Women judges who seek to be equal to their male counterparts but not surpass them, lack ambition. This applies to the three women judges who have been elevated to the Supreme Court because with the retirement of male judges starting with CJI N V Ramana, Justice Uday Umesh Lalit, and the next CJI-in-waiting Dhananjaya Chandrachud in 2024, these women judges will soon head their own benches.
This is why though at first the three women judges may not add to feminist jurisprudence, they will eventually make their presence felt by dealing with crimes against women with more sensitivity than their male colleagues. It is irrelevant whether a judge is a man or woman because they take an oath to uphold the Constitution without fear or favour. One must bear in mind that the Constitution is gender-neutral, which is why India has had only eight women judges out of 247 judges in the Supreme Court between 1950 and 2020.
And so, how Justice B V Nagarathna, who is the product of a judicial dynasty, with Chief Justice of the Telangana high court Hima Kohli and Gujarat High Court judge, Justice Bela Trivedi will perform in the Supreme Court will be closely watched. Justice Nagarathna was forcibly detained within the Karnataka high court by protesting lawyers in 2009. Justice Kohli allowed private hospitals equipped with laboratories and recognised by the Indian Council of Medical Research to conduct Covid-19 tests to prevent Delhi from becoming the corona capital of India. And a bench led by Justice Bela Trivedi sentenced a 22-year-old man accused of raping and murdering a three-and-half-year-old girl in Surat to death.
Justices Fathima Beevi & Sujata Manohar
The very first two women judges of the Supreme Court were a study in contrast. A stolid and conservative Justice Fathima Beevi, who is now 94 years old, hailed from Kerala and was later governor of Tamil Nadu, which was a step down from her status as a Supreme Court judge. The second woman judge to be elevated to the Supreme Court, Justice Sujata Manohar, was seven years younger than Justice Beevi. Refined and elegant, she had studied at Oxford in England and was the daughter of Justice K T Desai.
Unverified information from sources in the lower judiciary claim when a woman magistrate refused to permit foreign couples to adopt Indian children, Chief Justice Sujata Manohar invited her to the high court for a chat over tea. This magistrate revealed she felt foreign couples would exploit Indian orphans in an alien environment
Sometime later, this woman magistrate was forced to accept voluntary retirement because the Bombay high court has got a department called the Special Investigation Department (SID) which keeps records of all district judges and their subordinates throughout Maharashtra and Goa. If the disposal rate of a magistrate does not meet minimum standards or their judgments are irrational, they may be sacked or allowed to accept voluntary retirement to save his image.
'Skin-to-skin contact' verdict
Not infrequently, some women judges are the greatest enemy of women, as in the case of Justice Pushpa Ganediwala, who declared that unless there was skin-to-skin contact, the provisions of the Prevention of Sexual Offences against Children Act (POSCO) would not apply. After being confirmed, three acquittals of POSCO child molesters culminated in her confirmation being recalled and her probable demotion back to the lower judiciary.
The next woman judge who got into a controversy was Judge Kshama Joshi from Goa, who was directed to redact the identity of an alleged rape victim of Tarun Tejpal who promptly thanked the judge for being acquitted. Judge Joshi’s detailed judgment about how a rape victim should behave was aptly summed up by Justice Shirish Gupte of the Bombay high court, who exclaimed the judgment “reads like a manual for rape victims” as it dealt with a rape victim’s reaction after her ordeal.
The point here is these three newly-elevated women judges will be constrained in delivering gender-sensitive judgments to advance feminist jurisprudence because they will always be sitting in benches of at least two, three or five judges where law developed over the decades will override their proclivities for women’s issues.
Not enough
Women comprise just 27 per cent of judges in the trial courts while the percentage fell to just 76 women judges out of 660 judges in the 25 high courts of India in 2019, comprising a meagre seven per cent. This is a tragedy given that there have been no women judges in the Patna, Manipur, Tripura, Telangana, Meghalaya and Uttarakhand high courts.
Justice Anna Chandy was the first woman judge in the British Empire in 1937 and later elevated as a Kerala high court judge in 1959 while Justice Leila Seth was the first woman judge of the Delhi high court in 1980 and sworn-in as the chief justice of the Himachal Pradesh high court in 1991. These women judges sentenced men to death for murder and rape in a bygone era when their sisters were confined to their kitchens and child-rearing.
Patriarchal bent
That patriarchy afflicts male judges was evident from 47th CJI Sharad Arvind Bobde’s remark to a government servant accused of raping a schoolgirl in open court in March 2021: “Are you willing to marry her ? Then we can help you.” It roused the ire of 5,000 signatories who demanded he resign for asking an alleged rapist to marry his victim to avoid jail. One month later, CJI Bobde got into another controversy when he made a public statement that many women lawyers declined judgeship citing domestic responsibilities.
“Chief Justices of high courts have stated that many women advocates, when invited to accept judgeship, declined the offer citing domestic responsibilities about children studying in Class 12, and other similar concerns,” remarked CJI Bobde. Such remarks made in public do display a patriarchal mindset because they assume on the basis of insufficient data that all women lawyers are married and place their children’s academic pursuits before their own careers.
This may not always be the case because some women may not be married or if they are, may not have children, like India’s former Additional Solicitor General Indira Jaising, 81, who was recorded in the mobile of Tarun Tejpal’s alleged rape victim as ‘Brahmastra’. CJI Bobde frankly admitted there was not much progress on elevating women judges to the apex court during his tenure.
Marriage, women and justice may not always mix as well as male judges like former CJI Bobde expect them to.
The writer holds a PhD in law and is a senior journalist-cum-advocate of the Bombay high court
