While a lot has been talked, written and debated on gender biases when it comes to appointing top judges and how the post of judges has been historically monopolised by the men, there is also a disproportionate representation in judiciary on the lines of caste. Yet, this blatant fact of caste-based discrimination in appointment of judges in higher judiciary is seldom talked about. Isn’t it equally necessary to correct the caste discrimination and imbalance, also the result of “centuries of suppression”, and demand reservation for not only women, as has been suggested by the Chief Justice of India, NV Ramana, but also the Dalits, Adivasis and other marginalised communities in the judiciary, especially at its higher echelons, writes Amit Jugnu.

On Sunday, 26 September, 2021, the Chief Justice of India, NV Ramana, spoke in favour of 50 percent reservation for women in the judiciary. He also encouraged similar demands of reservation in law colleges across the country. CJI Ramana made these remarks while speaking in a felicitation ceremony organised by women advocates of the Supreme Court for him, and nine newly appointed judges to the Supreme Court. “It is your right… you are entitled to demand that (reservation in the judiciary and law institutions),” said CJI Ramana while addressing the ceremony.

The list of nine new judges sworn-in on 1 September, 2021, has been widely celebrated for including three women Judges – Justices Hima Kohli, BV Nagarathna and Bela Trivedi. The names were proposed by the Supreme Court Collegium— a high-powered appointment panel led by the Chief Justice of India and comprising four senior judges of the top court. The collegium’s decision to elevate three women judges to the Supreme Court is being hailed as unprecedented and historic for two reasons. Firstly, this is the first time that the Supreme Court have four sitting women judges. Secondly, Justice Nagarathna is set to become India’s first woman Chief Justice in 2027, though she will hold office for just over a month (a judge can hold the CJI office only till the age of 65) from 23 September to 29 October in 2027.

The demand to correct gender imbalance in the judiciary, particularly, in the state High Courts and the Supreme Court, has gained momentum in recent times. Not only gender activists, but senior advocates, eminent jurists, ex-judges and many politicians have also backed the demand for better representation of women in the higher judiciary.

But the urgency increased after the way in which sexual harassment complaint against former CJI, Ranjan Gogoi, was handled, and various patriarchal and gender insensitive remarks (Example: Attorney General K.K. Venugopal’s remark about the identity of senior advocate Indira Jaising) and comments (Example: Former CJI Bobde’s comment on marital rape) kept coming from the higher judiciary. The appointment of the three women judges to the Supreme Court and the CJI’s strong advocacy for reservation to correct gender imbalance should be seen in this context — as an exercise to restore the image of the Supreme Court in public eyes.

The scenario of gender imbalance in higher judiciary

While the appointment of Justices Nagarathna, Kohli and Trivedi is welcome, one also needs to ask, is it really that much of a cause to celebrate? The Supreme Court was established in October 1935 and functioned as India’s federal court until it assumed its present form in January 1950. The initial strength of the judges was only eight. As the number of cases increased, the number of judges also went up. Currently, there are a total of 33 judges in the Supreme Court, including the Chief Justice of India. The presence of four women judges out of 33 (12 percent) after 75 years, that is being hailed and celebrated as unprecedented, is actually too little, too late, and grossly insufficient, since women comprise 49 percent of the total population.

The fact of the matter is that representation of women in higher judiciary remains abysmally skewed and fixing it will require a great deal of conscious intervention, at all levels of the legal profession and also political backing of the Executive. Since 1950, India’s Supreme Court has had 47 Chief Justices and over 170 other judges. But there have been only eleven female Supreme Court judges, beginning with M Fathima Beevi in 1989, forty years after its establishment. Since 1989, only seven other women have been appointed as judges of the Supreme Court, and  with the recent swearing in of three more women judges, the number has increased to eleven. The condition is no better in State High Courts. There too, women’s representation is minuscule. Across the 26 high courts in India, there are only 77 women judges out of the total 644 judges. At least five states do not have a single woman judge. The situation is somewhat better in lower courts. Women constitute about 30% of the subordinate judiciary.

That the higher judiciary still remains predominantly an all male bastion became amply clear when Chief Justice Ramana pointed out  “In High Courts, women judges constitute 11.5%. Here in the Supreme Court, we currently have four women Justices out of the sitting 33. That makes it just 12%. Of the 1.7 million advocates, only 15% are women. Only 2% of the elected representatives in the State Bar Councils are women…. There is no woman member in the Bar Council of India. This needs urgent correction”.

