GENDER BIAS IN INDIAN JUDICIARY

According to the Department of Justice website, 25 high courts had no more than 78 of 685 female judges, or 12 per cent of the total, as of August 1, 2020.

After 72 years of independence, India's higher courts portray a bleak image of women's participation on its benches. In India, public debate focuses on case

backlogs, insufficient judges, and the prevalence of caste or religion-based judicial selections rather than establishing an inclusive judiciary with equal female representation. Constitutional courts were formerly inaccessible to women for various social and educational reasons, but, with equal access to education, the number of women pursuing legal careers is increasing. Following this, the purpose of this post is to delve into this perpetual diversity issue, analyze the pervasive gender bias element that conventionally exists in India's higher courts.

With the presence of gender prejudice in courts, there exists an ardent need to establish an inclusive judiciary. The more the judiciary resembles the population's demographics, the easier it will be to provide credibility to precedents. Women make up just 12% of the overall strength of India's higher judiciary. For a diverse country like India, it is necessary to develop a diversified judiciary.

Male-female judicial parity in courts: Addressing realities

There have been only seven female judges in the Supreme Court of India to date. J. Indu Malhotra's direct move from bar to bench is seen as breaking a significant glass ceiling by many in the legal fraternity. The appointment signifies the position of women at the bar and the acceptance of the talent of women. It is argued that her appointment has cleared the decks for more woman advocates to get directly nominated as judges. Around 27.6% of judges in the lower judiciary are female, which is higher than the average in the constitutional courts.

There must be some reasons as to why women are being represented at a dwindling rate. The students enrolled in legal stream is 3.3 lakh, out of which 2.2 lakh are males. In a worthwhile profession like law, women do not hold a position of equivalent power comparable to their male counterparts. The former High Court of Delhi Chief Justice, AP Shah, described how a woman lawyer he had recommended for a judgeship was rejected on the grounds that she was 'rude'.

"There is alive and kicking patriarchy that prevents women from breaking the glass ceiling" - Sr. Adv. Indira Jaising

Striving for a diverse judicial system

Due to the surmounting significance of the judicial system in governance and policymaking, advocating for a diverse judiciary is more important than ever. A critical critique of the Parliament said that, as the primary legislative instrument, has failed to achieve the Constitution's greater aim of 'controlled revolution,' prompting the judiciary to broaden its role beyond adjudication. The lack of other representational institutions in India is a frequent explanation for the Indian judiciary's changing role. The transition of the higher judiciary from an adjudicating organ to a welfare policy-promoting institution has underscored the importance of being a representative and varied organ.

The expansion of Article 21's scope and the emergence of public interest litigation (hereafter referred to as "PIL") are two additional major factors that may be linked to the judiciary's evolving function. The government's failure to enforce its own constitutional safeguards prompted the judiciary to intervene by recognizing and enforcing of unenumerated rights in many cases, one of which is Vishaka v. State of Rajasthan, The government's inability to implement its own constitutional safeguards forced the judiciary to step in and recognize and enforce previously unrecognized rights.

Gender stereotypes of women as soft, extra-sensitive, and vulnerable have not

shown to be reliable markers of women's contribution to the legal system. Female judges who decide cases involving women are more likely to be compassionate and provide better courtroom experiences for these victims. Their presence on the bench will guarantee that women (whether victims or practitioners) are not exposed to blatantly sexist attitudes or gender prejudices. This has the potential to actively reduce cases of gender stereotyping. The 'Neuberger Experiment' from Law in Action argues that using fundamental heuristics based on female life experience or the ethic of caring, it is impossible to ‘read off' a judge's gender.

This idea is based on the work of Carol Gilligan and her supporters, who think that the feminine voice is more concerned with social ties and the hierarchy of rights. Women's contributions to the court are mainly viewed through the prism of gender as it is perceived by society.

