Gender & Sexuality

Despite Indu Malhotra’s Appointment, India’s Male-Dominated Judiciary Has Ways to Go

Where the women at?
Supreme Court of India. Image: Wikimedia

The Supreme Court got its seventh woman judge in its 68-year history with Indu Malhotra sworn in as a justice of the apex court on April 27. There are 24 judges currently in place, and this brings the total number of women in the Supreme Court to… two.

The situation is not much better in the lower courts, with women representing only 28 percent of all judges across the country according to a report by the Vidhi Centre for Legal Policy. At the same time, incidents of rape and molestation are reported with alarming frequency, with thirty-nine women assaulted every hour in India in 2016, according to an analysis of data available with the National Crime Records Bureau.

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Recently, an incident in the Kerala High Court threw into sharp relief how difficult the path to justice is for women who are victims of crime. In many instances, sexual assault victims find themselves in traumatic situations, having to recount their ordeals in front of male judges.

On April 20, the court denied a Kerala-based actor’s plea for a female judge to hear her case. Though the court promised proceedings in a closed room, a lack of available female judges in the judiciary might have prompted the denial. At the time of her request, there were only two female judges in the district.

Sajitha Madathil is head of the Women in Cinema Collective, which is supporting a Kerala actor who was sexually abused last year. Image: Rejimon K

Aleyamma Vijayan, founder of Sakhi Women's Resource Centre, a Thiruvananthapuram-based NGO, told us why this is problematic. “In cases of sexual abuse, women, first of all, need a comfortable atmosphere to open up. It is quite impossible to do the same in front of a male judge,” Vijayan said. “While recollecting horrific incidents during court proceedings, a victim might have to undergo tremendous mental pressure and emotional imbalance,” she added.

Despite reports of crimes committed against women increasing at a rapid rate in the country, the negligible presence of women in India’s judicial system and a lack of any mechanism to change the scenario are creating psychological barriers for victims seeking justice.

Actor Sajitha Matadil leads the Women in Cinema Collective (WCC), an initiative formed by leading actors in the Kerala film industry to support their colleague who was sexually abused in February last year. Matadil said the actor’s plea requesting a woman judge to hear her case can be considered a genuine concern. “We expect gender sensitive judges in courts. We can’t say that all male judges are gender insensitive. But preferably, if women judges are there, we can expect sensitive hearings in cases of sexual atrocities against women,” she said.

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Nishtha Satyam, deputy representative for the United Nations Women office for India, Bhutan, Maldives and Sri Lanka, told us that “currently only 12 percent of judges in the Supreme Court and various High Courts are women, according to recent statistics released by the government," she said. "This not only points to a huge gap in the gender diversity of our courts, but also the missed opportunity in realising the untapped potential of women,” she said.

Satyam, however, feels that more women judges would not necessarily mean sensitive hearing of sexual abuse cases. “Having more women judges across levels will certainly bring about an instrumental change in the architecture of the judiciary and ensure that flag bearers of justice represent the society. However, it would be parochial to suggest that only women judges are suited best to deal with cases related to sexual violence,” she said.

Like Satyam, Kavita Krishnan, secretary of the All India Progressive Women’s Association, also felt that having more women judges in the country might not necessarily be a solution to gender insensitivity in courtrooms. “We do need more women judges for the sake of democracy and diversity in representation; but I am not of the opinion that women judges hearing sexual assault cases will necessarily be more gender sensitive. Plenty of women holding important portfolios in schools, colleges, universities, police force, etc. indulge in victim-blaming,” she said.

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But Inji Pennu, a journalist at Global Voices, argued that women judges can bring about a positive change regardless. “We saw how Justice Rosemarie Aquilina opened her courtroom so victims could speak up against sexual violence. Women can bring about that change in courtrooms. Representative images of Indira Jaising as 'Lady Justice' seen in Indian courts is much more than a mere allegory,” said Pennu.

The Indian judiciary does not currently have any mechanism to ensure that a certain percentage of judicial officers be represented by women. On the matter of appointing more women judges in the higher courts in Parliament last year, Law Minister Ravi Shankar Prasad said in the Rajya Sabha that there aren’t any provisions for women’s reservation in the judicial system now are they any constitutional mechanisms to maintain a healthy number of women judicial officers.

Bihar and Jharkhand have the lowest percentage of female judges.

He pointed out that the Constitutional Articles (124 and 217) related to the appointment of judges "do not provide for reservation for any caste or class of persons. Therefore, no caste or class wise data of judges is maintained," he had said. He'd added that the government wanted Chief Justices of High Courts to give due consideration to suitable women candidates, as well as those from Other Backward Classes (OBCs), Scheduled Castes and Scheduled Tribes, while sending proposals for the appointment of judges.

But Vijayan feels that more needs to be done to minimize gender gap in the Indian judiciary. “At the time of the Nirbhaya incident, this [the appointment of more women judges] was discussed and some campaigns were held. But later on, it died. We should renew it,” she said.

According to a recent report by Vidhi Centre for Legal Policy states with the lowest representation of women judicial officers in the country include Bihar and Jharkhand with 11 and 14 percent of women judges respectively. In Kerala, males constitute 67 percent of the total number of judicial officers.

Satyam feels the only way forward to have an inclusive and representative judiciary in all aspects including gender is by having more officers from different backgrounds. “India is signatory to the Convention of the Elimination of all forms of Discrimination against Women (CEDAW) treaty in which Article 1 focuses on the various forms of discrimination that women face and sets a legal standard to eliminate discrimination that either intends to, or has the effect of, limiting women from participating equally in public life. Hence more positive measures need to be (taken) in this regard,” she said.

The author is a member of The NewsCart, a Bengaluru-based media startup.