Challenges faced by women law practitioners

In a gender insensitive male dominated society, even the onus of their under representation in higher judiciary is conveniently put on the women themselves. This is best exemplified by the remark of former CJI SA Bobde that women lawyers cite domestic and parental responsibilities to refuse judgeship. “Time has come for a woman Chief Justice of India. (But) Chief Justice of High Courts stated that when lawyers are asked to come on the bench they deny saying they have domestic responsibilities,” CJI SA Bobde said.

Being a Chief Justice of the country, enjoying unprecedented power and prestige, a better understanding of the reality, sensitivity and responsibility is expected of him before making such unverified public comments. Bobde conveniently overlooked the challenges that women advocates face, which include, but are not limited to the infrastructural deterrents like lack of female washrooms, creches for working mothers and unfriedly working environments in courts. His comment hides the lack of basic facilities in courts, especially for women, that need to be addressed immediately. The reality comes out when the current CJI said “The survey I directed found out that out of 6,000 trial courts, nearly 22% have no toilets for women.” “Clients’ preference for male advocates, uncomfortable environment within courtrooms, lack of infrastructure, crowded courtrooms, lack of washrooms for women etc. — all these deter women from entering the profession,” the CJI said, while speaking at the felicitation ceremony.

Besides infrastructural lacking, the social custom of parental and familial responsibilities falling disproportionately on women, there also prevails an anti-women environment in this exclusive male bastion. Attorney General Venugopal in a written submission in the Supreme Court, besides calling for higher representation of women in judiciary to ensure more empathetic approach to sexual violence cases, has also talked about gender disparity in designation of lawyers as senior advocates. The Attorney General noted that even though the number of women enrolled in law school is equal to men, not many women lawyers get designated as seniors. There are only 17 women senior advocates in the top court, as opposed to 403 men, his submissions claimed. This implies, there are very few senior women advocates to choose from, while appointing judges to the Supreme Court and the High Courts. When the number of designated senior women lawyers is disproportionately so low (about 4 percent), the chances of more women becoming judges also remain minimal.

The toxic masculine environment and sexism that run deep in the higher echelons of the judiciary can be best understood if we read the experience of noted advocate Indira Jaising in an article by a Dalit lawyer practising in the Supreme Court of India. A judge in Madras High Court once passed a comment on her short hairstyle. She protested, but other male lawyers made her apologise. We quote her from the article:

When I was practicing in the Madras High Court, a judge commented about my short haircut, which I couldn’t tie. He said, “Your hairstyle is more attractive than your argument. Women having short hair and men having long hair, wearing studs have become a fashion these days but I don’t like it.” I replied that I have been keeping short hair since my school days. I also mentioned that I have migraine and can’t keep my hair tied for long, so I had it cut short. I pointed out to him that there is no bar council rule or code that prescribes the hairstyle of women. His response was, “Of course, there are no rules. But I am just telling my opinion.” Regardless of the judge’s comment, I was told by other male lawyers present in the court to apologise to the judge. Despite being the petitioner’s counsel in a transwoman’s police appointment case, I was mistreated, insulted and told to shut up by the judge.

One time, a senior counsel in the Supreme Court that I was practicing under didn’t take me to the court because I was keeping my hair open (which I did because of a migraine); another counsel asked me to quit and get married because I had asked for a day off during my periods. He went on to say that this is the reason why he never recruits women juniors. These incidents are not my experiences alone but of nearly every woman in the profession. Whether it is male lawyers or judges, conscious or subconscious bias against women lawyers are so ingrained that they are not able to differentiate between a joke and a derogatory or sexist remark. This under-valuing of women lawyers, besides not recognising their presence and professional competence, makes them invisible.

In an open letter to the Chief Justice of India on Women’s Day in 2019, Indira Jaising wrote : In the pursuit of a “gender just” and “equal” society, misogynistic phraseology in political, social or legal parlance cannot be allowed, entertained or nurtured. She further added — Judgments of courts across the country enjoy the status of being the law of the land, but unfortunately judicial language continues to use words and phrases which perpetuate patriarchy, endorse stereotypes of women’s perceived roles and behaviour and entrench biases that are detrimental to the status of women in our society.

