Position of Chief Justice – Gender Biased?

A parallel is being drawn between the conditions women lived in, then and now in a certain feminism lecture. Is there a difference? Yes. Is the difference significant? Also, yes. But is it enough? No, at least not yet.

What came to Attorney General, KK Venugopal’s attention on a particular Wednesday morning has already been a botch on the Indian Constitution’s portrayal of a nation established on the pillars of equality. The sheer absence of a female Chief Justice at any given point of the Indian judicial history, offers us the question of whether the country really has managed to practice what a democracy preaches. A diverse country like India has a certain set of laws which are established as a binding force over the myriad of citizens that exist in the country. Compliance to these laws becomes essentiality, in order to retain harmony and justice.

The data is indicative of the fact that in the High Courts and the Supreme Court, there are only 80 women judges out of a total authorised strength of 1,113 judges.[i] That’s a disgraceful 7.18 percent, a statistic that fails to resonate with the equal opportunities that women should be receiving. Further, it was identified that six of the High Courts – Manipur, Meghalaya, Patna, Tripura, Telangana, and Uttarakhand – don’t have female representation at all.[ii] Over the years, the massive strides of progress that India has made are undeniable but at the same time, there exist lacunae in the otherwise modern approach we seem to be taking in the country. The lacunae stem from a deeply ingrained prejudiced ideology that is yet to be uprooted in multiple households.

The primary reason why a larger number of representation of women should exist in courtrooms is not just eliminating gender bias but also bringing in a sense of gender sensitivity in the various judgements that are passed. A recent example that can be taken is that of Vikram v. State of Madhya Pradesh[iii] where the Madhya Pradesh High Court ordered granting of bail to an accused rapist. The grounds for the same required him to visit the victim’s house, ask her to tie him a rakhi and offer money and sweets to her and her son. The mere decision trivialized the entire mountain of trauma that the woman had endured. The system chose to offer an easy escape route to the accused, under the veil of it supposedly upholding the victim’s dignity. The absolute disregard for the female’s ache, the struggles that she endured is an appalling remark on the indifference that the single-male bench of Justice Rohit Arya expressed. It is of common opinion that if a female justice were to be present in such a scenario, the empathy or just basic concern would have been far beyond an attempt to adhere to practices that should’ve long been buried by now. Justice is blind, yes but it should not be apathetic towards the people of the country.

Article 15 of the Indian Constitution states that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” It aims to eradicate discrimination in terms of every aspect – be it race, creed, caste, religion and gender. So, when institutions that are representatives of the Constitution, themselves fail to project what it stands for – that leads to a significant imbalance in the pillars of democracy. Feminists and activists across the country and the world for that matter, have constantly tried to relay the necessity of placing women at an equal pedestal as men. Metaphorically, if the society is seen as a cycle, each part has its own importance. It must be regulated and maintained in a manner that allows the vehicle to run smoothly. And the only way to achieve that is ensuring that every part, every section of the society that is, has been offered equal opportunities and leveled treatment.

During the Vedic period, women were considered equal to men. They were not segregated from men and were free to engage in public life. They were present at important gatherings and state functions. They wrote hymns after studying the Vedas. They made a name for themselves in science and education during their time. Property rights existed for them and burning of widows (Sati) was not a concept. In reference to what the texts had to say about women, they were the “ardhangini” or better half. But the importance was more theoretical than practical. Following the Vedic time period, the conditions that women were subjected to deteriorated with time and allowed for atrocious practices to take place. Unnecessary Brahmanical rules and the imposition of the caste system created cultural divides and proved to be an onset for prejudice against women. The Smritis required them to treat their husbands as God, and widows were to live a life of austerity and penance instead of remarrying. Consequently, improvements were made, and efforts were put in but the autonomy that they had enjoyed in the Vedic period had been exhausted to a massive extent.

When the British Raj arrived, it brought with it a progressive ideology. Various acts were introduced to uplift the women in society. Notable examples include –

Abolition of Sati Act, 1813.
The Hindu Widow Remarriage Act, 1856.
Civil Marriage Act, 1872.
Married Women’s Property Act, 1874.
The Child Marriage Restraint Act (Sharda Act), 1929.[iv]

Moving on, monogamy, judicial separation, nullity and divorce (even on mutual consent), inheritance (equal share in parental property), adoption, widow remarriage, and sati abolition are some of the main features of the post-independence period that placed men and women on an equal footing in terms of legal measures. In present times, the government has introduced one-third reservation for women in panchayats and urban local bodies through Article 243 (73^rd and 74^th Amendment of the Constitution) which has caused an obvious boost in their participation in the community.[v] There was also an improvement in the number of women hired in state government services, when the states began to offer reservations for the same – 35 percent in Bihar[vi] and 33 percent in Punjab.[vii]

Today, women are stepping out of their supposedly assigned roles of daughters and wives and mothers – and stepping into roles of power and taking hold of their rightful place in the community. The lack of representation which was otherwise caused due to excessive household work, the necessity to match societal expectations, the pressure to fit the women stereotype – is being let go of. Previously burdened by the question of “what the society would want?”, women are now steadily gaining awareness about their rights and concentrating on what they themselves desire. Intersectionality is seeping in, and the citizens of the country are giving in to the force, the strength that is women. This process can be fastened by placing them at positions that assist in social, economic and political justice for them. An opportunity to delve into the oppressive system that has held them captive for too long, and demolish it completely. It isn’t a day’s work, but the chain of events started when the idea of a female Prime Minister and President was not foreign to us anymore. The Judiciary can contribute with bidding adieu to gender bias, and letting female Chief Justices draw on a long-due system cleanse. A revolution in its own, if you will.

Hence, when thinking about the future of this country, I often construct an image for it to break through the shackles of social evils and make a conscious effort in the direction of betterment. In the words of the eminent poet Rabindranath Tagore –

“Where the clear stream of reason has not lost its way;

Into the dreary desert sand of dead habit;

Where the mind is led forward by thee;

Into ever-widening thought and action;

Into that heaven of freedom,

My Father, let my country awake.”

[i] https://www.arre.co.in/gender/woman-chief-justice-of-india-attorney-general-kk-venugopal-supreme-court-high-courts/

[ii] https://www.thehindu.com/news/national/there-has-never-been-a-woman-cji-says-attorney-general/article33233401.ece

[iii] 2020 SCC OnLine MP 3171

[iv] https://www.jagranjosh.com/general-knowledge/social-legislation-under-british-rule-1444624177-1

[v] https://www.dnaindia.com/analysis/column-let-s-talk-women-s-reservation-2805945

[vi] https://www.ndtv.com/education/50-per-cent-reservation-increased-number-of-female-teachers-in-bihar-sushil-kumar-modi-2144528