Vol 1. Issue 9 March 2018 Gender Watch Monthly, Vol. 1 Issue 9 March 2018 Gender Watch 1 Vol 1. Issue 9 March 2018 TABLE OF CONTENTS COVER STORY: MISSING GENDER 3-10 DIVERSITY IN THE INDIAN JUDICIARY EQUALITY 11 DEMOCRATIC PARTICIPATION 12 HEALTH 13 LEGAL DEVELOPMENTS 14 CONTACT 15 Gender Watch 2 Vol 1. Issue 9 March 2018 COVER STORY Missing Gender Diversity in the Indian Judiciary While women participation is on the rise in almost all sectors including the IT, defence, banking and finance in India, the same is not with courts, lower or higher. The Indian judiciary still seems to be a male bastion with women constituting only 28% of the current strength of 17,160 judges across all subordinate courts, high courts and the Supreme Court. Is it because India lacks meritorious female judges? If not, what are the reasons? Introduction As India attained freedom, the framers of the Constitution sought to unite the vast country with its great diversity of languages and creeds within a common bond of constitutional justice based on the great ideals of liberty, equality, fraternity and justice.1 Following this, Article 50 of the Constitution contained in Part IV, directs that it is the duty of the State to separate the judiciary from the executive in the public services of the State. So while the purpose of legislative is to supervise and principally control the policy and the expenditure of the executive branch, the judiciary is responsible for ensuring their legality and thus protects citizens against unlawful trespass on their constitutional or other rights Given the fact that the very same Constitution demands gender justice by granting every citizen right to equality and dignity, it is unfortunate that there is such gross under-representation in the judiciary and this insufficiency of diversity is accompanied with lack of concern to plug that gap, 1 http://www.thehansindia.com/posts/index/Hans/2016-08-08/Strive-for-social-justice-Chief-Justice- of-India/247396 Gender Watch 3 Vol 1. Issue 9 March 2018 despite recommendations2. In fact, there have been no systematic efforts to regularly compile and publish even basic data on the proportion of women judges in different levels of Indian courts, until the Ministry of Law and Justice released information about gender diversity in the Supreme Court and the High Courts in 2016 The data highlighted the gender disparity in the Indian judiciary and makes the case for a more representative Indian judiciary. Recently, while the nation rejoiced with the five- judge verdict that said Triple Talaq3 was unconstitutional and un-Islamic ensuring Muslim women’s right, equality; what went unnoticed was the fact that the five judges who represented five different faiths but not a single one was a woman- leave alone a Muslim woman.. In the same week, nine judges in a separate judgement had declared that Privacy is a fundamental right. Not one of the nine was a woman. So, at a time when the This article therefore, speaks of the fact that while in theory, the law is supposed to be devoid of any bias towards gender, for many women, life in India's courts is a constant reminder that the judiciary is patriarchal. With the help of the government statistics, the following data represents the lack of representation of women in the higher judiciary in the past, and to highlight the present scenario as well (from low to high level of court. The article also tries to highlight the concern regarding equity between genders in appointments and promotions, and the potential factors behind the gender imbalance in the judiciary and concludes by highlighting the need to reform to accommodate concerns over gender discrimination. 2 The under-representation of women in the judiciary came to light last in 2015 when Justice J.S. Khehar, while looking at ways to improve the collegium system, wondered aloud: “The ratio of female judges to male judges must be in the same ratio.”Read More at http://www.thehindu.com/opinion/op-ed/judiciary-an-old-boys-club/article8410065.ece . It was earlier recommended in the 2011 report submitted by the National Commission for Scheduled Castes (NCSC) available at http://ncsc.nic.in/files/Reservation%20in%20Judiciary.pdf 3 Read the whole judgment at http://www.livelaw.in/supreme-court-said-triple-talaq-judgment-read- judgment/ Gender Watch 4 Vol 1. Issue 9 March 2018 Source: https://factly.in/diversity-indian-judiciary/ Women as Supreme Court Judges The Supreme Court of India is the highest judicial forum and final court of appeal under the Constitution of India, the highest constitutional court, with the power of constitutional review. Ever since India declared itself a republic on 26 January 1950, 45 people have served as the Chief Justice of India (starting from