up to 10 years of age. A bench led by Justice Deepak Mishra said that the government should consider legislation for harsher punishments in cases of sexual offences against children of that age group,” says Kumari.

The Bar Council of India, was more circumspect about women’s representation in the higher judiciary. According to the report of the Datar-Anand committee, “BCI also submitted that while representation from all sections of society and adequate representation of women are required to be considered, the eligibility criteria, merits, honesty and integrity cannot be and should not be sacrificed to accommodate anybody.”

The halls of justice are undoubtedly male-dominated whether it be at the Bar or on the Bench.There have also been complaints of women facing sexual harassment and sexism in the legal professions, but only a handful have been reported. A more inclusive judiciary could change things and there is not enough data right now to conclude whether appointing more women judges will or will not change the situation for women lawyers or litigants.