Two out of Thirty; What Ratio is it My Lord?

Dr. Mariamma A K

31 May 2013 4:51 AM GMT

  • Two out of Thirty; What Ratio is it My Lord?

    On 17th March 2013, PTI reported a news item from Allahabad under the caption, “A nation that does not respect its women can never prosper: Chief Justice of India”. The report quotes, “A nation which cannot ensure respect for its women, can never prosper. It is heartening to see that women are coming to the forefront in all walks of life”. The Chief Justice of India said this on...

    On 17th March 2013, PTI reported a news item from Allahabad under the caption, “A nation that does not respect its women can never prosper: Chief Justice of India”. The report quotes, “A nation which cannot ensure respect for its women, can never prosper. It is heartening to see that women are coming to the forefront in all walks of life”. The Chief Justice of India said this on the sidelines of a function organized by the Allahabad High Court on the 150thbirth anniversary of renowned educationist, jurist and freedom fighter Madan Mohan Malavya. He also expressed concern about the number of pending cases across the country and suggested that “Governments in States should take steps to increase, if needed even double the number of judicial officers posted in districts, citing the example of Allahabad High Court where the sanctioned strength is 160 but the number of judges is about half of that. ”One would have wished, if Chief Justice of India had added, ‘out of them only four are women Judges’ but he left it unsaid, perhaps because it is an unsavory truth.

    On 12th April 2013 two more Judges viz.  Justices Mr. Arjan Kumar Sikriand Mr. Sharad Arvind Bobdewere were elevated to the Supreme Court of India and thus the total number of Judges has reached 30 including the Chief Justice of India against the sanctioned strength of 31 Judges. Before this, on 8th March 2013 Justice Mr. Kurain Joseph and Justice Mr. Pinaki Chandra Ghose; and on 24th December 2012 Justice Mr. Vikramajit Sen, Justice V. Gopala Gowda and Justice Mr. M.Y. Eqbal  were also elevated to the Supreme Court of India. In other words, since December 2012, seven judges were elevated to the Supreme Court of India out of which not a single one is a woman Judge. Why it is so?

    From the list of Judges published in the Supreme Court’s web site, it can be seen that there are only two women sitting judges, viz. Mrs. Gyan Sudha Misra and Ms. Rachana Desai. The first woman President of India, Smt. Prathibha Patil had famously asked ‘Why there is no woman Judges in the Supreme Court?’  and only then Mrs. Gyan Sudha Misra was elevated on 30th April 2010 to the Supreme Court and later Ms. Rachana Desai was elevated on 13th Sept 2011.

    If we trace the history of Supreme Court of India, it can be seen that ever since the inception of Supreme Court, only five women could be sworn in as Judge of the Supreme Court including two sitting judges. Whereas the seniority list consists of 137 Retired Judges (male). In other words, in the seniority list published in the Supreme Court website, 71st entry is Ms. Fathima Beevi (6.10.1989 to 29.4.192), the first woman Judge, on 88th Mrs. Sujata V. Manohar (8.11.1994 to 27.8.1999) and 106th Mrs. Ruma Pal      (28.1.2000 to 2.6.2006). Again, the total number Retired Chief Justices are 38 from Justice Kania to Justice Kapadia, yet till date not a single woman Chief Justice in India!

    Not surprisingly, both the first woman Judge and the first woman Supreme Court Judge of India were from the highly literate State of Kerala. First one, Ms. Anna Chandy joined Law School in 1927 and joined the Bar in 1929. She became the first Grade Zila Munsif in 1937 and became the first District Judge in 1948. She was probably the second woman in the world to become a High Court Judge in 1959 (Kerala High Court) and she held the post till 1967. Second one, Ms. Fathima Beevi was the first woman appointed to Supreme Court of India in 1959 and the first Muslim woman to be appointed to any higher judiciary. She was the first woman Judge of Supreme Court of India and also in Asia. But the paradox is that today in the Kerala High Court there is no woman Judge from Kerala.

    Let us now take a look at the number of women Judges sitting in various High Courts (as given on the web site of Law Ministry):

    Sl. NoName of High CourtNo.of Male JudgesNo. of Woman JudgesTotal No. of Judges including Chief JusticeSanctioned StrengthPercentage of Women Judges from Sanctioned strength
    1Allahabad HC8304871602.5%
    2Andhra Pradesh240125492.04%
    3Bombay450651758 %
    4Calcutta360440586.89 %
    9Himachal Pradesh0900091100
    10Jammu & Kashmir1200121400
    11Jharkhand100111205 %
    12Karnataka340236504 %
    13Kerala2901 ( C.J)30382.63 %
    14Madhya Pradesh340236434.65%
    17Meghalaya0201 (C.J)030333.3%
    19Patna3103 (C.J)34436,97%
    20Punjab & Haryana390443685.88%
    21Rajasthan2704314010 %

    From the above table, it is clear that in many High Courts there is not even a single woman Judge. Only Kerala, Meghalaya and Patna High Courts got woman Chief Justices. In a country with more than 130 crore population, of which nearly half are female, the total strength of woman Judges in all the High Courts is only 53 (5.84%) and only 2 in the Supreme Court of India!

