From UPSC perspective, the following things are important :
Prelims level : Nothing Much
Mains level : Improving women's representationin Judiciary.
In the context of the apathy shown towards the woman complainant by an all-male bench (headed by the CJI) in the immediate aftermath of the allegations, and by the in-house committee which has given a clean-chit to the CJI, one cannot help but ponder: Would this incident have been handled differently if the judiciary was not as male-dominated as it always has been?
Gender disparity in judiciary
- The judiciary is one of the least diverse institutions in India, with the lack of gender diversity being the most visible yet ignored aspect.
- Since 1950, the SC has had only eight female judges out of 239, with the present three out of 27 being the highest concurrent representation women have ever had on the SC bench.
- In the subordinate judiciary, merely 27.6 per cent of the judges are female.
- This lack of women on the bench, at all levels of the judiciary, is at the very root of the impunity with which the top court has, in a single stroke, destroyed decades worth of progress made in deterring sexual harassment of women from all walks of life.
Collegium system as a barrier
- Even if a female advocate crosses these barriers to continue and thrive in her profession, the current collegium system for the appointment of judges is simply not designed to ensure her elevation to the bench.
- At present, the appointment of a judge to a high court is based on a recommendation made by a collegium of the three senior-most judges of that HC, and approved by a collegium of the three senior-most judges of the SC.
- Although the state and central governments have a role to play in the process, the final say, for all practical purposes, rests with the SC collegium.
- In 25 HC collegiums across the country, there are just five senior female judges with 19 of the collegiums having no female judge at all.
- Only one woman so far has been a member of the SC collegium (Justice Ruma Pal), with Justice R Banumathi set to become the second later this year; and, at least until 2025, no female judge is going to occupy the CJI’s position.
Self perpetuating phenomenon
- This nearly all-male composition of the highest decision-making bodies in the judiciary has made gender disparity a self-perpetuating phenomenon .
- The data shows that out of the 363 persons recommended for elevation, merely 39 were female (just over 10 per cent). Of these, only 21 were confirmed with the remaining 18 names either being remitted to the HCs or deferred for later appointments.
- The only way out of this vicious cycle is for the nearly all-male collegiums to go beyond their inherent biases and take affirmative measures to improve gender diversity on the bench.
- More recommendations by collegium – The HC collegiums should consciously recommend more female names for elevation and the SC collegium must consider such recommendations more favourably.
- Early elevation in career – Further, the female judges should be elevated early enough in their careers so that they make it to the collegiums and become decision makers (the average age of the 19 female judges elevated since October 2017 is 53 years).
Not a perception problem – Lack of gender diversity is not just a perception problem.
The real impact on proceedings – It is seen to have a real impact on the manner of proceedings and the nature of the final verdict — as is evident in the present instance.
Reinforcing trust in judiciary – specially in the judiciary, gender diversity is a virtue in itself — it reassures litigants that diverse opinions are taken into consideration and re-instils their trust in the justice-delivery system.
Opportunity for course correction – The present calamity in the judiciary, as unfortunate as it is, also provides an unprecedented opportunity to course correct on several accounts. Here’s hoping the men in power have the wisdom to seize it.