Reporter's Diary: All Women Bench, a Claire Dube moment for India?

Bar & Bench September 5 2018

Reporter’s Diary is a series that brings you interesting snippets from court hearings across the country. It attempts to offer our readers a glimpse into the interactions between judges and lawyers appearing in cases and offers a take on recent developments in the courts.

As Supreme Court’s all-women bench assembles on Wednesday for the second time in its history, critics may ask what is so significant in it; after all, we don’t identify a bench comprising only male judges.

Gatecrashing the old boys club in Tilak Marg is not easy. Now that the Apex Court has three women judges, two of whom will sit together without a brother Judge on a bench on Wednesday, it needs to be asked, what next?

Many observers seem to agree that glass ceilings have been broken, with the first woman senior advocate from the bar, Indu Malhotra, having been directly appointed to the bench recently. With Justice Indira Banerjee’s appointment to the Court this month, she is also the first woman Judge to reveal in the open court about an attempt to influence her in a case, but she was not inclined to recuse on that ground.

The last such admission was made by the late Justice JS Verma, when he was sitting with Justices SP Bharucha and SC Sen in the late 1990s while hearing the Rs.650 million Jain hawala case. The pressure was being built up to force the individual judges to withdraw from the case, the judges disclosed in an open court, but made it clear that none of them would do so.

Since then, there have been instances of Judges recusing from hearing cases, because they were approached, although the reasons for recusals were not made public. By making public the reason for her non-recusal in the case, Justice Banerjee has indeed revived the spirit of 1990s Supreme Court. Many may find this a refreshing change, albeit brought about by the gender transformation.

As Justice R Banumathi presides the bench comprising herself and Justice Banerjee on Wednesday, the temptation to compare the Indian Supreme Court with that of the United States and Canada cannot be resisted.

all women bench

Justice Indira Banerjee and Justice R Banumathi

The US Supreme Court got its third woman Judge, with the appointment of Elena Kagan as the Associate Justice since August 7, 2010, while the Canadian Supreme Court reached this milestone much earlier in 1989 with the elevation of Justice Beverley McLachlin, PC, CC. She was also the first woman chief justice of Canada, having been appointed to the post on January 7, 2000. The strength of both the US and the Canadian Supreme Courts is nine Judges, who enjoy a life-long tenure, with the option to retire at any time. The Canadian Supreme Court currently has four women Judges.

But it is the second woman Judge of the Canadian Supreme Court, appointed in 1987, Justice Claire L’Heureux-Dube, who could be the role model for aspiring women lawyers and Judges in India.

Justice Claire L’Heureux-Dube

Retired on July 1, 2002, Justice Dube, emphasised gender neutrality in the judiciary and legal practice and refused to use the words, Madam or Miss, as a prefix to her name. It was Justice Dube whom senior advocate, Meenakshi Arora, recalled when asked to comment on the rise of women in the legal profession, recently on a television programme. The professional achievements of women Judges or women lawyers must not be trivialised in terms of their gender, Arora advised the media.

Incidentally, whether it is Canada or India, women Judges and women lawyers, have had to overcome significant gender bias among their male colleagues. Justice Dube, who was one of the most prolific dissenters of the Court, with a unique writing style, recalled that a fellow Judge on the Supreme Court refused to speak to her for the first three months after her appointment before passing her a note saying he considered her to have passed her probationary period.

Justice Leila Seth, in her autobiography, “On Balance” refers to bias among her male colleagues on the bench in the high courts where she served, which made them disagree with her judgments, only because of her gender.

Meenakshi Arora, talking about her own experience of dealing with male colleagues in the profession, said,

There are three kinds of male colleagues, that every woman counsel has to deal with.

The first category includes progressives, for whom gender does not matter at all. They deal with their male and female colleagues alike and make no discrimination. The second category comprises men who always carry their baggage with them, and refuse to treat women counsel at par with male counsel.

The third includes those who pretend to be progressive, but in practice, tend to be very conservative in their attitude towards women.

I don’t have problems with the first and second category of male colleagues, but have a problem with the third. In my long career as an advocate, I have learnt to deal with all the three categories of male colleagues.”

 

Justice Claire L’Heureux-Dube image taken from here.

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