Buoyed by the efforts of vocal women and strong allies in men holding leadership positions, the justice system has begun its evolution into becoming a more gender-inclusive institution.
Supreme Court judge Justice Hima Kohli recently spoke about the extra effort women in the legal profession have to make in order to shatter the glass ceiling and excel in the field.
While speaking at an event held earlier this month, the judge said that there has been a running gender disparity between men and women in the legal profession, both in litigation practice and in law firm jobs.
Women judges, lawyers and litigants have, since India’s independence, faced hurdles in accessing our court system, and shattering the proverbial glass ceiling has been a herculean task.
Several district courts continue to operate without so much as washrooms for women to this day.
However, with the efforts of vocal women who campaign for their rights, and strong allies in men holding leadership positions, the justice system has begun its evolution into a more gender-inclusive institution.
In this article, we take a closer look at how the courts have changed for women in 2022 and how things can get even better for women in the legal profession in 2023.
A look back at 2022
A feminist Chief Justice of India
The country saw its first openly feminist Chief Justice of India (CJI) take office in November this year.
CJI DY Chandrachud has been a big votary for an inclusive judiciary and a feminist approach to the law.
The CJI has taken this approach both outside courtroom walls and inside them. This year, we witnessed a watershed moment in Indian jurisprudence when CJI Chandrachud authored a judgment that defended women’s right to bodily autonomy.
The landmark decision held that allowing termination of pregnancy beyond 20 weeks and up to 24 weeks cannot be denied to a woman merely because she is unmarried. Interestingly, this decision came within a few months of the United States Supreme Court’s decision to overturn Roe v Wade, stripping women of the right to safe abortion.
Apart from protecting the right of women across the country to access a safe abortion, the judgment also touched on issues integral to their personal liberty. The Court held that for the purposes of the Medical Termination of Pregnancy Act, marital rape has to be considered as falling within the meaning of ‘rape’ in order to save women from forceful pregnancy.
Through this judgment, the CJI also reflected an inclusive approach towards gender minorities by clarifying that the decision was applicable to women, as well those who identify as any other gender but require access to safe reproductive healthcare.
Better infrastructure
Over the course of 2022, various stakeholders called for improvement of infrastructure for women in courts and judicial fora across the country.
In September, the Delhi High Court ordered the State government to make facilities including separate toilets for women available to lawyers and litigants in consumer forums located in the capital.
The order was passed in light of the petitioner placing on record some photographs which revealed the abysmal conditions of the district consumer forums in Delhi-NCR.
In a significant move, the Delhi High Court also set up a creche facility within its premises this April.
Speaking on the importance of this move, former Supreme Court judge Justice Indira Banerjee said that it was a big leap towards equality and equal opportunity to women.
Pro-woman judgments
The Kerala High Court stressed on the need for men to change their attitude, particularly when it comes to the outlook towards crimes against women. The Court, while hearing a plea for anticipatory bail by a rape accused, recorded that crimes against women were continuing to increase, but the patriarchal mindset of society was changing.
Highlighting the importance of women’s safety, the Delhi High Court called for zero tolerance to anybody who intimidates a girl, woman or child. The Court opined that society should ensure that women do not have to fear when they step out of their homes. Setting a strong precedent against those who make public spaces unsafe for women, the Court refused to grant bail to a man who had been sentenced to life for the murder of a 21-year-old woman who had snubbed his advances.
In a decision that tackled systemic improvements for creating a more effective justice delivery mechanism for women, the Allahabad High Court said that a socially sensitised judge is a better armour in cases of crime against women than long clauses of penal provisions. It underscored that courts are expected to try and decide cases of sexual crime against women with utmost sensitivity.
The Supreme Court held that any person found conducting the archaic and unscientific two-finger test on a victim of rape or penetrative sexual assault will be guilty of misconduct. While doing so, the top court bemoaned that such tests continued to be conducted, and said that the test does not have any scientific basis but only retraumatises victims of sexual assault.
The Kerala High Court in July made a significant leap towards protecting sexual assault survivors by directing the State to set up a victim protection protocol. The Court passed the directions with the aim to ensure that survivors, irrespective of gender, are empowered and supported to work through their trauma and approach law enforcement agencies as comfortably as possible.
However, in what can be seen as a loss for young Muslim girls, the Hijab row which originated in the State of Karnataka remains undecided. In March, the Karnataka High Court upheld a Karnataka government order effectively empowering college development committees of government colleges in the State to ban the wearing of the Islamic headscarf on campuses.
While this decision was challenged before the top court, a two-judge bench delivered a split verdict. As this issue remains pending, waiting to be decided by a larger bench, school girls will lose precious years before they can see the insides of a classroom again.
Hopes and expectations from 2023
Gender-sensitive practices
Our courts must hasten to incorporate more gender-inclusive practices in their day-to-day functioning. It is essential that courts begin recognising challenges faced by not only those who identify as women, but also trans and non-binary lawyers.
In this regard, a cue may be taken from the recent representation made by a queer lawyer to the CJI requesting a modification in Supreme Court appearance slips so as to include an additional column where lawyers’ pronouns can be added.
For Advocate Rohin Bhatt, this step, if implemented, would “herald in a new era of a queer-friendly judiciary” that supports a shift in professional practice towards asking all people how they should be respectfully addressed, an aspect that should not be assumed based on name, appearance or voice.
More women on the bench
A truly gender-aware court system will remain a pipe dream until the bench sees a proportionate representation of women judges.
As per official data from the Government of India, only a mere 9 per cent of High Court judges across the country are women. In fact, five High Courts – those of Manipur, Meghalaya, Patna, Tripura and Uttarakhand – do not even have one woman on the bench. The High Courts of Delhi and Gauhati see the highest representation, though it continues to be woefully low at 17 per cent.
However, the number of women judicial officers at the district level does paint a better picture, with 35.56 percent of district judges across the country being women.