If this has been the experience of Senior advocate and a former Additional Solicitor General, one could imagine how difficult it would be for a first-generation woman lawyer. Just imagine the adversities ordinary women lawyers have to face everyday in their workplace. Chief Justice Ramana has rightly stressed on the lack of infrastructure, gender stereotype notions, and social attitudes that have plagued the entry and progress of women in the legal profession, and has brought into public discussion the contentious issue of reservation in appointment of judges in higher judiciary.

Silence About Caste Discrimination in higher judiciary

Undoubtedly, there exists gender discrimination in India in almost all institutions, including the legislatures (Union and State) and the judiciary. CJI Ramana has correctly called it an issue of “thousands of years of suppression” and invoking Karl Marx’s famous “workers of the world” call, proclaimed before the gathering of women advocates: “Women of the world, unite. You have nothing to lose but your chains.” In the current environment of regressive rightwing ideology dominating every institution, it is indeed heartening and comforting to hear such a sane voice, and that too coming from the highest judicial office of the country. The gender imbalance in judiciary does “need urgent correction” and the CJI’s call for women’s reservation, both in appointment of judges and in admission to law colleges across the country, needs to be taken with utmost seriousness by the rulers, who have the power of decision making on the subjects.

While a lot has been talked, written and debated on gender biases when it comes to appointing top judges and how the post of judges has been historically monopolised by the male community, there is also a disproportionate representation on the lines of caste. Yet, this blatant fact of caste based discrimination in appointment of judges in higher judiciary is seldom talked about. Isn’t it equally necessary to correct the caste discrimination and imbalance, also the result of “centuries of suppression”, and demand reservations for not only women, but also the Dalits, Adivasis and other marginalised communities in the judiciary, especially at its higher echelons, keeping in view the fact that similar reservations for SCs, STs and OBCs are constitutionally applicable to all other public offices in the country including the legistatures? The Dalit and Ambedkarite activists and organisations have been demanding this for years, arguing that if caste reservations can be applied to Parliament which makes laws, why should the Supreme Court which interprets those laws, disallow it, in its own case?

It is a well-established fact that Brahmins have dominated judgeship at the highest level. Of course, other upper caste judges were also appointed, but no single caste had such a high percentage of representation as the Brahmins. In 1988, there were seventeen judges at the Supreme Court and nine of them were Brahmins. This gave the Supreme Court more than 50% Brahmin representation. Until 1980, there was no judge from the SC or OBC community. Justice A Vardarajan was the first person from the SC community to be appointment as a judge of the Supreme Court in 1980. This was 30 years after independence! So far, only one person from the Dalit community — Justice K.G Balakrishnan has become the Chief Justice of India since Independence.

Similarly, till 1980, there was no representation from the OBC. The first judge appointed from the OBC community to the Supreme Court was Justice SR Pandian. There has been no judge from the Scheduled Tribes (ST) community in the Supreme Court till date. Even amongst minority religions, persons of upper class/caste from those religions have been appointed.

Women with privileged backgrounds and upper castes dominate the few positions that come their way. With the recent appointment of three women Judges, all the four women judges currently in the Supreme Court now belong to upper castes. Also, Justice BV Nagarathna, who may become the first woman Chief Justice of India in 2027, is the daughter of retired CJI ES Venkataramaiah, who was also a Brahmin.

In another historic first, one judge, each from both the Scheduled Caste and the OBC — Justice C.T. Sivakumar and Justice M.M. Sundaresh, respectively, were also among the nine judges sworn in on September 1, 2021. With Justice Sivakumar’s appointment, the Supreme Court will now have two sitting judges from the Scheduled Caste community (6 percent representation) after a gap of two decades. Still the top court has not had a single Dalit woman judge, and it is unlikely that India will ever have a Dalit woman Chief Justice.

So, a customary glance at available records makes it clear that the downtrodden and the marginalised, historically, do not have proper representation at the apex court. There seems to be a clear bias in appointment decisions, either by commission or omission. Besides, apart from one belonging to the upper caste and being a male, there cannot be a denial of the existence of other ‘known but hidden’ factors such as political connections, coming from legal/judicial families etc. as well, that influences decisions of appointment of judges to the Supreme Court.

