Can the elevation of women as chief justices of High Courts be a sign of gender equality in the judiciary or is this a mere coincidence?

 ~By Venkatasubramanian

When things happen for the first time in history, it leads to curiosity, accompanied by a certain degree of expectation that more will follow. Therefore, when four women became the chief justices of four High Courts recently, it led to considerable excitement that the glass ceiling in Indian judiciary was cracking at last, if not broken.

The appointment of Justice Indira Banerjee of the Delhi High Court as the chief justice of the Madras High Court in March (she took over in the first week of April), taking the total number of women CJs to four, was what made many sit up and take notice. Though the number has come down to three with Justice Gorla Rohini of the Delhi High Court retiring on April 13, it is time to take a critical look at the judiciary’s claims of gender equality.

 Among the other three women CJs, Justice Manjula Chellur will retire on December 4 this year unless she is elevated to the Supreme Court before that. Supreme Court judges retire at 65, while High Court judges and chief justices retire at 62. The third woman, Acting Chief Justice of Calcutta High Court NN Mhatre, also retires this year on September 19. Justice Banerjee will retire on September 23, 2019.

Among the four names, Justices Rohini and Manjula Chellur were being considered for elevation to the Supreme Court. The non-inclusion of their names in the lists of recommendations of the Supreme Court’s Collegium is inexplicable. With Justice Rohini retiring, the Supreme Court has lost a talented jurist, who could have served it with distinction for another three years. The non-elevation of these two women CJs to the Supreme Court before their retirement is a paradox because the apex court currently has three vacancies in its approved strength of 31.

Their non-inclusion in the Supreme Court makes one wonder whether women suffer because of their gender even at the highest level of the judiciary. If there are valid reasons for their non-inclusion, the Supreme Court Collegium must make the criteria, which made it possible to recommend male judges to the apex court, public. It is ironic that the representation of justice is a lady justice carrying a sword and scales, often blindfolded to symbolise fair and equal administration of law, without bias or prejudice. But in reality, does that happen?

This symbolism is strengthened by the fact that the Supreme Court building is designed in a shape that projects the image of scales of justice with the Central Wing corresponding to the centre beam of the scales. The Supreme Court Collegium must introspect whether its members should carry out this symbolism seen in its architecture.

The first woman to be appointed to the Supreme Court was Justice Fatima Beevi in 1987. Justice Sujata Manohar joined the Court in 1994. Justice Ruma Pal, who joined it in 2000, was considered by many to be in the reckoning for the post of chief justice of India. But she lost her seniority to Justice YK Sabharwal and Justice Doraiswamy Raju, who were sworn in as Supreme Court judges on the same day as her. She lost out because of the convention that the tenure of High Court judges should be considered to determine their seniority in the Supreme Court.

Justice Ruma Pal was followed by Justices Gyan Sudha Misra and Ranjana Desai who have since retired. Justice R Banumathi, who joined the Court on August 13, 2014, is the sixth woman judge to be appointed to the Supreme Court and will retire on July 19, 2020.

It is ironic that the representation of justice is a lady justice carrying a sword and scales, often blindfolded to symbolise fair and equal administration of law.

Supreme Court observers have pointed out that path-breaking concepts in women’s rights were addressed by benches of which women judges were a part. Justice Sujata Manohar was part of the three-judge bench in the landmark case of Vishaka, when the Supreme Court filled the legislative void and laid down mandatory guidelines to be followed to prevent sexual harassment of women at work places.

Justice Ruma Pal, it is pointed out, through her judgments in A Jayachandra and Vinita Saxena, elaborated the concepts of mental cruelty in a marriage and that being a ground for divorce. In the case of RD Upadhyaya, she made a remarkable contribution to the welfare of children of women undertrials and convicts. Where gender justice is concerned, it is emphasised, women judges would not hesitate to stray from the conventional path. 

According to the latest figures, there are only 69 women judges working in different high courts, which constitutes 10.86 percent of the working strength of judges (652) in the 24 High Courts. The Bombay High Court leads the list with 12 women judges, followed by Delhi High Court with 11. Eight high courts do not have any woman judge.

It is likely that it will take many more years to realise gender equality in the higher judiciary, and make our jurisprudence gender-sensitive.