Recent appointments of women judges to the Judiciary in India is being hailed as a final cracking down of the glass ceiling that held back meritorious women from top positions. Taking a cue from Bentham’s differentiation of law as ‘it is’ and ‘as it ought to be’, these appointments may not be strong enough to ensure substantive justice to women. Substantive justice is a purposeful interruption of laws through liberal and progressive thinking of judges to bring a real change rather than delivering the bits and pieces of procedural justice. The truth is that women judges even in the recent list pathetically remain only one third and one seventh section of appointed judges in the Supreme Court and High Courts respectively. So what is the celebration about? Women are systematically kept out of decisive positions even after 75 years of independence. Justice Ruth Bader Ginsburg who had been one of those very few women to have ever served on USA’s Supreme Court was asked, ‘when will there be enough women on the Supreme Court?’ She replied, ‘when all nine judges of the Supreme Court would be females’. Her reply carries many answers to an obstinate patriarchal legal frame that seeps deep even in professionally qualified men chosen to deliver justice but end up creating massive hurdles to substantive justice which keeps women systematically out of top decisive positions everywhere. The boardroom remains a male offspring.
In 1972 girls in schools and colleges were celebrating the coming of the first woman IPS Kiran Bedi in police. Seeing her, even patriarchal parents started promoting their girls in academic and sports activities which were erstwhile considered strictly masculine. Yet within the police they continued to believe that women were unnecessarily gate crashing despite being unfit for this job. While men could get away with their follies and depravities, women were always tested in fire as there was always a full fledged constant search in departments to find at least some fault against a woman officer that could pull her down from appointments to the positions of Director Generals (DGPs) or Commissioners of states. So far only two women in two states (Tamil Nadu and Uttarakhand) have been able to reach this top post in Police. Meritorious women in police are ending their career not as mainstream DGPs of states but in sabbatical training schools, Research and Development (BPR&D) or Jails. The story of a laudable women IAS is no different as they find themselves deprived from key postings as Home Secretary, Cabinet Secretary or within the state as a Chief Secretary.
What prevents women from reaching to the decisive top positions in India even though they are almost close or sometimes ahead of men in schools and colleges? Recently, Education Minister shared in the Lok Sabha that the percentage of women in Science, Technology, Engineering and Mathematics (STEM) at tertiary level in India is higher (42.72%) compared to developed nations like the US(33.99), UK(38.10), Germany (27.14), Canada (31.43) and France(31.8). Going by these statistics we should have had more women in India as engineers, doctors, and even in non-science competitive branches such as law. A data of 2014-15 suggests that women constituted 51 percent of the students joining medical colleges occupying 23,522 seats in 2014-15 compared to 22,934 men and the topper of NEET-2018 has been a woman. During this period medical colleges produced around 4500 more female doctors than males but where have these female doctors gone missing from the world of practice? Only 17 percent of all allopathic doctors and six percent of those in rural areas are women even though there is greater demand for women doctors for their relatively more respectful, soft, and caring attitude. A 2017-18 study from Harvard University observed that elderly hospitalized patients reported better care and fewer deaths when they were attended by female doctors. The percentage of women in engineering is relatively better than in medicine at 29.7 % and India has more female engineers than even USA at 19.7% yet a majority of nearly 46% of them just crowd around one field of Computer Science. The branches of electrical, mechanical and civil show pathetically rock bottom percentage.
A study of Law education in India comes as a forewarning to the judiciary. It was recently found that serious gender disparities existed in all the 29 law schools which presented their data to the National Institutional Ranking Framework (NIRF). All National Law Universities (NLUs) except the one at Bhopal demonstrated a very low percentage of less than 40% women students in their Bachelor of Law programme. This includes the prestigious NLU Delhi, Nalsar Hyderabad, NLSIU Bangalore, and NUJS Kolkata. Shockingly, BHU Varanasi has the lowest (19%) enrolment of women in the LLB course. In contrast, the USA has 52.39% of women in ABA-approved law schools but when it comes to translating their numbers to judges the story is similar. Women faced significant opposition in the USA from top judges whenever they demanded access to legal education or enrolment to the state bar. The Wisconsin Supreme Court denied Lavinia Goodell admission to the state bar in 1875 saying, “Nature has tempered woman as little for the juridical conflicts of the courtroom, as for the physical conflicts of the battlefield. Womanhood is moulded for gentler and better things.” In the famous Case of Myra Bradwell v. Illinois 1873, the judge denied Myra Bradwell entry to the state bar on grounds that the state law demands that her contracts would need her husband’s consent thereby preventing adequate representation of her clients in the courtroom. A section of this judgement that reads as follows may shock our girls in law profession today, “The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.” This more or less reads like a sermon of a religious priest pretending to speak on behalf of God. In England also, the Inns of Court kept women out until the passing of the Sex Disqualification (Removal) Act in 1919.
