Justice Leila Seth was the first woman Chief Justice of a high court in India.
“Now that we have a woman judge,” her colleagues had said at a celebration organised by the high court, “we do not have to worry about catering; she will make all the tea arrangements.”
A lot has changed since. A lot has not.
Seventy years into the working of an egalitarian constitution — we are still looking for many firsts. For instance — a woman Chief Justice of India.
The Union law ministry, recently, informed parliament that there are only two women judges in the Supreme Court of India and 78 in various high courts across the country. There is thus a total of 80 women judges in India’s higher judiciary which has a current strength of more than 700. A meagre representation of less than 12% in a country where women make 48% of her people.
India’s house of law is a textbook case of a leaky pipeline.
In gender studies, a leaky pipeline is a metaphor for the way women disappear from their careers, midway, leading to only a few of them emerging at the top. This is exhibited by the fact that women make more than one-third of the judges when it comes to the lower judiciary, however, as one goes up, one is disturbed to find that in its 70-year-old history, the Supreme Court of India has had only 8 women judges and no woman as its leader.
The high courts across the country demonstrate similar sobering statistics.
The malaise that we see today is the consequence of both systemic and behavioural infections that has found a home in India’s legal system. It begins with the rules of appointment for judges. Places where the appointment is on merit – based on an exam in the lower judiciary – women do exceedingly well, demonstrating that they lack neither in skill nor in enthusiasm. However, as soon as the rules tilt towards a system of appointment based on recommendations: they go missing. They fall in the cracks of a societal notion that genders the progress of human beings – into the chasms of othering where you are either male or a misfit.
There is also the problem of rules made by men for a game they have designed to be played by them. The eligibility to become a judge requires several years of continuous practice from an advocate. This upheld and celebrated canon militates against the prospects of women aspiring for the bench. The very real challenges posed by the mere biology of pregnancy, coupled with our social paradigm that burdens (even as it professionally penalises) women into singlehandedly shouldering the responsibilities of primary care-taking of children and the larger family, are intervening at best, and disruptive at worst.
Then, there is the complication of the fact that there are but a few women in the pool of advocates from where judges are picked. The reason for that is even though women enter law schools in almost an equal number as men, many do not opt for litigation because of the very nature of India’s courts which scream discrimination with both lungs – architecture and environment.
Our courts are designed by men ignoring the sensitivities of the other. They, therefore, do their best to make the women feel uninvited. Washrooms for them are scarce. Minimum basic requirements such as vending-machines for sanity napkins, creches, and nursing spaces are either exiguous or non-existent. Add to that the persistent assault on the courage of the few who despite these hardships, are brave enough to opt for litigation.
“I have been sexually harassed in the corridors of the Supreme Court of India,” wrote Indira Jaising, in her open letter to the Chief Justice of India, “notwithstanding my grey hair and notwithstanding that the corridors are under CCTV surveillance.”
“When I was practising in the Madras high court,” wrote Kiruba Mununswamy, “a judge commented about my short hair, which I couldn’t tie. He said, ‘Your hairstyle is more attractive than your argument’.”
One shudders to imagine the situation in the lower courts, in the smaller towns of India, for our young women advocates who are out everyday fighting for justice.
This architecture of assault is unacceptable. This scheme of disenfranchisement is unacceptable.
This disease should be recognised and treated with urgency. Not only in fancy conferences, over expensive coffee, but also in places where decisions are made.
2020 is not 1920. Things can’t go on as usual. Men must know that they are no longer expected to be the gate-keepers of their gender. And that women are no longer willing to sacrifice their competence at the altar of patriarchy. Things will have to change. Actions will have to follow. And from the top. Specifically — the collegium. For, no power is more powerful than the power of an example.
“I measure the progress of a community,” said Dr. Ambedkar, “by the degree of progress which women have achieved.” India must be the country of the dreams of her founders.
Chandan Karmhe is a Chartered Accountant, an alumnus of IIM-Ahmedabad and a Delhi University law graduate.
Featured image credit: Reuters