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Legal Finding The Balance. Gender And Judging In India's Appellate Court


1947-2014 (Archived)
Jun 17, 2004
By Kalyani Raamath

About a year ago, I watched Ruth Cowan's movie Courting Justice on women in South Africa's Constitutional Court. My reactions to the movie were contradictory. On the one hand, the narrative was no doubt inspiring as stories of all hard won successes are. On the other, I wondered whether women play but a symbolic role in the judiciary -- the other/different voice or the interesting face in a sober, male dominated institution. I wondered whether women judges in such cases felt that they only possessed symbolic value. This was also the time when Justice Sonia Sotomayor was appointed to the Supreme Court in the U.S. Both these instances led me to think of women in the judiciary in India.

The Constitution of India establishes the Supreme Court as the highest judicial body in the country, and High Courts for each state. Since its inauguration in 1950, four women have been appointed to the Supreme Court: Justices Fatima Beevi, Ruma Pal, Sujata V. Manohar and most recently in April 2010, Justice Gyan Sudha Mishra. In the 22 High Courts, the highest number of judges are in the Bombay, Delhi and Madras (7, 7 and 6 respectively in courts having at least 40 judges). The trial courts however, show much better numbers. Few theoretical expositions, and fewer empirical studies have tried to understand this disparity.

In looking for material, I came across former Justice Leila Seth's autobiography, On Balance published by Penguin Books. In a remarkable narrative, Justice Seth traces out her life story. This is not a story merely about a woman judge nor about judging as a woman. There is no effort made to inject 'gender' or 'woman' or to deliberately politicize the events in her life. However, it does much to advance understandings of gendered spaces within the judiciary. While writing of her elevation to the Delhi High Court, she recounts how she corrected people who introduced her as the new lady judge. "I am not the new lady judge, but the new judge." (p.260). While reading the book, I sensed that as a new judge who was a woman, she had to deliberately move away from being seen as a "different" voice. She had to be, in her own words, "equal-plus" in order to be taken seriously.

Studying gender and judging in India faces many challenges. The impact of ideology or identity can be studied at many levels -- at the appointments level, the work allocation level or at the decision-making / decision-writing level. With respect to appointments, arguments have been made as to women being a necessary antecedent to diversity within the judiciary. A recent report submitted to the Justice Department in the United Kingdom by the Advisory Panel on Judicial Diversity in 2010 has highlighted why diversity within the judiciary is necessary to improve democratic legitimacy. This argument has been made in the Indian context as well by public policymakers.

In the case of decision-making or decision-writing, there are twin challenges encountered in the Indian context by those attempting to study this matter empirically. One is that judges in the appellate judiciary are not elected, unlike in the U.S. Second, judges in the appellate judiciary, including the Supreme Court, do not sit en banc (all together) nor do all of them have to write opinions on every case that comes before them. This means that their political leanings are often not easily discernible. Very few sitting judges will speak up openly about their ideological tendencies. This leaves the work allocation matters.

In the High Courts in India and in the Supreme Court, the caseload is allocated by the Chief Justice of the particular court and the Registrar, who handles the administrative matter. In many instances, women judges move away from judging issues that are typically seen as "women's issues," such as discrimination or sexual harassment. Instead, they choose to focus on tax or property matters. Ostensibly, this reduces chances of being dubbed a "feminist" or a "radical."

In a study conducted by Ann Stewart at the University of Warwick involving trial judges participating in a judicial training program in India, where women judges constituted 20% of a group, it was shown that they had a positive impact on the group discussions and were more willing to adopt innovative methods. They were more willing to share their experiences. Surprisingly, and yet not, their "brother judges" had no inkling of the difficulties that their women colleagues suffered. This explains why few of these judges will make it to the appellate level. There is no support system targeted at retaining judges, and certainly not women, along the lines of the Judicial Skills program in South Africa.

This confirmed my intuition that at least in the case of India, women appointed to the appellate judiciary had to not only work to be seen as competent judges, but also not as mere symbols. Leila Seth will doubtless agree, that for India's judiciary, the balance is yet to be achieved.




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