Please note that some inputs have been given by our team in order to make the topic more relevant to UPSC.
Recently, a group of women advocates filed a petition in the Supreme Court, highlighting the lack of gender sensitisation in the judicial system in the country. Among many incidents, the group highlighted a particular incident in which the MP high court asked the victim of a sexual assault case to tie rakhi to the accused as a precondition for granting the bail.
In reply to the petition, Attorney General KK Venugopal, while representing the government, stressed on the need for improving gender sensitisation in the judiciary. Such a step is expected to instil empathy for the victims among the government functionaries, especially, in cases involving sexual violence.
He also pointed to the dearth of courses involving gender sensitisation in the law education in the country.
Reasons for the lack of gender sensitivity:
Larger Societal mindset: While it is expected of the functionaries of the court to maintain a more balanced approach towards sexual violence cases, it must be remembered that the judiciary cannot be singled out in such instances. The larger societal misdemeanour towards females is common parlance in the country.
Patriarchal mind-set: Despite the constant interventions regarding gender equality, there is a section of the society, which still believes that women are weaker and incompetent in comparison to their male counterparts. This mind-set is regressive for the society as a whole and creates obstacles in the pathway to women empowerment.
Barriers to entry of women: This is both a cause and effect of the virtual absence of women in the legal fraternity. It is believed that the profession is too aggressive and rigorous to allow for the entry of women. The attitude needs a correction and the inherent bias against the women needs to be corrected. There is a requirement to create ample opportunities for women in the field of their choice, to let them prove themselves.
Importance of ensuring gender parity in the context of judiciary:
Comfort for the victim: It is important to realise that a sexual assault victim would be more comfortable in reporting the case details in the presence of a female judicial officer. This is a tested theory whereby the government has taken many initiatives including all-women police stations to create a sense of ease for the victims of sexual violence.
Media reports had indicated the hesitation faced by female victims in reporting the crimes because of the apathy of the police officers.
Apart from that, various incidents of police officers coercing victims into withdrawing the cases have come to light, possibly in order to decrease the crime rate in their area.
Therefore, it is believed that all-female police station would instil a sense of security in the women. On the same lines, having more female judicial officers would go a long way to ensure a more welcoming environment for the female victims.
More acceptable judgements: There are certain situations in which it is much better that a female judicial officer presides over a case. For e.g. society almost always questions the bona fides of a judgment in which a male judge pronounces a verdict in favour of a male accused belonging to the more affluent section of the society in the cases of sexual assault.
Role model for lower courts and other institutions: Apex court is looked upon and followed by the various institutions, including the lower judiciary and other institutions. Thus, it is imperative to build a sense of positive discrimination in favour of women, to instil confidence in women. This will encourage the lower judiciary to practice a similar approach in their treatment of women.
Inherent need: Gender parity is an inherent need of society. A society cannot be expected to progress where half of its population is considered second class citizens.
Challenges to gender parity in judiciary:
Feminisation of professions: There is a tendency in society to make the occupation gendered. For e.g. the occupation of nurse, teacher, bankers, etc. are considered more suitable for females. On the contrary, being an advocate is not considered a suitable profession for the females, because of the rigorous competition and the hardships connected with crime adjudication. This further leads to a lower retention rate of women in the profession, with many of them either shifting to teaching or other professions and others just retiring altogether.
Absence of gender parity: The numbers paint a gloomy picture of gender parity in the apex institution of the judiciary. For e.g. there has not been a single female Chief Justice of India to date. Also, currently, there are only 2 female judges as compared to 32 male judges in Supreme Court. Apart from that, there are only 17 female senior lawyers against 403 male senior lawyers in the apex court, which shows the lack of parity in the top court itself.
Opacity of the collegium system: The promotion of judicial officers in the judiciary is done through the collegium system. The opacity of the collegium system leads to the absence of information for understanding the reasons behind the lack of appointments of women to the top posts in the judiciary.
Work-life balance: Although the judicial officers have a fixed timing, the same cannot be said for the advocates. The nature of the profession is such that it is considered a round-the-clock job. There are constant pressures due to the tough competition and lack of time for the family, which creates a negative perception of the suitability of the job for females.
Collegium System: Collegium system is the system of appointment of judges to the top judiciary in India.
It comprises of the five senior-most judges, including the Chief Justice of India.
Collegium system is the result of evolution involving the interpretation of the constitution and the Supreme Court cases.
Standardisation of judicial processes: It is important to keep discretion in the public service delivery to a minimum, to decrease the bias. For e.g. a formula can be devised where bail is granted on the basis of set criteria, to maintain parity between the cases. To illustrate the point, a working person in a recognised profession, who is a first time offender, can be given certain marks. Once a person clears the marks cut-off, bail is automatically granted. This will decrease the perception of bias in favour of the rich in the judiciary and will enhance the positive perception of the judiciary itself.
Objectivity in decision making: Supreme Court is considered one of the most trusted public institutions in India. Still, it is the responsibility of the courts and the judges to ensure that the personal notions inherent in a human being do not affect the judgement. This will further enhance the public trust in the judiciary and the process of justice delivery.
Recognising the evolving gender empowerment: It is also important to recognise the role of women, who have broken the shackles of patriarchy and carved a niche for themselves in society. Their pathway to success can be portrayed as a role model for other women to follow upon.
Reverse Discrimination: It is high time that a positive discrimination in favour of women is exercised to place them at an equal footing as compared to the male members in the judicial system.
Gender education in law schools: There have been suggestions to include gender sensitisation as a compulsory subject in the law schools to correct the situation at the foundation itself.
There is a requirement to enhance transparency in the judicial system. This will create more opportunities for women to prove their mettle and create a level playing field.
Also, there is a need to impart objectivity and decrease the amount of discretion in the judicial processes including the bail-granting process, to safeguard the reputation of the judiciary in the country.
As the apex institution of judiciary, Supreme Court has the added responsibility to manifest its commitment to the cause of gender sensitisation. Comment.