Public Affairs: Trying to crack the steel ceiling

According to newspaper reports, the collegium of the Supreme Court of India has recommended the name of four persons for elevation as judges of the Supreme Court of India, two of whom are directly from the bar. Unsurprisingly no woman figures in these recommendations. In fact, since 2013, over seven judges have been appointed to the Supreme Court, and none of these have been women. The time has now come to take a hard look at facts with regard to women and the judiciary. The history of the Supreme Court of India reveals that since the inception of the court, only five women have been made judges of the highest court in the land, including the two women who are sitting judges today namely Justice Gyan Sudha Mishra and Justice Ranjana Desai. Till date, this country has had a woman Prime Minister, a woman President, and several women chief ministers, but never have we had a woman as Chief Justice of India.

On an all-India level, the website of the law ministry shows that in all our high courts, the number of women judges is 53, out of a total number of 614, namely a meagre 5.84 per cent. Several high courts do not have a single woman judge on the bench. Kerala, which gave our country its first woman high court judge, namely Anna Chandy, and first Supreme Court judge, namely Justice Fatima Beevi, Meghalaya and Patna, are the only courts that have women chief justices.

In the aftermath of the Delhi rape case, Parliament passed the Criminal law Amendment Act 2013, amending the Indian Penal Code, the Criminal Procedure Code and the Evidence Act to implement severe punishments for those committing crimes against women. In fact, Section 26(a)(iii) of the CrPc mandates that “any offence under Sec 376 and 376-A to 376-D of the IPC shall be tried, so far as is practicable by a court presided over by a woman”. In early 2013, the then Chief Justice of India Altamas Kabir directed fast tracking of all sexual offence cases against women. Nevertheless, the unpalatable truth is that today there are over 3,760 posts of trial judges and 292 posts of high court judges lying vacant.

In January 2013, the woman Chief Justice of Kerala Manjula Chellur directed the formation of single judge and a division bench, presided over by women to exclusively hear cases against women and children but, unfortunately, this excellent direction could not be implemented because of the lack of women judges in Kerala. On the positive side, the presence of a woman judge, namely Justice Gyan Sussha Mishra was keenly felt when a bench of which she was a part cancelled the order of the Kerala high court which had acquitted 34 persons in the Suryanelli rape case involving the alleged gangrape of a 16-year-old girl.

There are a large number of women practising law at various levels of our judiciary. Yet their work does not find recognition, nor do they get elevated as senior advocates, and consequently judges. The glass, or indeed the steel ceiling, in the legal system is rarely if ever discussed. Matters get sensationalised when reports of alleged sexual harassment of young legal interns by judges holding high office are picked up by the media. These cases, if true, and proved, need to be condemned in the strongest possible terms and the perpetrators brought to book. However, notwithstanding the importance of ensuring the prevention of such unpardonable incidents, it would be worthwhile for the media to also focus upon broader and larger dimensions of the issue of the absence of women at all levels of the judiciary.

Ironically all the top rankers in Indian law colleges over the last 25 years have been women. They begin their practice of law, and somewhere, somehow, they seem to disappear. It is obvious that to preserve the health of the legal system and to ensure proper justice reaches all the women of our country, the reason for these missing women lawyers has to be carefully studied. For all the well-known reasons, namely lack of mentoring, inability to network, societal prejudices, women find it next to impossible to reach the top echelons of the legal profession.

Despite the talent and competence of hundreds of young women lawyers, their work is often not recognised, simply because they are women and are unable to break through the glass ceiling. The high courts and the Supreme Court, for example, do not provide data on how many successful women lawyers have applied for empanelment as senior advocates, and why, if at all, their number is so low. The discretion to appoint senior advocates is the exclusive discretion of the senior judges, and the reasons why they might have rejected women lawyers are not just opaque but, quite frankly, unknown. It may be definitively stated however, that our high courts and the Supreme Court do not provide a nurturing or enabling environment for women lawyers, and this is an unacceptable situation. Needless to say, appointment of a sufficient number of women judges can only follow upon the recognition of the work of women lawyers.

Despite the clear discrimination faced by women lawyers as is customary in our society, the iconography of law is appropriate to the point of being painfully satirical. Justice is always depicted by the statue of Justitia, the Roman goddess of justice with a set of scales suspended from her left hand by which she weighs the merits of a case, and the double edged sword symbolising reason and justice, held in the other. It is even said that the architecture of the Supreme Court of India was also designed to project the image of the scales of justice with the central wing of the building corresponding to the central beam of the scales. Yet, so few women actually receive the benefit of this justice!

In 1996, an NGO named Sakshi conducted a survey among 109 judges of diverse backgrounds, which I think is relevant even today. According to this survey, 74 per cent believed that even if violently assaulted, women should stay within the marriage; 51 per cent believed that always women are to blamed; 49 per cent believed that a husband slapping his wife does not amount as cruelty. In fact, 48 per cent claimed that there were times when a husband was justified in slapping his wife, and although 92 per cent believed that domestic violence is an under reported crime, 90 per cent would not opt for legal redress in case of violence involving women of their own family. The attitudes and statistics speak for themselves and it may be safely assumed that nothing has changed from 1996 to now. Clearly more women on our court benches are the need of the hour.

The author is a political activist. The views expressed in this column are her own.