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Appointment of 11 women as Senior Advocates a watershed moment: Sr. Adv. Mahalakshmi Pavani writes on Women's Day

By Advocate Mahalakshmi Pavani      07 March, 2024 07:18 PM      0 Comments
Appointment of 11 women as Senior Advocates a watershed moment Sr Adv Mahalakshmi Pavani writes on Womens Day

NEW DELHI: An illustrious progeny of the Marathi soil Dr.Dhananjaya Yeshwant Chandrachud, Hon’ble Chief Justice of India created history by designating 11 women lawyers as Senior Advocates which is a sharp contrast to the dismal number of 12 women lawyers being designated in 75 years of Indian Independence.  The recent appointment of 11 women as Senior Advocates to the Supreme Court of India indicates the changing mindsets of men at the helm of affairs.

Whilst this marks a watershed in the history of the Hon’ble Supreme Court of India’s history in retrospect it also compels one to rethink the issue of women’s reservation. Dating back to 1992 wherein the 73rd Amendment provided that one-third of the seats in all Panchayat councils, as well as one-third of the Pradhan positions, must be reserved for women. 

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The fabled shattering of the glass ceiling seems a distant dream yet still given that representation of women in other organs of the Government remains abysmal to date. The deficient representation of women in Indian law enforcement manifests into a rising assault on the peace and security situation of women. 

The fundamental right of Indian citizens to personal liberty and life is threatened to a greater extent when it comes to women compared to their male counterparts. 

The India Justice Report, 2019 by the Centre for Social Justice, Common Cause, Commonwealth Human Rights Initiative (CHRI), DAKSH, TISS-Prayas, and Vidhi Centre for Legal Policy in association with the Tata Trust revealed women are poorly represented across the Justice system. 

The India Justice Report, 2019 made incredibly vital revelations concerning the dire reality faced by the women in India. Women account for a mere 7% of the 2.4 million police persons in the country, but 6% are at the officer level. On the other hand they account for 28% in the lower judiciary, however this falls to 12% at the High Court level. Women, who now have a mandatory presence in police stations and have exclusive functions when gender-based crimes are reported, are woefully in short supply. 

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There is a total of just over 7%women in the police. Only four states and four Union Territories have more than 10% women in their police forces. Similarly, only 17 out of 34 States and Union Territories where the share of women in prison staff was above 10%. Across India are just 272 women jailors and women officers of the rank of deputy superintendent. Nationally, more than half (56%) of all women is grouped into the guard or warder category, and 12% at the ministerial non-gazetted levels.

The reality of the judiciary is far from ideal. The presence of female judges portrays the institution that upholds equality of law and dispenses justice as an equal opportunity space driven by fair, meritocratic, and non-discriminatory practices and norms. I have been actively advocating for gender parity on the bench since I first made a fervent plea before the 5 Judge Constitution Bench hearing the NJAC matter. Although the judges were receptive, they did not think it necessary to take my submissions seriously as I was just a nobody pleading on behalf of women when there was a galaxy of stalwarts arguing before them and shockingly none of the stalwarts thought it wise to ask for women strength to be increased on the bench in the Subordinate and higher judiciary. 

The bench asked me what according to you should be the percentage of women because even the parliament had not even given us 33%. So, without batting an eyelid I said 50% and left the Bench and the court hall shocked, vividly remembering them staring at me in utter disbelief with their jaws dropping. Despite my sincere efforts to impress upon them that women were no less in any way than their male counterparts, more industrious, multitaskers with a deep sense of honesty, integrity, and commitment in the work, sadly they didn’t deem it fit even to make a mention about women in the judgment. 

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Today I am proud of the fact the percentage of women have increased substantially in the subordinate judiciary.

Women on the bench exert immense influence on the quality of judicial decision-making, because of the inclusion of their combined life experiences which necessarily allow a wider variety of human experiences into the process of adjudication. Despite wide acceptance of the value of gender diversity, the actual presence of women in state judiciaries is disenchanting. Adoption of affirmative action for women judges in their High Courts is negligible. 

While Andhra Pradesh, Bihar, Chhattisgarh, Jharkhand, Karnataka, Odisha, Rajasthan, Tamil Nadu, Telangana, and Uttarakhand provide for reservations in the subordinate judiciary, however, these range from 30% to 35%. In 9 out of 18 large and mid-sized states, 22 the share of women judges in subordinate courts exceeded 30%. Telangana (44 %) and Punjab (39 %) had the highest share of women judges, and Bihar (11.5 %) and Jharkhand (14.5 %) had the least. States having affirmative action policies, namely Bihar, Rajasthan, and Karnataka had not met the mandated number. 

Women comprise 11.5 % of judges in subordinate courts in Bihar, 26.5 % in Rajasthan and 28.2 % in Karnataka. Irrespective of the size, the glass ceiling is well and truly in place in all states. Nationally, the share of women judges falls from 28 % in subordinate courts to about 11 % in High Courts. As of June 2018, seven states did not have a single woman judge in the High Court. Among the large and mid–sized states, at just above 44 %, Telangana had the largest share of women in the subordinate courts, but at the High Court level, this drops to a meagre 10 %. Similarly, Punjab with 39 % at the subordinate level drops down to 12 % in the High Court. 

