Friday, July 13, 2012

India's Higher Judiciary: A Male Bastion

In many ways it is not important to discuss who was appointed as the new President of the UK Supreme Court today. It is certainly more important to discuss who wasn't. The fact that Baroness Hale was one of the three shortlisted candidates but yet was not chosen as President will bring back into sharp focus the massive gender gap in judicial appointments in the UK. Baroness Hale was the only woman ever to be appointed as a Law Lord to the House of Lords and remains the only woman judge on the UK Supreme Court in its short history. An outspoken supporter of gender diversity in the judiciary, Baroness Hale has emphasised the role of gender in her judgments and perhaps never more forcefully than in her dissent in Radmacher v. Granatinowhere eight (male) judges chose to uphold the enforceability of pre-nuptial agreements. She has also spoken out against her colleagues being members of the gentlemen-only Garrick Club in London. 


No Semblance of Diversity in the Indian Higher Judiciary
Gender diversity in judicial appointments in India has not received any serious attention despite the abysmal gender ratio. While the gender gap in the Supreme Court is quite visible, the situation in the High Courts is just as shocking. Thanks to some timely help from Shreya Rastogi (V Year, NLU Delhi), I was able to put together the latest numbers on the gender ratio in the various High Courts. It is a simple compilation of the latest information available on the websites of various High Courts and the document can be accessed here. Only 7.9% of the total number of High Court judges are women and the lack of urgency in addressing this problem is perplexing. Or perhaps, before we address the problem, we need to take a more fundamental step and acknowledge the scale and intensity of the problem.  Gender diversity in judicial appointments must become one of the top priorities while discussing judicial reform. 


Why Gender Diversity in the Judiciary?
Will women judges adjudicate cases differently from male judges? I don't think a strong argument can be made that they certainly will on all situations. It also runs into the strong objection based on essentialising gender and that somehow there could be this one single way in which women would adjudicate cases. This expectation that women wil adjudicate "differently" is an unfair burden and that cannot be strongest argument for demanding gender diversity in judicial appointments.

I would agree with the argument that Anne Philips makes in the context of gender diversity in legislatures in her book Politics of Presence. The justification for gender diversity in the judiciary must be rooted in concerns of legitimacy of the institution and combating what is clearly a case of structural discrimination. The push for gender diversity in the judiciary should not be based on the expectation of "feminist" judgments.

The argument might well be based on the positive impact of having women judges from a process perspective. The environment it would create for women bringing cases to the courts and for women lawyers appearing in court is critical and it would make an important contribution to establishing courts as inclusive spaces. Achieving gender diversity in judicial appointments is not just a question of tweaking the appointment procedure. It is very much about reforming the manner in which gender plays out in the Bar in terms of employment opportunities, the work culture, creation of networks of privilege, conditions at the workplace etc. The Bar must reflect on the role it has played in creating the gender deficit in the Indian judiciary, acknowledge that its structures and processes do not facilitate the bridging of the gender gap and take steps to ensure that success at the Bar is possible just as much for women as it is for men.

I am aware of the argument that we could have this discussion about other factors of diversity as well and that brings with its own complexities. However, that should not prevent us from engaging with such a stark case of exclusion, especially in an institution that is meant to safeguard constitutional values.

The Constitution Committee appointed by the House of Lords to look into 'Judicial Appointments' submitted its report in March 2012. The Committee addressed the issue of diversity in judicial appointments in Chapter Three.

5 comments:

Aditya Swarup said...

There is another aspect that ought to be mentioned about Baroness Hale apart from her gender. She is the only one among the Law Lords directly to be appointed from academia.

Whether that gives her a better perspective of the law as a judge is something to ponder about. There was a rumour floating around that Upendra Baxi once was offered the post. Don't know if it is true.

H said...

1. Is there any research/evidence which shows that women find it tough to bring cases/women lawyers find it tough to work, because of the lack of women on the bench?

