Attorney General K.K. Venugopal has strongly advocated improving the representation of women in the judiciary for making progress towards a more balanced and emphatic approach in cases involving sexual offences.
In support of his suggestion made in submissions filed by him on behalf of the Government of India, the first amongst the Law Officers in the country, has pointed out in the case – Aparna Bhat v. State of Madhya Pradesh & others, that for instance, the Supreme Court has only two women judges, as against a sanctioned strength of 34 judges. There has never been a female Chief Justice of India. This figure is consistently low across the Higher Judiciary.
These submissions have been made in reply to the special leave petition, filed in public interest, seeking regulation of conditions of bail that a Court can set in cases of crime against women, such as rape and sexual assault, in compliance with the Supreme Court’s order of November 2, 2020.
This case arose out of an order of the Madhya Pradesh High Court at Indore, which while granting bail to a person accused of the commission of offences under sections 452, 354A, 354, 323 and 506 of the IPC, imposed certain conditions beyond the purview of the Code of Criminal Procedure.
In addition to directing the accused to furnish a bail bond of Rs 50,000/- and certain other conditions, the HC also directed the accused along with his wife to visit the house of the complainant and request her to tie a ‘rakhi’ on his hand, gift her a box of sweets, promise to protect her in the future and also to pay her Rs 11,000/-as part of the customary gift given by the brothers to their sisters on ‘Rakhi’ day andto payRs 5,000/- to her son for sweets.
The petitioner has drawn the SC’s attention several other instances where similar directions have been passed by High Courts and Tribunals across the country. The wide prevalence of such orders makes it clear that there is a need for urgent intervention of this Court to, firstly, to declare that such remarks are unacceptable and have potential to cause grave harm to the victim and to society at large, and secondly, reiterate that judicial orders have to conform to certain judicial standards, and thirdly, take necessary steps to ensure that this does not happen in the future.
The Attorney General has suggested in the submissions, to the SC that “to this end” that there are two broad areas where the Court can intervene and pass directions: 1. Guidelines on bail and anticipatory bail, in line with already settled jurisprudential principles, to ensure that the Court only imposes conditions that are permissible and in line with the statutes;
2. Gender sensitization of the bar and the bench – particularly with regard creating a sense of judicial empathy with the victim, with the judges placing themselves in the victims’ shoes, and secondly conceptualizing their response to the crime in term of the same having been committed upon a member of their own family.
On the aspect of achieving the goal of gender justice, it is imperative that our judicial officers, judges and members of the bar (including specifically public prosecutors), are aware themselves of stereotypes, bias, and other irrational tendencies that have to be shunned in the process of judicial adjudication. Such understanding would help foster a judicial system that guarantees right of women to equal access fair and gender-sensitive court proceedings, mediation processes, adjudication and enforcement of judgments.
Three aspects which are important to facilitate a more gender sensitive approach are to train judges to exercise their discretion by:
1. Placing themselves in the shoes of the victim of sexual violence.
2. Assessing the crime as if the same had been committed on a member of their own family.
3. Avoiding the use of gender-based stereotypes while handling cases of sexual violence.
In the submissions, need to improve representation of women – in the judiciary has been underlined, pointing out that only 80 women judges out of the total sanctioned strength of 1,113 judges in the High Courts and the Supreme Court across India. Out ofthese80women judges , there are only two in the Supreme Court and the other78 are in various HCs, comprising only 7.2 percent of the total number of judges.
Of the 26 Courts whose data was accessed, including the Supreme Court, the Punjab and Haryana HC has the maximum strength of women judges- 11 out of 85 judges, followed by the Madras High Court – 9 out of 75 judges. There are 8 women judges in both Delhi and Bombay High Courts.
There are six HCs – Manipur, Meghalaya, Patna, Tripura, Telangana and Uttrakhand wherein there are no women judges. At the same time, there is only one woman judge in six other HCs of the country.
Currently, no data is centrally maintained on the number of women in tribunals or lower courts.
Equally, as far as senior designation is concerned there only 17 lady senior counsel officially so designated in the Supreme Court as opposed to 403 men. The Delhi HC has 229 men and 8 women designated senior counsel. Similarly in the Bombay HC, there are 6 women 157 men senior advocates.
Significantly, these figures are much lower, compared to other OECD nations.
By way of remedy, the Attorney General has suggested that the Supreme Court must : i. Direct collection of data to determine the number of women judges in the lower judiciary; ii. Direct collection of data to determine the number of women judges in tribunals; iii. Direct collection of data to determine number of senior advocates by all HCs year wise and iv. Ensure greater representation to women at all levels of the judiciary, including the Supreme Court. This initiative must come from the Supreme Court itself, considering the power of appointment rests almost exclusively with the Supreme Court Collegium. The goal must be to achieve at least 50 pc share of women in all leadership positions.