    What is the Procedure for Appointment of Judges?

    In the Constitution of India, Article 124 and 217 deal with appointment of Judges of the Supreme Court and the High Courts, respectively. It reads as follows:-

    “ 124….(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of, the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years”.

    “217…(1) Every Judge of the High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice of the High Court, and  shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of sixty-two years”.

    On 30th Dec 1981 in S.P. Gupta v. President of India and Others (AIR 1982 SC 149) Justice P.N. Bhagawati opined “we would rather suggest that there must be a collegium to make recommendation to the President in regard to appointment of a Supreme Court or High Court Judge. The recommending authority should be more broad-based and there should be consultation with wider interests. If the collegium is composed of persons who are expected to have knowledge of the persons who may be fit for appointment on the Bench and of qualities required for appointment and this last requirement is absolutely essential-it would go a long way towards securing the right kind of judges, who would be truly independent in the sense we have indicated above and who would invest the judicial process with significance and meaning, for the deprived and exploited sections of humanity.”

    Further, on 6th Oct 1993, in Supreme Court Advocates-on-Record Association and another v. Union of India (AIR 1994 SC 268) it was held that “primacy, in the matter of appointment of Judges to the superior Courts, vests with the Judiciary. This being the present state of law, it is the Chief Justice of India and his consultees in the superior Judiciary who are to select in consultation with the executive- the next Chief Justice of India. They have to lay down the standards of objectivity and rules of appraisal. We can safely bid good-bye to the ‘seniority alone’ rule and hold that the selection of the Chief Justice of India be made on the basis of merit alone”. Again it was held that “appointment to the Supreme Court are to be made on the basis of ‘selection on merit’, but in the process of selection the senior Judge of the Supreme Court is entitled to be considered in preference to the junior one. We reiterate the merit shall always be the out-weighing factor in the selection of Judges to the Supreme Court of India”.

    Supreme Court in the above case explained process of consultation under Article 124(2), as ‘consultation with the Chief Justice of India as head of the Judiciary’. The opinion of the Chief Justice of India is not his individual but formed collectively by a body of men at the apex level of the Judiciary. Such collectivity shall consist of the Chief Justice of India, two senior-most Judges of the Supreme Court and the senior Supreme Court Judge who comes from the State. “The opinion of the Chief Justice of India, forwarded in the manner indicated above, shall be primal. No appointment can be made by the President under Article 124(2) and 217(1) of the Constitution unless it is in conformity with the opinion of the Chief Justice of India”. It is also mentioned that as per the affidavit of Mr. S.K. Bose dated 2nd April 1993, out of a total of 547 appointments made in the last decade, 540 were in accordance with the opinion of the Chief Justice of India and the remaining seven were not in such accord.

    Dr. B.R. Ambedkar before the Constituent Assembly had said, “It seems to me, in the circumstances in which we live today, where the sense of responsibility has not grown to the same extent to which we find it in the United States, it would be dangerous to leave the appointments to be made by the President, without any kind of reservation or limitation, that is to say, merely on the advice of the executive of the day. Similarly, it seems to me that to make every appointment which the executive wishes to make subject to the concurrence of the Legislature is also not a suitable provision”.… “ with regard to the question of concurrence of the Chief Justice, it seems to me that those who advocate that  proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person. But after all, the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have, and I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief justice which we are not prepared to vest in the President or the Government of the day. I therefore, think that is also a dangerous proposition.”

    In the back drop of the recent Delhi Rape Case and the consequent nationwide protests, Government of India passed the Criminal Law (Amendment) Act 2013 amending IPC, Cr. P.C and Evidence Act to bring in more stringent punishments to ensure safety and security of Indian women, especially when the offences against women and children are escalating at a fast rate. It is pertinent to note here that section 26(a)(iii) of the Criminal Procedure Code says that “any offence under section 376 and Sections 376-A to 376-D of the Indian Penal Code shall be tried as far as practicable by a Court presided over by a woman”.

