In theory, the law is supposed to be impartial to gender. In practice, the reality is anything but impartial.
Nine of out ten judges in India’s higher judiciaries are male. There have never been more than two female judges in the Supreme Court at any one time – meaning that women have never had more than ten percent representation in India’s highest court. There has never been a female Chief Justice of India.
This is concerning for many reasons, not least of which being that male judges largely determine the nature of laws that affect women. Thus, we have it that the five-judge panel that delivered the historic judgement to abolish the practice of Triple Talaq was composed entirely of men.
For many women, life in India’s courts is a constant reminder that the industry is patriarchal. There is a good reason why a woman has yet to become the presiding Chief Justice – appointment is made on the basis of seniority, and since 1950, there have been only six female judges in the Supreme Court. Breaking past the glass ceiling of India’s courtrooms has been an uphill task for all women – irrespective of seniority.
The case of Avani Bansal comes to mind. Avani completed her Master’s in Law at the University of Oxford. Her qualifications were stellar, but she had to start from the bottom like anyone else. When she started practising at a district court in Harda, Madhya Pradesh, male lawyers commented on her attire, dismissed her degree and even yelled at her not to ‘act smart’ if she spoke out.
Even very senior advocates like Indira Jaisingh (India’s first additional solicitor-general and the first senior advocate in the Bombay High Court’s 154-year-old history), have faced discrimination in the workplace. When she fights her cases in court, the presiding judge often asked the male lawyers to speak first. She even reported being physically harassed in the corridors of the Supreme Court.
Given the uphill journey that some of India’s most qualified female lawyers face even today, the case of Anna Chandy from 88 years ago is incredible. Anna was not the first female lawyer in India – that honour goes to Cornelia Sorabji. But where Cornelia was prevented from practising in court (despite many years of struggle), Anna refused to be silenced from her very debut.
When Anna was just a 24-year-old graduate from law school, she barged into a public talk being given by Sadasyatilakam T. K. Velu Pillai – a powerful and prominent judge and ‘intellectual’ at the time. Pillai’s speech was against the employment of women in government. Anna treated the speech as a petition against women and sought to represent the defendant – all women – by herself. In the course of many public debates, Anna broke through the domain of the ‘male intellectual’ in challenging a judge who was many times her superior.
Anna is considered as a first generation feminist India. While practising as a barrister, she ran a publication called “Shrimati” (a title of respect for a woman in India, the equivalent of Ma’am). In 1936, she supported artificial contraception on the grounds of women’s rights over their bodies.
In 1937, she became a Munsif in Travancore State – effectively India’s first female judge – and by 1948, she was a judge in the High Court of Kerala. A brief glimpse over her life will demonstrate the difference that a female judicial authority can make.
The male perspective and its inherent patriarchy are evident in many court judgements. A Supreme Court judgement calls separating a male from his parents a ‘cruelty’ but does not describe a woman’s separation as the same (women are often made to leave their parents homes and reside with their husband in India). Another judgement suggested that women be “like goddess Sita who left everything and followed her husband Lord Ram to a forest and stayed there for 14 years.”
Another judgement, by a lower court, suggested that a woman could not have been raped by her male friend, as she had not scratched his genitals. “Ordinarily, where forcibly sexual intercourse is committed upon a grown-up girl there would be…some injuries on the person of accused particularly, if she has long nails.”
An active and unbiased judiciary is key to implementing the spirit of the Constitution. In the case of women’s equality, many laws exist but with poor implementation. In 1974, the Equal Remuneration Acts and Rules were made law, yet, as of 2017, men in India earn 67 percent more than women do in their equivalent fields. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act came out in 2013 – but the problem it sought to ban persists even at some of India’s most prominent companies.
Indira Jaising has supported Affirmative Action (commonly known as ‘reservation’) within the judiciary. The idea of guaranteeing a judicial position on the basis of gender will almost certainly be controversial. But the fact remains that for half the population, climbing up the career ladder of India’s court system, is an uphill and unwelcome journey. What needs to change are not just mentalities, but levels of representation. Equality has many miles to go before the law can truly claim to be blind in India.
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