2. Are you suggesting that for a public institution to be legitimate it must necessarily be representative of the society in which it operates? If so, on what all parameters should it be representative? Gender, religion, caste, region, age, economic background, educational background, sexuality, language, political ideology, etc. etc.? How do you decide which of these identities should be given preference if an attempt is made to make a institution more legitimate (if it is assumed that an institution must be representative in order to be legitimate)?

H

Anup Surendranath said...

@Aditya -- Yes, thanks for pointing that out. Though she did have a small part-time practice, undoubtedly her first judicial appointment on to the High Court was on the basis of her academic credentials and work in the Law Commission. In other jurisdictions, Chief Justice Beverly McLachlin of the Canadian Supreme Court (Canada's first woman Chief Justice) comes to mind but I am not sure if she is the only academic on the Canadian Supreme Court currently. Even though now retired, Justice Kate O'Regan of the South African Constitutional Court comes to mind as a female academic who was directly appointed to an apex court -- unlike both Baroness Hale and Chief Justice McLachlin, both of whom held judicial positions prior to their elevation.

@H -- thanks for the questions. In response:
1. I am not aware of any empirical research on this point but I must admit that I haven't looked for it either. Having said that, judges like Justice Ginsburg, Justice Claire L'Heureux Dube and Baroness Hale have spoken about the messages that a male dominated Court sends out.

2. I guess Hannah Pitkin ('Concept of Representation') would say that the answer is an emphatic 'No'!
If I were to answer this question with a Rawlsian veil of ignorance, unaware of my natural abilities, class, gender, race, etc, I would also say 'no' (perhaps a little less emphatically than Pitkin!). However, if the question is -- After 62 years of the judiciary functioning in independent India, does less than 8% women in the Indian higher judiciary justify targeted measures to improve gender diversity? My answer would be 'yes'.

Essentially, I do not see a normative commitment to the question of whether all public institutions should "mirror" the composition of the society they serve as being necessary. I'd rather approach the issue from the other end. 8% women on India's higher judiciary is compelling evidence of the structural discrimination that exists in and it is legitimate to remedy that discrimination on the basis of gender.

I acknowledge the problem with 'categories' -- what does the category 'woman' entail? Do we mean a Dalit woman? an educated woman? a single woman? But I think those are subsequent battles, but battles nonetheless. The difficulty of those battles, I believe, should not prevent us from taking the first steps towards addressing obvious situations of status based discrimination.

kumar said...

I completely disagree with the above argument. It is for the same reason that reservation for women in the parliament had come into light. The question would be how many women are enrolled as advocates in the country or how many women choose to become politicians. This debate will in fact put another reservation in the judiciary. I will quote an illustration - this I am telling you through the words of a first hand source from karnataka high court -- Sometimes it so happens that there is no competent person available to take the position of a judge, in that case "anybody" from that particular category (SC/ST) becomes a judge and not a competent person. Hence, my point is that encouragement should be at a lower level. Women should be encouraged to get into these fields; And yes, the times are changing- women are getting into almost all sectors of the society. Women are no more downtrodden. So this debate should go towards competency rather than gender else it is farce.

H said...

Dear Anup,

Thanks for your responses.

I have a feeling that we might have to agree to disagree.

To my mind, targeted measures favouring a particular group of people may only be justified if there is reasonable evidence of discrimination. One can't work the other way around and assume that just because a particular group is not represented it means that that group has been structurally discriminated against.There might be other reasons why a particular group is not represented in an institution.

Second, I do not think one can push the other issue on the logic that "lets address this "obvious" case discrimination first, and then we will think of other categories later". The moment you have such targeted measures, other categories of people have a right to demand representation on the same logic. Indeed, in India there have been demands to have caste based reservation in the judiciary. In such a situation, how will you justify the first set of measures, if you are not sure of what categories should be represented in the first place.

At the risk of being labelled absurd, let me put forth the following hypothetical question:

A survey is done which shows that the judiciary is heavily dominated by people above a certain height. Does that imply that everyone else has been structurally discriminated against? Does that imply that we should have targeted measures which ensure that people below that height are represented in the judiciary?

Regards,

Harsh