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The inability to get more women judges on the Bench can change only if the conventional yardsticks for assessing women lawyers are broken, Supreme Court judge, Justice DY Chandrachud said yesterday.
He was speaking at the roundtable discussion organized by the Indian Feminist Judgments Project on “Feminism in Practice: Feminist Lawyering and Feminist Judging”
According to Chandrachud J., the “yardsticks” used to assess women lawyers are not gender neutral and that is one of the reasons for the lack of woman judges in higher judiciary.
“Real problem is that we have today laid down yardsticks which in themselves are not gender neutral.”
Advocating a need for the change in these conventional yardsticks used to assess candidates for the purpose of elevation to the Bench, Chandrachud J said that the problem lies with the way the performance of a lawyer at the Bar is assessed.
Elaborating on the subject, he said that some of the main criteria considered for elevation to the Bench include the number of reportable judgments they have procured, the income garnered from these cases etc.
Chandrachud J recounted an instance during his time as the Chief Justice of the Allahabad High Court when the name of a woman lawyer had to be removed from the list of candidates considered for proposal for elevation to the Bench on the ground that her income did not match the “yardsticks” prescribed.
Despite her being articulate and good at her work, the woman lawyer’s name was subsequently removed given that she largely fought labour law cases and the people she fought for, were very poor, Chandrachud J recalled.
“Success at the Bar is defined by how many reportable judgments do you have, what was your income et al… Issue is not men Judges not wanting women Judges appointed; Issue is this… how do you assess women lawyers? If you need a greater sense of inclusivity in the Judiciary, then the yardsticks will have to be changed and it won’t work by merely changing the Collegium system or any other system, but these yardsticks will have to be broken”, he added.
Also pointing out the positive change in the scenario now, Chandrachud J noted that in some places there is a 30 percent horizontal reservation for women in the judiciary. However, the number of women getting inducted into the system is much higher than the 30 percent reservation made, which goes to show that women are coming into the system based on their merit and not merely because of the affirmative action.
Chandrachud J also touched upon the perception factor when it comes to women lawyers in Courts and said that there are double standards prevalent which are applied to women lawyers and men lawyers,
“What’s wrong about a woman lawyer who is aggressive. I thought lawyers are supposed to be aggressive because they are fighting for a cause against injustice so what is wrong if a woman is aggressive… So whether a woman is aggressive or a man lawyer is aggressive, it really ought not to matter. A woman lawyer is expected to be graceful, submissive whereas male lawyers are not. You see prevalent double standards which are applied”
The Chief Justice of Jammu and Kashmir High Court Gita Mittal, who was also a part of the panel, weighed in saying that when exams are conducted for lower judiciary, the success of women candidates was higher. She stated that the success rate for women in Delhi was found to be 60 percent and the case was similar for some Higher Judicial services also. She adds,
“It is only when the men are making the choice that women are falling behind. I agree with Justice Chandrachud that the yardsticks with which we must evaluate the competence of lawyers, need to change… We really need to take a look at the conditions that are prescribed and they should also be made regional because it is different in places like Delhi, Mumbai and Chhattisgarh and Mizoram.”
Mittal J also said that as she is a newly sworn-in Chief Justice of Jammu and Kashmir, she is still in the process of grasping the difficulties that women in the State encounter. She said that junior lawyers were finding it difficult to join the profession and it was even harder for women lawyers.
Former Judge of the Madras High Court Prabha Sridevan, Dr. Pratiksha Baxi from JNU and Advocates Vrinda Grover and Malavika Rajkotia were also on the panel. The discussion was moderated by Senior Advocate Rebecca John.
The Project on Indian Feminist Judgments is a collaborative project of OP Jindal Global University, National Law University, Delhi and Ambedkar University, Delhi