Gender and caste bias of the judiciary

It is argued that the role of the judiciary is to make decisions in accordance with the letter of the law, but legislation allows enough discretion to the judges to exercise their independent reasoning and deliver justice in individual cases. It is in exercising this discretion that judges are influenced by their political views and personal experiences. A few examples will illustrate the point.

1. Unbecoming of Indian women to sleep after rape: In a controversial judgement, Justice Krishna S. Dixit of the Karnataka High Court, while granting a pre-arrest bail to a man accused of rape, has noted that it was “unbecoming of an Indian woman” to sleep after she is “ravished”. The judge observed that the woman’s claim of having slept “after the perpetration of the act” because she was tired was “unbecoming of an Indian woman”. “That is not the way our women react when they are ravished,” the judge said in his order. The woman’s failure to explain why she went to her office at 11 pm on the day of the alleged crime and did not object to having “drinks” with the accused was also cited as one of the reasons for granting bail.

2. Bizarre Bail condition: The Madhya Pradesh High Court in a case of molestation had granted bail to the accused on the condition that he would get a rakhi tied on his wrist by the victim. The accused was asked to go with his wife to the complainant woman’s house with a box of sweets to get the rakhi tied.

Advocate Aparna Bhat and six women lawyers moved a petition before the Supreme Court to expunge the High Court’s direction, complaining that “there is a strong likelihood that such observations and directions may result in normalising what is essentially a crime and has been recognized to be so by the law”. After hearing this petition, the Supreme Court set aside this bizarre judgment of the Madhya Pradesh High Court

Besides the above two examples, there are numerous such instances of gender insensitivity and stereotypical patriarchal orders that can be cited including the comment by former CJI S. A. Bobde who had asked a government employee if he would marry the woman who had accused him of repeatedly raping her. On the same day, while hearing a marital rape case, he had said: “When two people are living as husband and wife, however brutal the husband is, can the act of sexual intercourse between them be called rape?”

The most well-known case of glaring caste and gender bias of the judiciary is that of Bhanwari Devi, a dalit woman (potter community) — whose rapists (all belonging to upper castes) were acquitted by a Jaipur district court judge with the reasoning that “an upper-caste man could not have defiled himself by raping a lower-caste woman.”

Bhanwari’s case, and in particular the manner in which it was handled by the police and the courts, is not an isolated incident. It mirrors the complex nexus between the caste system, legal system, patriarchy and the state. It also indicates how the caste system has the potential to influence the judge’s personal perceptions and utterly exposed the atmosphere of prejudice that women like Bhanwari Devi face—both as Dalit and as woman. These biases are pervasive all the way to the top of the legal system. Even after decades, Bhanwari Devi has not got justice, till today, despite all her efforts and struggle.

The courts which often take pride in taking suo motu cognizance in many instances of violation of fundamental rights, has rarely taken cognizance on its own when a Dalit has been killed for marrying outside his or her caste or when a Dalit dies while being forced to clean sewers due to negligence and apathy on the part of government authorities.

So, in a society where a person’s position is determined and his views influenced by the hierarchies of gender, caste, religion, class and sexuality, and their intersectionality, merely introducing gender-based reservation in higher judiciary, is not going to adequately change its monolithic, homogenous upper caste/class view and bias. This is reflected time and again, in the low rates of conviction for crimes committed against members of the Scheduled Caste and Scheduled Tribe communities, in continuous dilution of the provisions of the Prevention of Atrocities (Scheduled Caste and Scheduled Tribes) Act 1989, in patriarchal, casteist classist observations and even judgements by the higher courts.

The predominantly upper-caste and privileged-class judiciary seldom understand the everyday violence and systemic oppression meted out to lower caste communities and the downtroddens. This necessarily requires the composition of the judiciary to adequately represent the different sections of the Indian society, particularly the dalits, adivasis and religious minorities.

While representation of the marginalised and invisibilized sections and communities through reservation or any other means, in itself, in state institutions including higher judiciary, won’t fundamentally alter the inherently exploitative character of the Indian state controlled by the capitalist class, nevertheless, it has an important role to play in the long and protracted struggle to establish a truly democratic and just society.

(The views expressed are author’s own)