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.
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