The Indian Constitution does not rely on any formal criterion (policy of affirmative action) for maintaining gender diversity in selecting judges, but there exist informal criteria in the Supreme Court's appointment practices. The idea of having an inclusive judiciary is inbuilt in the Constitution itself, and it is time to reflect that ideology in all the constitutional offices. For the purposes of this article, the chosen decisions are used to further advocate for improved inclusivity:

A. Justice Sujata Manohar

J. R.M. Sahai and J. S.V. Manohar were members of the bench in Government of Andhra Pradesh v. P B Vijay Kumar, where they had to consider whether prioritising women during direct recruitment would violate the Constitution. The court did not agree with the argument that article 16 may be used to limit women's job opportunities under article 15(3). It was declared illegal because it violated articles 14, 16(2), and 16(4) of the Constitution and significantly impacted all male unemployed people. The Supreme Court ruled that workplace sexual harassment is a violation of women's human rights. The presence of a female judge, in this case, helped provide a more comprehensive view of the problem and the development of a practical solution. After the Delhi gang rape in December 2012, it took the government seven years to establish legislation against sexual harassment.

B. Justice Ruma Pal

Two highly educated medical practitioners, who were at odds about pursuing divorce on the grounds of mental cruelty, called into doubt the integrity of marriage as an institution (A Jayachandra v. Aneel Kaur). Physical violence is not required to constitute cruelty, according to the court, because collecting concrete proof in cases of mental cruelty is not only difficult but impossible. J. Ruma Pal, has shaped the current interpretation of the term "cruelty" via her decisions in the cases of A. Jayachandra and Vinita Saxena. A Belfast court has broadened the concept of 'cruelty' in divorce cases to include the psychological element of cruelty (A case involving a man who was found guilty of assaulting his ex-wife and her mother triggered the modification).

C. Justice Gyan Sudha Mishra

Justices Harjit Singh Bedi and Gyan Sudha Misra delivered a brave judgment in Pyla Mutyalamma @ Satyavathi v. Pyla Suri Demudu. The court found that the Andhra Pradesh High Court wrongly exercised its jurisdiction while entertaining the revision petition against an order granting maintenance to the appellant-wife under section 125 Criminal Procedure Code. Women were often denied their crucial needs of maintenance, even as men flouted the norms of monogamy.

D. Justice R. Bhanumati

In Mukesh v. State for NCT of Delhi, J. Bhanumati said that gender sensitization should be made necessary throughout a child's formative years. Rape is more than a physical crime; it is an act of power that degrades a woman's entire personality, as seen in the case of Gurmit Singh[1]. To compare a rape victim to an accomplice, she claims, is to degrade women.

E. Justice Indu Malhotra

The approach that Justice Indu Malhotra took to the Supreme Court is unique. She was the court's first senior female advocate to be immediately appointed as a judge. On legal issues, the minority position was hailed by the legal community, and it was also seen as courageous for defying the popular majority view. Section 497 IPC, according to Justice Indu, puts a woman in a disadvantaged situation by preventing her from prosecuting her unfaithful spouse. The right to live in dignity includes the right not to be publicly chastised or punished by the state unless absolutely required.

To establish what behavior warrants state intervention through criminal penalty, the state must first examine whether a civil remedy will suffice. When a civil remedy for wrongful conduct is enough, the state's criminal penalty may not be warranted.

The trajectory ahead

The Supreme Court of India is not only the state's leading court for resolving disputes, but it also plays a crucial role in establishing the country's public policy. Discrimination on the basis of gender is a societal blight that must be eradicated at all costs. A nation's court must stand forward and interpret the laws in such a way that the concept of equality is upheld. Constitutional measures must be made to empower women in our society and reform any current laws that prevent women from making choices and making use of all life's opportunities. Governments must implement programmes, plans, finances, and welfare policies that are effective.

The relevance of gender as a criterion for appointment has not been a prevalent paradigm in the upper courts thus far. A diverse court, with substantive rather than symbolic representation for women, is a current requirement for the Supreme Court. The problem at hand evokes a wide range of issues, providing a solid foundation for future investigation. Understanding the function of judges and the reality that diversity in values reflects a divergence in judgement might help explain why a diverse judiciary is necessary. It is high time to ensure that judges are not discriminated against on the basis of their gender.

[1] The State of Punjab vs Gurmit Singh & Ors (1996 AIR 1393), The prosecutrix was a young girl of less than 16 years old who was in the 10th grade at the time. She was driving to her maternal uncle's house, and after around 100 km, a car piloted by a Sikh youngster approached her from behind. The doctor concluded that both of the defendants were physically capable of engaging in sexual activity. She provided cops a sample that included the prosecutrix's salwar, five slides of vaginal smears, and one sealed vial of pubic hair. The accused was acquitted in a hasty manner by the trial court, which has been challenged.