INTRODUCTION
A statute is a law established by an act of the legislature. Courts play a major role here by applying the statutes according to the recognised rules. Interpretation by the court refers broadly to the removal of ambiguity and the ascertainment of the meaning of the enacted law. The process of interpretation can either be a literal understanding of the words used or a liberal approach that gives a broader perspective to the law.[1] This is a very crucial function of the courts as it is a way through which they keep abreast of the time. What may be considered as a rigid law can be taken into a new light and amended accordingly to keep pace with the changing society. Judiciary uses its discretion to fill the lacunae in existing laws.
The court is at the liberty of using any stem of interpretation that may aid in resolving the dispute while ensuring that it does not encroach upon the functions of the legislature. The role of the judiciary is not to make a law but to expound it. In some cases, a general rule governs the cases of the same kind.[2] However, there has been a lack of inclusion of women in the judiciary due to which the lens significantly remains narrow. The rationale is primarily based on the male perspective. This is why a need for diversification is felt. The lack of diversity in the judiciary undermines public faith on the grounds of gender and inclusion.[3] The association of authority with masculinity makes it a tough path for women; they are often considered outcasts in the professions that signify power and authority. While it is still feasible for women to get enrolled in the Bar, an insurmountable task remains to climb up the judicial ladder.
THE CAUSES OF FEWER WOMEN REPRESENTATION IN THE JUDICIARY
The most significant reason for the under-representation of women is the constructed image of assertiveness and dominance attached only to men. This is why women are considered unsuitable for the post. Even for the appointment as a district judge, a minimum experience of seven years is required. However, the familial pressures do not allow women to practice continuously for seven years. Coupled with it are the inflexible hours and frequent transfers constitutionally permitted under Article 222 of our constitution which makes it unfeasible for women to pursue this profession. Added to all these is the lack of conductive infrastructure, for example, toilets, and the difficulty in getting maternity leave which compels women to join the corporate sector instead.
THE IMPACT OF THE DEARTH OF WOMEN IN THE JUDICIARY
The normative judgements are often set on the male experience. For instance, the 498-A judgment.[4] The recent judgement mandates the verification of the complaint by the Family Welfare Committees at the district level. This further adds one more layer of structural barrier in making justice accessible to the aggrieved woman. There are so many intricate problems that were overlooked here. The inordinate delay in arriving at a decision renders the evidence obsolete.[5] Added to it are the constant pressure of reconciliation and the bleak witnesses available in the case.
Another pertinent judgment in this regard is the Bombay High Court’s judgment which ruled that pressing the breast of a 12 year old girl without removing her clothes will only amount to outraging her modesty under Section 354 of IPC and not sexual assault under Section 7 of POCSO. The sexual intent of the perpetrator is not even taken into consideration, and thus can have devastating results.
Another case is the Hadiya judgment wherein the woman converted to Islam and married Shafeen Jahan. Her family was against this decision and filed a writ petition in court contending it to be a case of forcible conversion. Rather than assessing the individual merits of this case, the presiding judge drew an analysis to another petition and nullified the marriage, rendering the woman to her father’s custody. The marriage was held void despite the woman being of majority and sound mental capacity to be able to enter into a valid contract of marriage.
In 2020, Madhya Pradesh High Court granted bail to a molester on the condition that he will go with a box of sweets to the victim’s house and get a rakhi tied from her. Such absurd judgment points to the non-emphatic approach of the judge. These judgments lead one to think about how the multiplicity of voices could have led to a broader interpretation of the law from a diverse perspective.
THE WAY AHEAD
Justice Leila Seth led The Verma committee formed after the 2012 Nirbhaya gang rape case. The committee spoke in favour of speedy trials and more stringent punishments for sexual offences. She was also a part of the bench that made amendments to the Hindu Succession Act, 1956 which spearheaded the inheritance rights of the women over ancestral property. Thus we need to assess the judiciary’s competence on the basis of merits of judgements, not by the gender composition of the bench. The prerequisite is abandoning the stereotypical gender outlook.
It is of utmost importance to make the bench more inclusive as women bring in a more emphatic approach. But that needs to be done in a phased manner, right from sensitisation at the school level. Moreover, rules should be made more flexible so that women can continue practicing even after marriage. An extensive data needs to be maintained on the distribution of women in various tribunals and courts at all levels. This will help in highlighting the clear picture of the gender disparity prevalent in the judiciary and the targeted reforms at the root level.
44% of the qualified candidates in the Common Law Admission Test (CLAT) exam, 2019 were girls. Yet there is an apparent hesitance in opting for the field of litigation. We need a dedicated gender specific course to be taught compulsorily at law schools to foster gender sensitisation and make courtrooms conducive for women.[6] There were many institutions in the society where women participation seemed to be utopian. However, with the advent of time, these were transformed to be egalitarian and inclusive. Adequate chances for women to handle cases and prove their mettle may go a long way in making this field more egalitarian.
Author’s Name: Navya Bassi (National Law University, Odisha)
[1] AB Kafaltiya,Interpretation of Statues(2nd edn, Universal Law Publishing 2017)
[2] Rylands v Fletcher[1868]UKHL 1,[1868]LR 3 HL 330
[3] Dermot Feenan, ‘Women Judges: Gendering Judging, Justifying Diversity’(2008)35(4)JSTOR https://www.jstor.org/stable/40206863 accessed 22 October 2021
[4] Varun Chirumamilla, ‘We Underestimate The Power of Caste and Majoritarian Dominance’(Bar and Bench, 20 May 2018) https://www.barandbench.com/interviews/conversation-kalpana-kannabiran accessed 23 October 2021
[5] Rajini Menon,’Is Section 498A Anti-women?’(Oxfam India, 2 Aug 2017) https://www.oxfamindia.org/blog/section-498a-anti-women accessed 23 October 2021
[6] Yoshita Sood and Seerat Showkat, ‘Ramifications of The Dearth of Female Representation in Indian Judiciary: An Appraisal (2018) 1(3) IJPSL http://ijpsl.in/wp-content/uploads/2021/03/Ramifications-of-the-Dearth-of-Female-Representation-in-Indian-Judiciary-An-Appraisal_Yoshita-Sood-Seerat-Showkat.pdf accessed 23 October 2021
