Gender Sensitization and Representation of Women in Judiciary

“A woman cannot be herself in the society of the present day, which is an exclusively masculine society, with laws framed by men and with a judicial system that judges feminine conduct from a masculine point of view.”

– Henrik Ibsen

This excerpt from a 19^th century play titled “A Doll’s House” still echos to today’s social and cultural milieu and it is even more pronounced in Indian judiciary where there the number of female judges is alarmingly low. Across the 26 High Courts (HC) in India, there are only 82 female judges out of the total 1,079 judges and only 1 female judge (Indira Banerjee J.) in the Supreme Court (SC) as opposed to 27 male judges. Banerjee J. is just one of 8 women judges who have been appointed to the SC since its inception with Justice Fathima Beevi being the first SC judge who was appointed in 1989, 40 years after SC’s inception and the other 6 judges being Sujatha Manohar J., Ruma Pal J., Gyan Sudha Misra J. , Ranjana Prakash Desai J., Banumathi J. and Indu Malhotra J. Moreover, just two female judges – Justice Ruma Pal and Justice R. Banumathi, have been a part of the SC’s collegium, a powerful body responsible for appointment judges to the HCs.

When we take a glance at the SC Bar, there are only 17 female Senior Advocates designated by the apex court, as opposed to 403 men and in the Delhi HC, there are only 8 women designated as seniors while 229 men have been conferred with the prestigious tag. In the Bombay HC, there are 157 male senior advocates and only 6 female senior advocates. If these statistics still continue, witnessing the appointment of a woman as the Chief Justice of India seems like a pipe dream.

Evidently, there is a huge disparity in the number of female judges being appointed as opposed to their male counterparts and the ramifications of this disparity are evident from the insensitive remarks and observations made by various Indian judges holding coveted constitutional offices as well as lower courts over the years especially in cases involving sexual violence.

Recently, in the Tarun Tejpal^[1] case, Additional Sessions Judge Kshama Joshi observed in the 527-page judgment “if the prosecutrix [the female complainant] had recently again been sexually assaulted by the accused and was terrified of him and not in a proper state of mind, why would she report to the accused and disclose to him her location.” Judge Joshi said the woman exhibited “unnatural” behaviour^[2] by remaining in touch with Tejpal despite alleged incidents of sexual assault earlier. This controversial ruling triggered a debate on what constitutes an ideal behaviour for a rape survivor and the Solicitor General of India hastily appealed to the HC objecting to the acquittal by appealing “as per this judgement, any victim of sexual assault has to exhibit her trauma, and unless she does that her testimony cannot be believed” and the Bombay HC ultimately redacted that part from the judgment.

Other such controversial observations and remarks include:

“Upper caste man cannot rape a lower caste woman” – Rajasthan Court^{^[3]}

In 1992, Bhanwari Devi, social-worker from Bhateri, Rajasthan alleged that she was raped by five men belonging to the upper caste for prohibiting child marriages and the the trial court in 1995 dismissed her complaint by reasoning “an upper-caste man could not have defiled himself by raping a lower-caste woman.” The judge also said that village head cannot rape, men of 60-70 years of age cannot rape, and a man cannot rape in front of his own relative as two accused were related as uncle and nephew.

“Not the way our women react when ravished” – Karnataka High Court^[4]

Granting pre-arrest bail to a man accused of rape, Karnataka HC’s Justice Krishna S. Dixit observed, “nothing is mentioned by the complainant as to why she went to her office at night i.e. 11.00 p.m.; she has also not objected to consuming drinks with the petitioner and allowing him to stay with her till morning.” Justice Dixit also noted that “the explanation offered by the complainant that after the perpetration of the act, she was tired and fell asleep, is unbecoming of an Indian woman. That is not the way our women react when they are ravished.” These remarks were later expunged vide court order.

“No may not necessarily mean no” – Delhi High Court^{^[5]}

Delhi HC’s Justice Ashutosh Kumar said, “in an act of passion, actuated by libido, there could be myriad circumstances which can surround a consent and it may not necessarily always mean yes in case of yes or no in case of no.” This statement in particular blurs the lines as to what is considered consensual and non-consensual sexual activity, setting a dangerous precedent and laying a dangerous silo in Indian jurisprudence.