    On 5th Jan 2013, the Chief Justice of India, Altmas Kabir, was kind enough to instruct all the High Courts in India to start ‘Fast Track Courts’ to speed up the trial of sexual offences cases against women and children. Chief Justice in his letter pointed out that ‘recent tragic incident involving the brutal gangrape and subsequent death of a Delhi girl has left an indelible mark and shaken the conscience of the nation.” He further asked the High Courts to ensure that the cases relating to offences against women are fast tracked and taken up for hearing “on a priority basis”, both at the High Court and District Court levels. He also warned that delay often made the deterrent effect of law insignificant. Time has come when these cases have to be dealt with expeditiously, lest we fail in our endeavour to arrest the sharp increase of crimes against women. At present 3,670 posts of trial judges (Times of India 8th Jan 2013) and 292 posts of High Court Judges are lying vacant (Ministry of Law & Justice web site).

    In a first of its kind initiative in the judicial system in the country, the High Court of Kerala headed by the woman Chief Justice Manjula Chellur on 31st January 2013 constituted a Single and Division Bench to exclusively hear cases against women and children. But there are no women Judges in Kerala High Court today to lead the special bench as the last woman Judge retired on 23rd March 2013, before constituting the bench. Of course, the Chief Justice of Mumbai High Court has also traversed a degree ahead as he has directed that ‘all appeals against acquittal of rapists will be heard by a bench of women Judges with effect from 14th Jan 2013’ (Times of India dated 20th Jan 2013). Mumbai High Court can afford to do so as there are 6 women Judges on its roll. But in many High Courts there is either one woman Judge or not a single one!

    The first all women Fast Track Court established in Malda in West Bengal and Maharashtra also established several Fast Track Courts to ensure speedy justice to the female victims. But the question is how many Courts in India have women Judges to hear cases against women as stipulated in the Code of Criminal Procedure? Besides, when Fast Track Courts start functioning all over the country, the disposal of cases at the trial Courts will be completed in a time bound manner and naturally appeals and revisions will be filed both in the High Courts and Supreme Court respectively. But it is quite unfortunate that there is no special bench of women Judges in High Courts as well as in Supreme Court to hear those cases of offences against women and children. The Indian Parliament in its wisdom has incorporated Section 26 (a) (iii) with effect from 31st Dec 2009, but that remains in the statute book as dead letter since there are not adequate number of women judges at all levels to hear those cases.

    The presence of a woman Judge in the Supreme Court was very much felt recently on 31st Jan 2013, when the Supreme Court Bench consisting of Justice Mrs. Gyan Sudha Misra and Justice A.K. Patnaik cancelled the order of Kerala High Court in the Suryanelli case (Joseph v. S.I. of Police Munnar 2005) wherein the High Court acquitted 34 persons accused of gang rape of a minor girl aged 16 years. The finding of the High Court was that the victim ‘was not an unwilling partner’. Justice Basant who gave the judgment in the Kerala High Court justified his stand and even termed the victim minor girl as a deviant and a child prostitute (Indian Express 10th Feb 2013). The Supreme Court expressed shock over the finding of Kerala High Court and remanded the matter for fresh hearing (State of Kerala and Others v. Joseph and Others).

    When sufficient numbers of women advocates are available in each State, what prevented the male dominated collegium to elevate the female counter parts to the High Courts and Supreme Court is an inexplicable puzzlement. If vacancies are notified through advertisement for the post of High Court or Supreme Court Judges, it can be said that women lawyers failed to apply for the same or if based on written test, again it can be argued that women candidates failed to qualify in the written test. It will be removed from reality when the answer is ‘owing to dearth of eligible women candidates’ the ratio fell askew. No spell binding rhetoric could save the ‘immaculate process of selection’.

    It is, therefore, highly necessary to have adequate women representation in each High Court and also in the Supreme Court. At least one Bench of women Judges is required in every High Court and also in Supreme Court to hear offences against woman and children in compliance of the provisions of Criminal Procedure Code to ensure justice to women and child victims of atrocities.

    On 4th April 2013, US President, Mr. Obama praised Kamala Harris of Indian origin for her contribution as the California Attorney General. It is ironical that Indian Kamalas are waiting in the corridors of High Courts and Supreme Court of India expecting anxiously for their elevation.

    Time has now come for the appointment of women Judges in all the High Courts and Supreme Court as the present system has not been kind towards the women folk. In the past six decades only a miniscule minority of women Judges adorned the higher judiciary, but in order to march ahead with time especially to tide over with the alarming proportion of crimes against women and children, the ’notoriously skewed ratio’ calls for correction, lest the exhortation of Chief Justice of India at Allahabad about gender justice remains an empty pet theme of women empowerment. Till the tilted scales of balance are set even given the demography of this great nation, original Indian Kamalas will have to wait patiently expecting their turn for the judgment seat.


    Dr. A. K. Mariamma is Principal at Balaji Law College Pune. Mariamma has a rich academic experience of 18 years and litigating experience of 5 years.  
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