CJI H J Kania appointed on the 26th of January 1950 by then President Dr. Rajendra Prasad to the present CJI Dipak Mishra appointed in 2017 by President Ram Nath Kovind). It is surprising that; only six women out of the total 229 judges have been elevated to the post of the Judge of the Supreme Court of India in 67 years of the Court’s existence, and currently there is only one woman judge out of 25. Even though, the overall percentage of women practising law starting improving from 3.12% (1960) to 5.08% till 2005,a brief look at the statistics show, only 12 women have been designated senior counsels by the Supreme Court so far while only 10-15% of the 17 lakh advocates enrolled in the bar councils are women. This implies that in a country where our Constitution mandates equality for all, and prohibits, inter alia, discrimination on the basis of gender which implies that for almost half of a 1.25 billion population only six women, were found suitable, over 67 years to be their Chief Justice so far. The fact that there is only one woman judge in the SC—Justice R Banumathi ( she was one of the members of the judicial bench that confirmed death sentence for the accused in the 2012 “Nirbhaya” gang rape case, even after the accused men appealed to re-consider their death sentences) and no woman judge has been appointed in the apex court in the last three and a half years since August 2014 is ironic. Gender Watch 5 Vol 1. Issue 9 March 2018 In 1989, Justice M Fatima Beevi was the first woman to be appointed as a judge in the Supreme Court of India. Six years after Justice Fatima Beevi, Justice Sujata V Manohar was appointed to the Supreme Court in 1994. Justice Sujata was the first woman Chief Justice of the Bombay High Court. She was on the 3-member bench that was instrumental in passing the landmark judgement in Vishaka & others Vs the State of Rajasthan & others in 19974. Post 2014, there have been several crucial cases that came up in regard to women rights (Hadiya case, criminalising marital rape, right to privacy etc) without even a single women judge in the panel , highlight the need for greater judicial diversity; in particular, the need to appoint more women judges. In February 2017, when five judges were appointed to the Supreme Court in February, 2017 not one was a woman, even though there were two women chief justices, G. Rohini in Delhi (who has since retired) and Manjula Chellur in Bombay. This decision comes at a time when there is a vacancy of 5 more judges required to fulfil the sanctioned strength of 315. However, the current decision of appointing senior advocate Indu Malhotra the first woman lawyer to be directly appointed as a judge of the apex court is a welcoming step. She will be India’s seventh Supreme Court women judge.6 “The question is not whether Justice Banumathi should have been on either of the benches, the problem is far more deeply ingrained. It is the fact that there is just one woman judge and that this does not seem to matter to anyone.”- says Justice Prabha Sridevan, a former judge of the Madras high court. Source: https://www.thequint.com/voices/opinion/dont-need-quota-but-ensure-fair-number-of- women-in-collegium Is The Situation In High Courts Any Different? In 1959, Anna Chandy became the first woman to be appointed as a high court judge in Kerala, India. Since then women have occupied the post of a high court judge only 86 times. In proportion to 611 male judges in the High Court’s there are only 62 women judges, as of 2016, which is roughly 9.2%. Presently India’s 24 High Courts have only a little over 10% of women judges. While the 4 The Vishaka guidelines paved way for the Sexual Harassment of Women at Workplace Act, 2013. 5 The Supreme Court has a sanctioned strength of 31 judges; it currently only 25. 6 https://thewire.in/gender/70th-year-independence-indias-supreme-court-get-seventh-woman-judge Gender Watch 6 Vol 1. Issue 9 March 2018 Sikkim and Delhi High Court can claim to have the highest number of woman judges with 12 followed by Kerala, Punjab & Haryana with 10 each, the High Courts of Chhattisgarh, Uttrakhand, Jharkhand, Jammu & Kashmir, Himachal Pradesh, Manipur, and Tripura are yet to appoint a woman judge in their history. Source: https://www.thequint.com/voices/women/how-many-women-judges-in-supreme-court-and- high-court However having women in the leadership position will pave the way for greater representation of women in these courts. For instance, the Bombay High Court, which is headed by chief justice Manjula Chellur, has the highest number of women judges in the country which is 11 out of 73 judges are women followed by Delhi High Court headed by acting chief justice Gita Mittal which has 10 women judges out of a total strength of 38.