The elephant in the room was finally out in the open last week with a five-judge verdict that said triple talaq was unconstitutional and un-Islamic. While much was made of the fact that the five judges represented five different faiths, there was less comment that not one among them was a woman.
In the same week, nine judges in a separate judgement, perhaps the most significant of our times, declared that privacy is a fundamental right. Not one of the nine was a woman.
There is one woman judge among the 25 Supreme Court judges at present: Justice R. Banumathi, a former chief justice of the Jharkhand high court who was elevated to the Supreme Court in August 2014 and was, earlier this year, part of the bench that confirmed the death sentence on the men convicted in the 16 December 2012 “Nirbhaya” gang-rape case.
“I can’t help feeling a degree of sadness that the sole woman judge of the Supreme Court was not a part of either verdict last week, more so when women put up such fierce arguments in both cases,” says senior advocate Rebecca John.
“The question is not whether Justice Banumathi should have been on either of the benches,” says Justice Prabha Sridevan, a former judge of the Madras high court. “The problem is far more deeply ingrained. It is the fact that there is just one woman judge and that this does not seem to matter to anyone.”
The lack of gender diversity in the higher judiciary has been commented upon in the past. Of the 229 judges appointed to the Supreme Court since 1950, when it was established, only six have been women. It took the court 39 years to get its first woman judge, Fathima Beevi, who was appointed in 1989. It would take another seven years for the appointment of the second woman judge, Sujata V. Manohar, in 1994. In the 23 years since, only four more women have been appointed Supreme Court judges.
When five judges were appointed to the Supreme Court in February, not one was a woman, even though there were two women chief justices, G. Rohini in Delhi (who has since retired) and Manjula Chellur in Bombay. “Women are available but they are just not on the horizon of those who appoint judges,” says senior advocate Indira Jaising. In any case, adds John, judges can also be appointed directly from a pool of talented women practising at the bar: “The Supreme Court has done itself no favours by not considering the women who are excelling in the bar.”
It’s a lack of will, says Justice Sridevan. “This sort of gender bias is deeply ingrained. The fact that you don’t even think you need more women judges is part of that bias.”
Women judges need not rule favourably on issues of gender. Judgements, it is presumed, are made without consideration of caste, community or gender. I have argued in an earlier Mint column (Balancing The Scales, May) that some of the past judgements upholding a woman’s right to equality and dignity over what is permitted under personal law have come from men—as has the recent triple talaq verdict.
Yet it is ironic that an institution devoted to dispensing justice and upholding the principles of equality enshrined in the Constitution should have such an obvious lack of diversity and demonstrate such an obvious lack of concern to plug that gap. If justice must be seen to be done, then diversity must also be on display.
Besides addressing an obvious gender gap, more women judges would bring a different experience to the bench, says Jaising. Justice Sridevan agrees, “A woman judge will understand the realities of a woman’s life better.” At a time when civil society and women themselves are increasingly vocal about their rights, it might not be a bad time for the courts to start setting their own house in order.
The apex court will soon be deciding on other petitions filed by women. Can women worshippers be barred from the Sabarimala temple because they are considered “impure” due to menstruation? Does a Parsi woman lose her right to faith when she marries outside her religion?
The Supreme Court has a sanctioned strength of 31 judges; it currently has only 25. How will it plug the vacancies? In 2015, the Supreme Court Women’s Lawyers Association brought the issue of increasing the number of women judges to the notice of a Constitution bench. It pointed out that India was a signatory to Convention on the Elimination of all Forms of Discrimination against Women, which aimed to “remove obstacles of women’s public participation in all spheres of public and private lives”.
In addition to the two path-breaking verdicts of last week, the Supreme Court has a new chief justice. Whether there will be an urgent redressal of a historic imbalance remains to be seen.
—By Namita Bhandare
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Power of six
Justice M Fathima Beevi (1989-92)
Justice M. Fathima Beevi was the first woman to be appointed to the Supreme Court. This was 39 years after the top court was established. Born in Kerala, she had an illustrious career chart, starting as an advocate who practised in Kerala for eight years before being appointed judge in the Kerala high court in 1983. She retired from the Supreme Court in 1992, and went on to serve as the governor of Tamil Nadu. During her tenure as governor, she was criticized for the appointment of J. Jayalalithaa, then embroiled in a corruption case, as chief minister. According to senior advocate Dushyant Dave, Justice Beevi was as courteous as she was balanced, always well prepared with the case history as she sat at the bench. He attributes the paucity of women in the higher judiciary to bias at both the bar and the bench. “We are still a feudal country, which is unlikely to change anytime soon.”
Justice Sujata V Manohar (1994-99)
She may have been the second woman judge of the Supreme Court but she was the first woman chief judge and the first woman chief justice of the Bombay high court. Having practised as an advocate for almost 20 years, she was known for taking up public interest litigation and doing pro bono work. In her stint at the apex court, she was on the three-judge bench that dealt with the issue of sexual harassment at the workplace and paved the way for the Vishaka Guidelines.
Justice R Banumathi (2014-20)
More than halfway into her tenure as a Supreme Court judge, she is currently the only sitting woman judge. She was part of the bench that passed the death sentence in the 16 December Nirbhaya gang-rape case. Penning a separate judgement, for which she was lauded, she said that the case came within the category of “rarest of rare”, where the question of any other punishment is “unquestionably foreclosed”. She added that if at all there was a case warranting death sentence, it was this. Amongst the bar, Justice Banumathi is known to be a low-key judge who is focused on the brief and is guided strictly by the law. If there is a feminist side to her, she does not put it on display.
Justice Ranjana Prakash Desai (2011-14 )
As a lawyer, Desai leaned towards criminal matters before being appointed special public prosecutor for preventive detention matters in 1986. With years of expertise in criminal law, she served as one of the judges who upheld the death sentence awarded to Ajmal Kasab, the lone surviving terrorist of the Mumbai attacks of 26 November 2008. She was also part of the bench that held that registration of FIR in cognizable offences was mandatory. In a unique instance, she, along with Justice Gyan Sudha Misra, formed an “all women bench” which heard matters for the day in April 2013 due to non-availability of another judge who was supposed to be part of the bench.
Justice Ruma Pal (2000-06)
With a six-year stint at the Supreme Court, she was a strong legal personality who was apparently also considered for the post of chief justice of India. She addressed women-related issues, stressing, for example, on cruelty and mental cruelty being grounds for divorce. As a former judge, she has voiced concerns about judicial accountability and the lack of a mechanism for this. She developed a reputation for speaking her mind fearlessly even if it involved criticizing her own colleagues. She was part of a three-judge collegium that refused an extension to a Madras high court judge on grounds of corruption. She pitched for greater transparency in the appointment of judges. At a memorial lecture, she slammed the higher judiciary for its “seven sins”, including arrogance, nepotism, and turning a blind eye to a colleague’s injudicious conduct.
Justice Gyan Sudha Misra (2010-14)
Having served as the chief justice of the Jharkhand high court for almost two years, her tenure at the apex court saw four eventful years during which she was part of various landmark cases. She was part of the bench that rolled out the initial clean-up of the Board of Control for Cricket in India by barring Narayanaswami Srinivasan from contesting elections to the board in the wake of a spot-fixing scandal. She was also lauded for drawing a distinction between active and passive euthanasia in the case of Aruna Shanbaug, who had been kept on life support following a sexual assault in 1973. Despite her achievements, she drew criticism for being perpetually late to court.
—By Priyanka Mittal
