Why the Collegium needs to consider appointing more women to higher judiciary

On 25th January 2021, during a hearing of SEBI vs Franklin Templeton Trustees Pvt. Ltd., there was only one female senior advocate in the courtroom who was interrupted several times while trying to put across her point by four, male opposing counsels.

Angered by this, she made a statement that her point of view was continuously disregarded. She also stated that she feels that this was because of her gender as she was the only female advocate in the virtual courtroom.

This statement of hers was met by the laughter of the opposing counsels, who happened to be several eminent senior advocates. Afterwards, when the proceedings were coming to an end, there was just one small line of clarification given by the bench.

They stated that she was not being interrupted because of her gender but because of some ‘technical issues’ which crop up during virtual hearings.

This episode makes one wonder that if one of the leading senior advocates in the country today can be ridiculed so easily by opposing counsels when she points out that she makes a contention about feeling discriminated against because of her gender, then to what extent do the women advocates who practice in lower courts or are not as experienced have to go through when they try to do the same. It also crops up the question that if the courtroom on that day had a fairer representation of both genders, would the court have tolerated the reaction of those few advocates?

The answer to the above question would be in the negative, and there are several reasons why if there were more women in the judiciary, this incident could have been avoided, and many other similar incidents could have been avoided.

It has been found through several studies which relied upon statistical data that when female judges would be deciding upon cases related to women and feminist issues, they can provide a more enriching courtroom experience as they would ensure that the women as parties to a case or as advocates in a courtroom, will not be subjected to sexism and at the same time would not let their male colleagues move forward with an approach which upholds gender bias.

Although this contention has been criticized by the Neuberger experiment, if one thinks of cases where the Supreme Court had utterly failed in their duty to protect women and their fundamental rights and ponders what would have been different if there was a better gender representation on the bench, one cannot do away with the contention made above.

If one applies it to the case of Tuka Ram vs the State of Maharashtra (1979 2 SCC 143), wherein a young Adivasi girl was raped by two policemen inside a police station, and the two policemen were acquitted by a bench of the Supreme Court, which consisted of 5 male judges on the basis that if there are no injuries, consent can be implied.

In this case, the bench had a ‘Marie Antoinette moment’ when they said that “[the victim] simply should not have meekly followed the policemen, allowing him to satisfy his lust in full”.

The court simply ruled out the possibility that the young girl could have been overawed and scared by the two policemen while being held up in a police station after being called in for questioning. This viewpoint of the court could be attributed to the fact that the five male judges could never relate to the young girl as they cannot imagine themselves in the position of the victim in the present case.

If for the present case, the bench had the presence of all the genders and not just males, it can easily be said that the Bombay High Court’s judgement would not have been overruled as a diverse bench would have brought in their viewpoint from their own life experiences which is hugely different from that of a male as all women, transgender people and non-binaries in society have been subjected to a certain degree of oppression in all spheres of life which the male gender has not experienced.

As it was stated by the South African Judicial Services Commission (2010), it is also important to keep in mind the message which is sent to the community at large whenever an appointment to the Apex Court is made. Hence, in order for the Supreme Court to show that they are committed to the agenda of women empowerment and better representation of all genders in the judiciary, it is vital that India receives a female Chief Justice. However, the same remains a distant reality as of now.

After the recent retirement of two prominent female supreme court justices, Indu Malhotra and Justice R. Banumathi, there is only one female justice in the Apex Court, Justice Indira Banerjee who is also set to retire in 2022. Having one female justice and a male dominated Supreme Court hardly seems fair in a country where 48 percent of the population is women and there is an increasing focus on improving the representation of women in all the pillar of democracy. The new Supreme Court collegium which is headed by India’s 48^th Chief Justice N.V Ramana is burdened with a huge but necessary imperative of reducing the gender disparity in the Indian judiciary.

The former Chief Justice, S.A. Bobde stated that “Time has come for a woman Chief Justice of India”, however his actions stated otherwise when it was upon him and the collegium headed by him to appoint Justice B.V Nagarathna of the Karnataka High Court.

Justice Nagarathna stands at Rank 46 in the seniority list to the Supreme Court who one day could have become the Chief Justice. However, the collegium headed by CJI Bobde failed to reach a consensus for her appointment and this now serves an example of how the glass ceiling in the judiciary is becoming prominent with each passing day.

If however, Justice Vikram Nath, the current Chief Justice of the Gujarat High Court is appointed to the Supreme Court before Justice Nagarathna as he ranks fifth in the seniority list, then he will be appointed as the Chief Justice of India.

This would mean that India will again lose the chance to have a female Chief Justice till after 2027.

While disagreeing with the appointment of Justice Nagarathna, two members of the collegium gave the reasoning that the their much more senior candidates who could be considered for vacancies. But now is the time to put the convention of ‘seniority’ in judicial appointments aside and it is impertinent to close the glaring gender gap in India’s Supreme Court bench.

As Dr Abhinav Chandrachud has previously argued that seniority norm acts as an exclusionary and discriminatory instrument to keep female judges outside the Supreme Court, an informal quota system can compensate for such a disparity by appointing women to the bench to make it more gender-inclusive and representative. Such a quota system would act similarly to a positive discrimination clause in the Indian Constitution under Article 243 D(3) and Article 243 T (3) or even the Constitution (108^th Amendment) Bill, 2008.

The januis clausis operation of the collegium for judicial appointments has attracted considerable opprobrium from the general public. The birth of the Collegium through the verdict in the Second Judges Case and the expansion of the panel to include the four most senior judges post the decision in the Third Judges case has been a fierce move of the Judiciary to be an independent player.

However, there remains a lot of opacity in the workings of the collegium. Hence, the question that comes to mind is if it is the time for a Fourth Judges case which will help in increasing the accountability in appointments as was stated in an open letter envisaging the SC order in the case of R.P Luthra v. Union of India Ministry of Law (2017 SCC OnLine SC 1254), which is famously known as the ‘Four Judges’ Controversy.

Lastly, the Supreme Court should take a note of what was observed by the Delhi High Court in the decision of Naz Foundation v. Govt. of NCT of Delhi, that if there is one constitutional tenet that can be said to be an underlying theme of the Indian Constitution, it is that of inclusiveness. Women’s struggle to break the glass door to enter male dominated fields while living up to societal expectations has been a never-ending road to an imbalance of responsibilities.

All the while generating a socio-cultural bias in a largely patriarchal society like India. Therefore, instead of delaying judicial diversity and soft pedalling around the appointment of a female justice to the Indian Supreme Court , we need tolerance of positive differences and encouragement of substantive diversity in the Indian judiciary.

(The authors are first-year students at Jindal Global Law School)