“Rakhi for bail” – Madhya Pradesh High Court^{^[6]}

Granting anticipatory bail to a married man, the Madhya Pradesh HC ordered the following: “the applicant along with his wife shall visit the house of the complainant with Rakhi thread/ band on 3rd August 2020 at 11:00 a.m. with a box of sweets and request the complainant…to tie the Rakhi band to him with the promise to protect her to the best of his ability for all times to come…”

Gender diversification

It has been a common occurrence to shame victims or survivors of sexual violence based on their history or pre-assault and post-assault behaviour. This just goes on to show that there is a dire need for a gender-diverse bench and gender sensitisation training in our judicial system. Studies show that having even one woman on a three-judge panel affects the entire panel’s decision-making and its outcome in gender discrimination cases.^[7] A woman’s perspective could add much value to the decision making process of such cases. Having more women judges makes the system much more approachable for women to report crimes. While another study stated that personal values, experiences and many other non-legal factors influence judicial decisions.^[8] This indicates that there isn’t just a need for woman judges but judges from different backgrounds and the more diverse our judiciary is, the stronger and equitable it gets.

What can be done to improve this situation?

In an affidavit^[9] submitted by the Attorney General, K.K. Venugopal, has suggested guidelines for setting bail conditions, training and recruitment of judges, and induction of women as senior advocates as mentioned below.

BAIL CONDITIONS

Bail conditions should not mandate or even permit contact between the accused and the victim.
- Bail conditions must seek to protect the complainant from any harassment by the accused.
- Where considered necessary, the complainant/prosecutrix may be heard on whether there is any particular circumstance that may require additional conditions for her protection.
- Wherever bail is granted, the complainant may immediately be informed that the accused has been granted bail.
- Bail conditions must be free from stereotypical or patriarchal notions on women and their place in society, and must strictly be in accordance with the requirements of the CrPC.
- The Courts while adjudicating a case, should not suggest or entertain any notions (or encourage any step) towards compromises between the prosecutrix and the accused to get married, as it is beyond their powers and jurisdiction.

TRAINING

To achieve the goal of gender justice, it is imperative that our judicial officers, judges, and members of the bar (including specifically public prosecutors), are aware of stereotypes, bias, and other irrational tendencies that have to be shunned in the process of judicial adjudication. Such understanding would help foster a judicial system that guarantees the right of women to equal access to fair and gender-sensitive court proceedings, mediation processes, adjudication and enforcement of judgments.

Three aspects which are important to be born in mind to facilitate a more gender-sensitive approach are to train judges to exercise their discretion by:

Placing themselves in the shoes of the victim of sexual violence
- Assessing the crime as if the same had been committed on a member of their own family.
- Avoiding the use of gender-based stereotypes while handling cases of sexual violence.

Venugopal advised that gender sensitization seminars be included in the National and State Judicial Academies’ programmes. Professor N. R. Madhava Menon, while working as a consultant to the First National Judicial Pay Commission, Government of India (1999), had made a proposal[10] for gender sensitization of judicial officers, and recommended a course for judicial academies and training institutions. The Ministry of Women and Child Development has already been undertaking training and capacity building workshops for the ‘Gender Sensitization of Judicial Personnel’. Over 15 such training workshops have already been conducted.[11]

EDUCATION

Additionally, the training of judges at all levels of the judicial hierarchy in aspects of gender sensitization can be conducted at regular intervals by the National Judicial Academy and the State Judicial Academies mandatorily.

It must be borne in mind that any directions towards gender sensitization would have to include judges at all levels of the judiciary and this is because all judges come from the general public (either through examinations or the basis of collegium recommendations), and therefore may hold the same stereotypes and may exhibit the same biases as the rest of the population. This would mean that education in this respect must start at the primary level – law colleges, and then find its way upward to be a part of continuing legal education for all.

Currently, there is no course on gender that is taught in law schools compulsorily. Certain law schools have the subject either as a specialization or as an elective.

