This article has been authored by Roopal Dhoot, a second year student at ILS Law College, Pune.
Women in Indian Courts of Law
It is 2021, and unfortunately we never had a woman Chief Justice of India. Although we are making immense progress in various fields but now even now the idea of a gender-balanced judiciary is far from becoming a reality. The representation of women across different judicial bodies and Courts is abysmally low.
In March 2019, the Attorney General KK Venugopal remarked in the Court that Senior Advocate Anand Grover was appearing for his wife, Indira Jaising. She being a Senior Supreme Court Advocate took exception to her being referred merely as someone’s wife in the Courtroom. She said Mr Attorney you should withdraw this remark. “I am a person in my own right.” Such casual sexism is a running theme across different levels of the judiciary. Improving the representation of women in the judiciary could go a long way including a more balanced and empathetic approach in cases involving sexual harassment.
Two male judges in the Madhya Pradesh High Court ordered the accused in a case of an attempt to outrage the modesty of a woman to visit the home of the alleged victim and request her to tie rakhi as a condition for bail. The overnight transformation of a molester to a rakhi brother would defy all the cultural beliefs about Raksha Bandhan. The symbol of rakhi cannot be used to dilute the pervasiveness of sexual harassment as an offence. This is one of the most important reasons why gender diversity is needed in the Indian judiciary. Many empirical studies show that even one woman on a panel have an effect on the entire panel’s decision-making in sexual harassment cases.
Representation of Women in Public Offices of Other Developing Countries
Rwanda has by far the best record for female representation in Parliament, with nearly two- thirds of its seats currently held by women. Cuba and Bolivia also have more than 50% women in Parliament. Mexico being a developing country has taken significant steps to promote equality and close gender gaps. Mexico has been a leader in measures to increase the participation of women in public offices. By 2017, women already held more than 45% of seats in their legislative bodies. Instead of being a developing economy, all these countries have achieved remarkable progress in terms of women’s representation in their respective public offices by taking significant measures.
Why The Journey Of Justice Indu Malhotra Is Unforgettable One?
Justice Indu Malhotra was a trailblazer in a profession that suffers from an abject lack of gender representation. A career that lasted for more than three-decade with a series of achievements undoubtedly shattered the metaphorical glass ceiling. On April 27, 2018 she was elevated as the Judge of the Supreme Court directly from the bar, making her the first women to hold that distinction. She is not only known for her calm and firm behaviour but also for her never hesitating attitude for voicing her dissenting view.
A Woman with Many Hats
Within five years of entering the bar, she topped the Advocate-on-Record examinations, one of the toughest exam conducted by the Supreme Court. Justice Malhotra’s contribution to the evolution of arbitration is particularly noteworthy. She was one of the first members of Supreme Court’s Vishaka committee set up to combat sexual harassment. Her persuasive skills as a lawyer prompted the Supreme Court to frame the guidelines for the protection of good Samaritans who came to rescue and aid victims of a road accident. CJI SA Bobde said, “When Justice Malhotra appeared in the Court she would not stop her arguments because she prepares so well that she could not resist telling everything she knows”. He further added that he does not know a finer judge than her. In present state of the Indian judiciary, Justice Malhotra has successfully carved out a space for herself in the corridors of the Supreme Court.
Judgments by Justice Malhotra are known for their brevity, clarity and thoroughness. Some of her most notable judgments are-
The landmark case of Indian Young Lawyers Association & Ors v. State of Kerala & Ors. The five-judge bench favoured for allowing women of all ages to enter the Lord Aiyappa temple. The 4:1 verdict held that the existing ban violates the rights of Hindu women. The only judge on the bench penned a dissenting opinion and favoured protection of religious practice instead. Important observations by Justice Malhotra said that, it was not for Courts to decide which religious practices are to be struck down except in issues of social evils like Sati. According to her, in a pluralistic society comprising of people with diverse beliefs, traditions, and faiths entertaining PIL challenging religious practices could cause harm to the secular fabric of the country.
In Navtej Singh Johar v. Union of India, the Supreme Court read down Section 377 of the IPC to decriminalize same-sex relations between consenting adults. Justice Malhotra’s judgment particularly noted that “history owes an apology to the members of this community and their families for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.”
In Rajesh v. Neha, the Court dealt with the provision of maintenance after divorce. Justice Indu Malhotra’s judgment in the case issued detailed provisions on maintenance for women and children. It streamlined various legislative schemes and provides procedures to ensure speedy trials it also laid down relevant factors for calculating the quantum of maintenance and the date from which it should be awarded.
On 12th March 2021, the Supreme Court bid farewell to Justice Indu Malhotra. Her tenure is one of the shortest tenures but her elevation creates history as she was the first woman advocate to directly become a Supreme Court Judge. After the retirement of Justice Malhotra, currently, there is only one female judge out of 29 judges at the Apex Court. Justice Malhotra addressed gender disparity in the justice system in her farewell speech. She said that she does not subscribe to token symbolism and meritless appointments, as a solution to address the lack of representation of women. She further added that society indeed benefits when gender diversity is found on the bench. Having a more diverse judiciary ensures diversity of perspectives is fairly considered.
Justice DY Chandrachud, during the farewell of Justice Malhotra said, “As a member of legal fraternity we do our bit to ensure that it doesn’t remain as hard as it was for Justice Malhotra for women to climb upper echelons of our profession”.
The Supreme Court of India has delivered remarkable judgments on gender identity, but the actual progress of the Indian judiciary should be measured by the number of women in higher positions. The main aim of the judicial system is to provide justice, but here we are failing to provide justice to our own women. The way Justice Malhotra puts forth her point whether it’s a dissenting opinion or her judgment is praiseworthy. The journey of Justice Indu Malhotra from lawyer to Supreme Court judge is indeed an inspiration for many women advocates.