Women in Indian judiciary have also struggled to make their place. In 1916 Regina Guha passed her Bachelor of Law from the University of Calcutta and applied for practicing law at the Calcutta High Court. Even though the Legal Practitioner Act allowed anyone with a Bachelor of Law degree, eligible to apply, she was denied enrolment to the bar by invoking a fading law of Sex Disqualification Act. The sense of insecurity was so strong that these judges considered to be a voice of justice were so shaken by her demand that they met as a Special Bench just to find an appropriate logic to deny her enrolment. In their decision, they noted, “It was perfectly true that both, according to the etymological sense and the context of the Indian Legal Practitioners Act, the word ‘person’ made a woman eligible for enrolment as a legal practitioner. ….but that the thing had never been done and they were not prepared to make an innovation.” (Proceedings of the Govt. of the United Provinces in the Judicial Civil Department, Sep 1922). This verdict was made a precedent by ‘My Lord’s Group’ to deny enrolment to another legally qualified Sudhansu Bala Hazra from Orissa seeking permission to practice in the Patna High Court in 1921. The judges blatantly admitted that even though ‘females’ are not prohibited by law as the Sex Disqualification Act was revoked that year yet it is their discretion to approve or deny this right to practice. A turning point came when Cornelia Sorabji’s application for enrolment to the Allahabad High Court was accepted and she became the first Indian woman to practice at a High Court. A champion of women’s movement at the bar was Dr. Hari Singh Gaur a Barrister who moved an amendment to a resolution adopted by the Central Legislative Assembly of India on 1st February 1922 saying, “Government be further pleased to remove the sex bar held to disqualify women from enrolment as legal practitioners in the courts of this country.” The Home Member Sir William Vincent circumvoluted his demand without denying it by saying that the Government of India would elicit opinions from the local governments, High Courts, Oudh Bar Association, the general public, and professional bodies. The battle continued for many more decades when the judges at the bar opposed women on grounds that “it would be premature to allow them so long as the prevailing conditions in the society did not change.” In 1923 the Government of India passed a law to remove any disability which might be attributed to women and this law was enforced across all Courts in India. This opened doors for some brilliant women legal professionals to register at bar such as Shyam Kumari Nehru, Leena Clarke and Begum Menakhi Amina Farrukhi in 1928, 1931 and 1933 respectively. However, this did not change the ground position governed by men at the bar and so till the mid-nineties there were only 3.12% or 4,265 registered women legal professionals as compared to 1,36,635 men. By 2005 with an increasing awareness of women towards legal education the number of women registered as legal professionals substantially increased to 12% yet their total participation remained much lower.
Judges with a patriarchal frame can hardly be expected to deliver justice and this frame is sustained for a longer period if the judiciary remains male-dominated with a mere cosmetic representation of women. Mathura Bai’s case of 1972 in which a 14-year-old tribal woman was raped in custody by two policemen Ganesh and Tukaram, the Supreme Court Justices Jaswant Singh, Kailasam, and Koshal ruled what could put anyone to shame, “Because she was used to sex, she might have incited the cops (they were drunk on duty) to have intercourse with her.” In another 1993 case in Karnataka v. Krishnappa where a 49-year-old raped an 8-year-old girl but the High Court sentenced the rapist to an unprecedented less than even the minimum punishment prescribed under Sec 376(2). The reason they cited may further shame the judiciary. The judges defended the accused as an “unsophisticated and illiterate citizen belonging to a weaker section of the society…a chronic addict to drinking… committed rape in state of intoxication.” Even though the Criminal Law (Amendment) Act 2013 adds further sections to strengthen laws for women yet crimes are only increasing, pendency in courts discourages victims, insensitivity of judges provides support to the accused to play with these sections of laws. Now that one Chief Justice of India has already accepted a post-retirement political position the ethics of an erstwhile influence-insulated Judiciary has been breached and more judges would like to speak the language of the regime. The present CJI could possibly revive the ‘Social Justice bench’ set up by ex-Chief Justice C.L.Dattu in 2014 and later disbanded by the CJI T.S.Thakur. This bench should also have a research section to monitor the progress or decline of women in various professions especially their access to the top positions which are decisive and can help bring a real change in society. It would also be appropriate to link this bench to rural schools and countrywide professional institutions to address prevailing hurdles to substantive justice being nothing but a diseased psyche of men.
The religious doctrines which brand women as objects for consummation of marriage which in turn raises a question mark on blatant inequalities prevalent in personal laws should be gradually repealed through a dialogue with religious communities. Can morality be selectively imposed only on women or something like an Iddat or a Muta marriage coexist with a modern Muslim girl? Dowry is increasing under a new robe and has expanded to even the Muslims. Several families in West Bengal report that the Mahr which the groom pays to the bride as an obligation during the Nikah(marriage) ceremony is procured beforehand from the girl’s father and this practice has been leading girls to immense suffering. Despite the ban, Sati is still glorified through innumerable Sati temples spread around the country and one is right in Gurgaon next to the capital city where women throng to worship as their family expects them to.
In conclusion, an observation made by Late Justice Krishna Iyer in the Case of Krushna Lal v. State of Haryana (1980) summarizes problems of substantive justice to women. He observed that “a socially sensitized judge is a better statutory armour against gender outrage than long clauses of complex sections with all the protections writ into it.” There is more left to act outside law than within it so that judges who are also social beings can be expected to maintain their integrity and morality despite social, economic, and psychological influences that society may bring to them.
The author is president, NDRG, and former Professor of Administrative Reforms and Emergency Governance at JNU. The views expressed are personal.