The 99th amendment to the Constitution, passed by the Lok Sabha and Rajya Sabha in August 2014, proposed to establish a body for appointment and transfer of judges to the High Courts and Supreme Court of India. Accordingly, the National Judicial Appointments Commission (NJAC) Act of 2014 was introduced to regulate the functions of the Commission. The NJAC sought to grant final say to politicians and civil society in the exercise of appointment and transfer of judges.
The NJAC sought to grant final say to politicians & civil society in the appointment & transfer of judges, which was struck down as unconstitutional by the Supreme Court.
On 16th October 2015 The Supreme Court by a 4:1 majority struck down the 99th Amendment to the Constitution, declaring the National Judicial Appointments Commission (NJAC) Act, 2014 as unconstitutional. It was observed that the judicial obligation to safeguard the rights of citizens of the country could only be discharged effectively if the Judiciary was kept independent, there being no room for political voices in judicial appointments. The decision in effect revived the collegium, thus leading to a long-drawn tussle between the Executive and the Judiciary, and delay in appointments in the latter with the last appointments to the Supreme Court being in May 2016.
Marking a shift from the aforesaid deadlock, in January this year, the Supreme Court collegium recommended the names of five new judges for appointment to the apex court. The recent recommendations of the collegium for the elevation of judges to the Supreme Court were approved by the Law Ministry on 13th February 2017 and the new Judges take the oath today, on 17th February 2017.
The Supreme Court has been left with only one female judge for over 2 years.
Though the move has been a welcome one, one name in particular that drew attention for its absence on the said list was that of Justice Manjula Chellur, sitting Chief Justice of the Bombay High Court. The same redirected attention to an alarming fact about the Indian Judiciary and the final court of appeal in particular. The Supreme Court has been left with only one female judge for over 2 years since Justice Ranjana P Desai retired in October 2014. With a sanctioned strength of 31 judges, the Supreme Court currently has a 23 judges (28 after the new appointments today) of which Justice R Bhanumati enjoys the privilege of being the sole female sitting Judge in the Supreme Court of India, a Court which has never had more than two women judges at the same time.
Much has been said about the legal profession in the country being akin to an All Boys Club with women lawyers struggling to make their presence felt owing to dwindling numbers. Women formally entered the legal practice with Cornelia Sorabjee, the first female barrister in India, being admitted to the practice. Sorabjee graduated in 1897 and cleared the pleaders exam of the Allahabad High Court in 1899, yet was only recognized as a barrister in 1923, after the law barring women from practising was altered. In a country that has never seen a woman appointed as Attorney General or Solicitor General, it comes as no surprise that Indira Jaisingh, the first female Additional Solicitor General, was only appointed in 2009.
If the bar is reflective of the gender bias that is ever apparent in the legal fraternity, the Bench is only illustrative of the extent of this bias. The historical trajectory of appointments to the High Courts and The Supreme Court of India, when viewed through a gendered lens, bring forth a dismal state of affairs which has institutionalized gender bias in the Indian Judiciary. Anna Chandy may have gone on to be first female Judge of a High Court in India as early as 1959, however, it took women nearly 4 decades of the country having attained Independence to make it to the Apex institution of the Indian Judiciary, with Justice M Fathima Beevi being appointed in 1988. Justice Beevi was the first of a total of 6 women to have made it to the the Supreme Court Bench, which has never had a female Chief. Further, Justice Leila Seth who was the first female Chief Justice of a High Court, was designated so only in the year 1991.
The lack of female judges in the Supreme Court brings into focus the need for more female voices to reform a primarily patriarchal society.
In the present day, the number of women judges, when compared to their male counterparts, are negligible – a few among the 24 High Courts find a complete absence women at the Bench. Although there is a significant number of women entering the judicial services through examinations, the same begins to diminish at the stage of appointment time the Higher Judiciary. The High Court of Delhi and The High Court of Bombay are the only two High Courts with women Chief Justices, Justice G. Rohini having been appointed the first female Chief of the former in 2014.
The issue of gender discrimination within the judiciary, which has come to fore with fresh appointments to the Supreme Court and recommended appointments of Chief Justices of several High Courts, had earlier been emphasised at the time of the debate on the constitution of the NJAC which proposed grant of more power to the executive in making judicial appointments. While the lack of transparency in judicial appointments has been a contested issue, particularly in the context of the NJAC Case, it isn’t the only hurdle standing in the way of women and the Courts.
The Supreme Court Women Lawyers Association (SCWLA), expressing their concerns regarding the participation of women in the delivery of justice and their representation in the higher judicial institutions, had proposed certain suggestions in order to ensure that the Indian Judiciary was committed to the advancement of meritorious women and the ideal of gender equality. Emphasizing the precept of formal equality guaranteed by Articles 14 and 15 of the Constitution, the SCWLA had brought focus on the need for adequate representation of women, particularly with an aim to address the lack or denial of rights as well as the increased rates of offences against women, the nature of these offences being such that required more women at the bench in order to advance the cause of gender justice within the Indian social context.
The SCWLA also drew attention to the fact that India was a signatory to the 1979 Convention on Elimination of Discrimination Against Women (CEDAW) and having ratified the Beijing Action Plan of 2005, owing to the ensuing obligation for promoting gender equality, safeguarding the rights of women and ensuring their advancement and development, the presence of women and their involvement in social, economic , political and particularly judicial decision-making in order to ensure the participation of women in public spheres, was a key step towards eliminating barriers that deny women equal participation in public life.
In view of the aforesaid suggestions, and admitting to decades of institutional disparity in appointing women as judges to the High Courts and the Supreme Court, Justice J.S. Khehar, the current Chief Justice of India acknowledged the need to improve the ratio of male and female judges and increase appointments in case of the latter. Furthermore, in 2015, the Parliamentary Committee on Law and Justice also recommended that reservation be granted in favour of women as far as the higher institutions of the Judiciary were concerned. The suggestion although a means to ensure a more representative judicial wing, has been critiqued on the argument of meritorious appointments.
There is no dearth of women lawyers and lower judiciary judges in the profession and the lapse lies in ensuring that they get their dues in what is predominantly a male-dominated profession further strengthened owing to the hierarchy that sustains it. The lack of female judges and the presence of only one female judge in the final court of appeal brings into focus not only in the context of gender bias and lack of accreditation, but also on the question of representative justice and the need for more female voices to reform a primarily patriarchal society. The apex court in particular, despite acknowledging and admitting to the institutionalised bias, has failed to lead by example in this aspect.