Equally, the All India Bar Examination does not contain even a single question or section relating to gender sensitization and The Bar Council of India may take necessary steps on this front. The next phase at which gender sensitization must be included is at the stage of exams to the judiciary – the Provincial Civil Services (Judicial) – PCS- J Exams. In addition to training on judgments relating to women and the law, training on biases, stereotypes, approaches to be taken and avoided, and the like may be included. A detailed curriculum may be prepared with the help of subject matter experts by each HC.

RECRUITMENT/PROMOTION

Improving the representation of women in the judiciary could also go a long way towards a more balanced and empathetic approach in cases involving sexual violence.

To remedy this, this Court must:

Direct collection of data to determine the number of women judges in the lower judiciary
1. Direct collection of data to determine the number of women judges in tribunals
2. Direct collection of data to determine the number of senior designates by all HCs, year wise.
3. Ensure greater representation of women at all levels of the judiciary, including the SC.

This initiative must come from the SC itself, considering that the power of appointment rests almost exclusively with the SC Collegium and must set a goal to achieve at least 50% representation of women in all of judiciary and its ancillary positions.

LEGAL FRAMEWORK

On 6th August 2013, the Gender Sensitization & Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013 were published pursuant to the Vishaka judgment. In terms of the regulations, the Gender Sensitization and Internal Complaints Committee^[12] (hereinafter ‘GSICC’) of the SC was constituted, whose functions include “to increase awareness about gender sensitization for the Supreme Court community.” Lastly, in the interest of hearing viewpoints from affected persons and domain experts, the Court should consider issuing notice in this matter to the GSICC so that their inputs can also be heard, and appoint a female lawyer who has been active in this area, as amicus curiae to assist the Court.

CONCLUSION

The judiciary checks the excess power of the legislature and executive and interprets the law and it is required to be neutral in order to give an upright and fair judgement but that isn’t the case as the judiciary has visible shades of patriarchy just like the society at large. This patriarchy is reflected in the insensitive remarks, judgements and observations made by the judges, even in cases involving sexual violence where they are required to deal with the matter sensitively and these remarks give immunity to such perpetrators, shielding them from their inhumane actions. The dire need for a gender diverse bench arises due to the fact that the judiciary repeatedly and miserably failed to acknowledge the rights of women, especially in cases of sexual violence. It is during these times that having more female judges makes an immense difference by providing a female perspective and inducts empathy while dealing with such cases. What our judiciary needs right now is structural change, from educating law students to training judicial officers on gender sensitivity and increasing the representation of women. If executed properly, gender diversity, gender sensitization and representation of women in the judiciary have the potential to change the course of our judicial system and the very society in progressive ways or in the least make the judiciary a bulwark against constant sexism and a safe space for women.

^[1]State v. Tarunjit Tejpal in the Court of District & Sessions at Panaji (Before Kshama M. Joshi, J.) CR. No. GANG01000854/2014

^[2] https://www.indiatoday.in/india/story/tarun-tejpal-rape-case-goa-court-1806993-2021-05-26

^{^[3]} (1997) 6 SCC 241 : 1997 SCC (Cri) 932

^[4] http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/334979/1/CRLP2427-20-22-06-2020.pdf page 4, c.

^{^[5]} Mahmood Farooqui v. State, CRL.A. 944/2016

^{^[6]} Aparna Bhat v. State of Madhya Pradesh, 2021 SCC OnLine SC 230

^[7] https://www.american.edu/spa/publicpurpose/upload/panel-composition-on-sex-discrimination-case-outcomes-2.pdf

^[8] https://orca.cf.ac.uk/90807/1/The%20Influence%20of%20Personal%20Values%20on%20Legal%20Judgments.pdf

^[9] https://www.livelaw.in/pdf_upload/pdf_upload-385343.pdf

[10] http://ncwapps.nic.in/pdfReports/Gender%20Sensitization%20of%20Judicial%20Personnal.pdf

[11] https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1602199

^[12] https://main.sci.gov.in/pdf/GSICC/gazette_final.pdf