Why having more women judges matters: CJI DY Chandrachud recounts experience with Justice Bela Trivedi

Chief Justice of India (CJI) DY Chandrachud recently spoke on the need for more women judges in courts, which he said goes beyond the popular (and not necessarily true) perceptions that women judges may give “liberal” outcomes..Speaking at a lecture organised on June 6 at Cambridge University in United Kingdom, CJI Chandrachud observed,“To postulate that merely because you have a woman as opposed to a man deciding a case, that you would have a more 'liberal outcome' would be a wrong perception. You don't have to have more women on the Bench in the hope that you would have a more liberal judiciary. Let's make that very clear.”To give an example, he recounted that in the Sabarimala case, the sole dissenting judge was a woman (Justice Indu Malhotra, now retired).“In the Sabarimala case … the question was whether a woman of the menstruating age would be excluded from worship in the temple. I was part of a majority which held that you cannot use menstruating status to exclude women from the right to pray, even though the tradition was that the deity is celibate … I respect that viewpoint, but I took a constitutional perspective. The sole dissent was by a woman colleague. When I came back after the judgment was delivered, a host of my law clerks came to me in the evening and said, 'how could your colleague deliver this dissenting judgment?' I said, ‘well, you are wrong in this particular score when you expected that merely because you had a woman judge on the Bench, she would deliver a more 'progressive' judgment.’ It does not work that way. There is a very strong segment of the academic community which has praised her judgment as well,” CJI Chandrachud said.He went on to stress that more women are needed as judges because of their unique lived experiences and perceptions, which male judges may not be privy to.“Women, when they see our social life - and my colleagues who are women who have seen social life - their perspective on social life as they see it, is a very different perspective from what I have,” the CJI said.In this regard, he highlighted how a woman colleague at the Bombay High Court had flagged the similarities and patterns in crimes against women or gender-based violence.He recounted his experience at the Supreme Court by sounding an appreciative note of how Justice Bela Trivedi brought to life the facts of a complex criminal case before the Bench.“I was sitting with a woman colleague, Justice Bela Trivedi. Here, there was a very complex set of evidentiary records - several witnesses. After the case was over and before I began dictating my judgment, I turned to her, and I said - 'sister, what do you think about this case?' She just put down her brief., She said – ‘let us keep down our pens.’ In the next ten minutes, she just reproduced the whole crime scene before me. And (in) the reproduction of the crime scene - she brought to life the crime scene completely on the basis of the records. She brought a lived reality to life. I believe that's what having more women on the Bench contributes to - or a diverse segment of our community. This is not just (with respect to) women but diversity in terms of caste, in terms of social groups,” the CJI said..He also noted that several States had reported that women who cleared competitive district judiciary exams outnumbered the successful male candidates.This shows that if equal opportunities are given, women can aspire to positions earlier open only to men or even out-perform them, he said.He added that there is a need to encourage women to stay in litigation and create structures where they are recognised, and that this responsibility lies with the courts as well as the Bar.The CJI made these comments during a question and answer session that followed his lecture on “The role of a judge in craftsmanship and Constitutional interpretation.”.On Reservations v. Merit debateDuring his lecture, the CJI noted that earlier notions that reservations or affirmative action would compromise merit have been progressively questioned over time.He recounted that while affirmative action was initially opposed and even struck down in 1951 by the Supreme Court as being antithetical to equality, the definition of what constitutes equality itself underwent a change later.With such evolving notions, in 1976, the Supreme Court held that reservations are a facet of substantive equality, he observed.“I think all these opinions have contributed to a new synthesis and a new emerging notion of what really equality stands for,” he added.The CJI went on to observe that merit should be defined in a more inclusive sense."Does merit really stand for these scores which you get in admission tests for admission to universities? Or does it stand in terms of the raw scores which you get in a competitive examination for employment in public service, because jobs are very scarce? Or is merit to be defined in a more inclusive sense, as bringing into the community or into the mainstream those segments of our society which have not had the benefit of a share in the wider societal pie? If you define merit in a more inclusive sense, you define equality in a more substantive sense - as not just implying a formal sense of equality but something which the Constitution aspires for in terms of equality of opportunity,” he said..Court rulings on LGBTQ issues have sparked public dialogueCJI Chandrachud further noted that while the Supreme Court turned down a plea for according legal recognition to same-sex marriages (by reasoning that it was up to the parliament to legislate on the domain of marriage), courtroom discussions on LGBTQ issues have sparked public dialogue."The point which I am making is, this dialogue which takes place in the court paves the way for a future and a more evolving society. Already people - when I visit law schools, when I talk to civil society activists and when I talk to both ends of the spectrum, the liberal and not-so-liberal - everyone is conscious of the fact that there is a change which is taking place in India on the aspect of LGBTQ relationships. And part of the reason for this change is the prominence which the debate on the subject assumed as a result of the dialogue in the court itself,” CJI Chandrachud said..On the Supreme Court’s “sinners have a future” remark for rape convictDuring the Q&A session at the event, CJI Chandrachud also responded to a question on a controversial observation made by a three-judge Bench in 2022.While commuting the child rape convict’s death sentence, the Court’s judgment had quoted Oscar Wilde and recorded, “the only difference between the saint and the sinner is that every saint has a past and every sinner has a future.”When asked about this judgment and its language, CJI Chandrachud acknowledged that the remark in question was inappropriate. This is why the Court has self-corrective mechanisms, he added. “That's why there is a corrective mechanism in the courts really, to ensure that verdicts which are otherwise erroneous are corrected. But apart from the process of judicial correction, I must share with you that we are doing something in terms of sensitising judges. Why this kind of remarks are sort made in judgments? You know, (why has a remark like) ‘every sinner has a past’ been made a rape case? Which, as you rightly felt as a non-lawyer, and I agree with you, which was really an inappropriate remark to make," he said. He added that the Supreme Court has now released a gender handbook to tackle the larger issue of inappropriate remarks made by judges in their orders/ judgments.