tag:blogger.com,1999:blog-15602189.post249371180229354032..comments2023-09-21T16:17:51.838+05:30Comments on Law and Other Things: India's Higher Judiciary: A Male BastionAnonymoushttp://www.blogger.com/profile/09348738084817273397noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-15602189.post-68392571828806808372012-07-17T18:31:27.301+05:302012-07-17T18:31:27.301+05:30Dear Anup,
Thanks for your responses.
I have a f...Dear Anup,<br /><br />Thanks for your responses.<br /><br />I have a feeling that we might have to agree to disagree.<br /><br />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.<br /><br />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.<br /><br />At the risk of being labelled absurd, let me put forth the following hypothetical question:<br /><br />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? <br /><br />Regards,<br /><br />HarshHhttps://www.blogger.com/profile/02690934085346468210noreply@blogger.comtag:blogger.com,1999:blog-15602189.post-4615414871009885512012-07-17T11:26:00.528+05:302012-07-17T11:26:00.528+05:30I completely disagree with the above argument. It ...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.kumarhttps://www.blogger.com/profile/00781390714865710068noreply@blogger.comtag:blogger.com,1999:blog-15602189.post-79018684140419838452012-07-17T03:16:42.569+05:302012-07-17T03:16:42.569+05:30@Aditya -- Yes, thanks for pointing that out. Thou...@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.<br /><br />@H -- thanks for the questions. In response:<br />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. <br /><br />2. I guess Hannah Pitkin ('Concept of Representation') would say that the answer is an emphatic 'No'! <br />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'.<br /><br />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. <br /><br />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.Anup Surendranathhttps://www.blogger.com/profile/05624246434873983858noreply@blogger.comtag:blogger.com,1999:blog-15602189.post-35048779427131904252012-07-16T01:27:17.373+05:302012-07-16T01:27:17.373+05:301. Is there any research/evidence which shows that...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? <br /><br />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)? <br /><br />HHhttps://www.blogger.com/profile/02690934085346468210noreply@blogger.comtag:blogger.com,1999:blog-15602189.post-85130026490885122252012-07-13T15:08:26.514+05:302012-07-13T15:08:26.514+05:30There is another aspect that ought to be mentioned...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. <br /><br />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.Aditya Swaruphttps://www.blogger.com/profile/08603274694061214050noreply@blogger.com