Balancing the scales

To have four women head the four major high courts of India—Manjula Chellur in Bombay, G. Rohini in Delhi, Nishita Nirmal Mhatre as acting chief in Calcutta, in addition to Banerjee, of course—might seem like a Kodak moment for gender rights.

It isn’t.

To understand why, look at the stats. Madras high court has six women judges to 53 men. In Bombay high court, it’s 11-61; Delhi’s score is 9-35 and in Calcutta high court it’s just 4-35.

When we cite India’s abysmal statistics with regard to women in positions of power and leadership, we tend to look accusingly at Parliament where women comprise 11.3% of all MPs (incidentally, the highest in our history).

Yet, incredible as it might seem, the representation of women in the higher judiciary is worse. Of the 632 judges in the various high courts, only 68 are women. That’s a measly 10.7%, writes Dhananjay Mahapatra in The Times of India. Eight of the country’s 24 high courts don’t have a single woman judge. And of the 229 judges appointed to the Supreme Court since 1950, only six have been women. At present, there is just one.

“Having four women head these high courts is just a historic accident. Appointing a few women here and there has no meaning," says justice Prabha Sridevan, a former judge of the Madras high court. “You need a critical mass to make a difference to jurisprudence," she says.

Nobody’s arguing for quotas in the judiciary. After all, if judges deliver judgments without fear or favour, their gender, caste or sexual orientation should not matter. Moreover, if you were to look at Supreme Court judgments on, say, the gender rights of minority women, then male judges have generally upheld the Constitutional right to equality over discriminatory personal law.

In other words, you can have sensitive male judges just as you can have insensitive women judges.

Nevertheless, increasing the number of women judges is important for three reasons. The first is to create positive role models. The fact that “my lord" can be female is thrilling and inspiring to an aspirational generation of women who are struggling to overcome barriers and prejudice.

Young women with freshly minted law degrees must know that they can have a seat on the bench. A personal aside: my late mother-in-law, Sunanda Bhandare presided over what many women lawyers affectionately called the “mother bench" in the Delhi high court.

Second, and more important, is the need for an inclusive, representative judiciary. The point is not whether judges make impartial decisions—we trust they do—the point is that the judiciary must represent the diversity of civil society.

Imagine the implications for federalism if, for instance, states were not adequately represented or if the higher judiciary consistently excluded minority communities.

“It’s not that women judges will be biased towards women," says justice Prabha. “But as women, they have different lived experiences and will certainly understand the realities of a woman’s life better."

The third reason for having more women judges in the higher judiciary is quite simply the moral one. How does an institution committed to the Constitutional principles of equality explain such a lopsided representation amongst its own judges? And what does it say about its attitude to fairness and transparency?

It cannot be anyone’s case that there aren’t enough capable women candidates. In lower judiciary, there are considerably more women judges who do an excellent job. “If merit is the consideration, then you only have to look at some of the excellent women judges in the smaller towns," says advocate Madhavi Divan.

In the larger cities like Mumbai or Delhi, there are more than enough women who practise law, and practise it with diligence and brilliance. Why don’t we see more of them on the bench?

Because, says justice Prabha, “When it comes to appointing women, the biases and stereotypes come to the fore. People will use adjectives like ‘arrogant’ or ‘temperamental’, which they would never use for men."

It’s a bias that exists even with the appointment of senior counsel where women seem subject to a far more rigorous vetting system. When you have a handful of women seniors, you almost inevitably end up with a handful of women judges.

Is there a will to change the situation and appoint more women to the higher judiciary? “It’s all up to the chief justice of India," says justice Prabha. “If he sends a signal, more women would surely be appointed in the various high courts with more women being appointed to the Supreme Court."

We have a unique opportunity right now.

The sanctioned strength of the high courts is 1,079 and there are 447 vacancies in the various high courts. Will a historic imbalance be set right?

That blind-folded woman who holds up the scales might just approve.

Namita Bhandare writes on social and gender issues.

Her Twitter handle is @namitabhandare.