1) Bar & Bias
GS2: Issues related to Judiciary
Context:
- The author talks about the need for more women representation at the bar.
Editorial Insights:
What’s the matter?
- Recently at the oath ceremony of the 3 new women judges to the Supreme Court, the CJI while lauding the event, stressed the need for at least 50% women representation at all levels of the judiciary.
- Though the bench has been slowly making space for women’s representation, it is the bar that needs more women representation.
State of Women representation in the Bar:
- There is an abysmal lack of data/literature on women in litigation mainly commercial litigation.
- According to the 2020 Vidhi Survey, showcased appalling levels of women representation where the number of women in litigation was maximum in Kerala at 28.57%, while in Madras & Delhi it is 10.5% & 22.47% respectively.
- This stresses the need to examine women’s representation across the bar.
- As of 2012, only 5 out of the 294 senior advocates in the Supreme Court of India were women an abysmal 2%.
- At the same time, women in corporate offices & law firms fared better in terms of equality, owing to the gender-neutral trajectories in elite law firms.
- While equality in any space is encouraged but this hasn’t been replicated in the courtroom.
- Reasons/Factor that aid low representation of women across the Bar:
- Pre-decided pay scale:
- According to a study, it was found that clients choose female lawyers because of low fees.
- Therefore with no law governing the pay scale, independent women legal practitioners are forced to accept much lower remuneration which makes it difficult to sustain.
- According to a study, it was found that clients choose female lawyers because of low fees.
- Common conception is that litigation offers greater flexibility because of no fixed working hours & can take advantage of court vacations.
- This flexibility results in a woman’s litigation career being trivialized & further pushes women out of the litigation space.
- At the same time in India, women govt pleaders are extremely rare because though there is a reservation for women across several public offices, there is no such thing for the govt pleader or a public prosecutor position.
- Lack of crèche facility in courts,
- Unusable restrooms,
- Non-recognition of maternity leaves,
- Further, most women practicing in the courtroom are pigeonholed into practicing certain areas such as family/women’s rights law.
- Another example of Sexism driven psychology is that women are seen as non-confrontational care-oriented lawyers who will be better at understanding the client from an emotional standpoint but never from an economic/financial standpoint.
- This presumed character for decades is encouraged as undesirable in litigation mainly in commercial litigations.
- This resulted in institutionalized sexism where it is now seen women don’t belong in the highly remunerative commercial dispute resolution space.
- Further, the above perception is fortified by the fact that most women who are quoted as super lawyers/ featured in the coveted 30 under 30 lists are never commercial litigators, they are who have fought for women’s rights/ women in corporate law offices.
Actions that are needed now:
- Urgently govt needed to conduct surveys across the courts to understand & improve the representation of women across the bench.
- Media houses need to feature, acknowledge & appreciate women in the commercial litigation space.
- Govt along with CJI should focus on elevating more women to the bench, which will automatically lead more women in the bar.
- Improving facilities for women mainly crèche facilities, toilets, etc.
Additional Information regarding Gender Inequality in the Judiciary:
Editorial Insights:
Need for Greater Women Representation in Judiciary:
- Currently, SC is left with only 3 woman judge.
- Over the years collegium has failed to take timely steps to elevate more women judges in the SC.
- In the 71 years of SC history, there have been only 8 women judges& fact that there has never been a woman CJI.
- Increasing Gender insensitive/ discriminated judgments in the higher judiciary against women.
- Recent controversial judgment of MP high court ordering Rape accused man to get rakhi tied from the victim.
- To attain a more balanced & empathetic approach in cases involving sexual violence the need is for improving the representation of women in the judiciary.
- The low proportion of women judges in the highest courts is a problem for every country because it breeds double standards as a institute of safeguarding equality & deinstitutionalizing discrimination in its representation.
Suppression of Seniority vs Women Representation:
- To have women CJI & more Women judges in SC, Collegium has to suppress the order of seniority which has been the basis for judges elevation.
- This suppression in a bid to woman in the highest judicial office cannot be overlooked.
- Suppression itself is perceived as a threat to the independence of the judiciary.
- Seniority coupled with merit is the sacrosanct criteria for promotion in the judiciary.
- History is replete with the instances when meritorious judges were superseded.
Further Ahead:
It is very crucial & high time for India to have Woman CJI & more Women judges because “Instrumentally having a more diverse judiciary ensures fair consideration of diverse perspectives that instills a high degree of Public Confidence”. But this representation has to be balanced with decadal judicial conventions without suppressing the seniority.
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