This pattern is apparent everywhere, with only Tamil Nadu breaking the trend with a high number of women at the High Court level (19.6 %), and more women than its quota of 35 % in the subordinate courts. Among the small states, Meghalaya (74 %) and Goa (66 %) had the largest share of women judges at the subordinate courts level. However, Goa’s share at the High Court level was just 12.68 %. Sikkim, an outlier, demonstrates a high share of women at both levels, with 64.71 % in the High Court and 33.33 % at the subordinate court level. Speaking of absolute numbers, this would be 1 female judge of 3, at the High Court-level, and 11 female judges out of 17 at the subordinate court level.

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The Constitution (One Hundred and Twenty-Eight Amendment) Act, 2023, proposes to introduce women's reservation in the Lok Sabha, the upper houses of the state legislatures, and the Delhi legislative assembly. The Lok Sabha and the Rajya Sabha passed the Constitution amendment bill with near unanimity. 

The said Amendment Act, 2023 seeks to introduce Articles 330A and 332A wherein the Reservation of seats for women in the Legislative Assemblies of the States and the Reservation of seats for women in the Legislative Assemblies of the States respectively. 

The reservation shall be effective after the census conducted after the commencement of this Bill has been published.  The Bill is promising in terms of promoting gender equality and women’s empowerment but actually a betrayal of the women’s movement as there are several challenges in this Bill. There is no straight-jacketed pathway from having reserved quotas for women to achieving political empowerment.

It is upon the census that delimitation will be undertaken to reserve seats for women.  The said reservation shall be provided for a period of fifteen years and will lapse thereafter unless renewed.   However, this shall persist till such date as determined by a law made by the Parliament. This is the first time that they have put a condition stipulating when the same can be implemented. 

In retrospect, previous instances where reservations were introduced one finds history replete with situations where reservations were unreservedly passed. For instance, the period of reservation of seats for members of the Scheduled Caste/Scheduled Tribes (“SC/ST”) and the Anglo-Indian communities in the Lok Sabha and the State Legislative Assemblies on 05th January 1960 qua the 8th Constitutional Amendment with the introduction of article 334 was without any census nor any conditions were stipulated therein as opposed to the fetters being sought to be introduced qua the introduction of Article 334A, 128th Constitutional Amendment Act, 2023. Similarly, the 45th Constitutional Amendment Act passed on 25.01.1980 and the 62nd Constitutional Amendment Act dated 20.12.1989, extended the period for reservation of seats for the members of the SC/ST and the Anglo-Indians. This doesn’t end here. In August 1990 through an office memorandum, the Reservations of up to 27% was introduced for the Socially and educationally backward masses.

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The 73rd and 74th Constitutional Amendment Acts passed on 24th April 1993 and 1st June 1993, respectively, Parts IX and X-A were introduced wherein reservation of 1/3rd seats for women in local body elections was provided, notwithstanding the provision of any scientific data nor census.

The 77th Constitutional Amendment Act, dated 17.06.1995, technical amendment for safeguarding the promotion of SC/ST candidates in employee promotion without the backing of any scientific evidence. The 81st Constitutional Amendment Act, dated 09.06.200, reservations for filing of backlog vacancies extended to the SC/ST candidates, which again was revisited by the 85th Constitutional Amendment Act, dated 17.06.1995 wherein Article 16 was amended to protect the seniority of SC/ST employees. Furthermore, the 93rd Constitutional Amendment Act dated 20.01.2006, Article 15 was amended to introduce reservation for Other Backward Classes (“OBCs”) in government as well as private education institutions.

The 95th Amendment Act, dated 25.01.2010 again revisited Article 334 and extended the seats for SC/ST in the Lok Sabha and the State Legislative Assemblies.

The 10% reservation quota was extended to Economical Weaker Sections (“EWS”) in all educational institutions as well as Government/Public services via the 103rd Constitutional Amendment Act, dated 14.01.2019. While these amendments have been watershed in alleviating the plight of the socially subjugated what is pertinent to highlight herein is that the aforementioned amendments were introduced without any fetters of census data.          

It is rather perplexing as to why the Women Reservation Bill of 2023 seeks to import such fetters when it comes to the reservation of seats for women, more so when women have been and still are scapegoats of social, political, and economic inequity.

In 2003, a study conducted by Raghavendra Chattopadhyay and Esther Duflo on ‘The Impact of Reservation in the Panchayati Raj: Evidence from a Nationwide Randomised Experiment,’ revealed that reservation for women in panchayats proved that women elected under the reservation policy invest more in the public goods closely linked to women’s concerns. There is a likelihood of it being raised to 50% after 25 years as people have realized that women are capable and efficient administrators. Though a late realization, better late than never!

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A cooperative approach between the executive and judiciary to promptly fill vacancies and ensure diversity could kill two birds with one stone. All of this may go some way towards reducing the pile-up and the time taken to clear cases through the courts. Lastly, there is an overall need to bolster the envelope for more evidence-based judicial reforms. Improvements in access to justice must be grounded in from reliance on granular-data driven interventions whose value is seen in other avenues of social justice, and rights such as health and education. Speaking of women as panel lawyers, only 20 out of 36 states and Union Territories where the share of women among panel lawyers is above 20%.

The Hon’ble Apex Court currently deliberating the issue of immediate implementation of a constitutional amendment seeking to introduce one-third of women's quota in parliament, and state assemblies, ahead of the General Election 2024. During the course of hearings on the 16th of January, 2024 I urged the Hon’ble Court to direct formal notice to be issued raising the apprehension it may become infructuous. The court directed the Union to file its reply waiving formal notice in consequence of which the Hon’ble Bench listed the hearing after three weeks.

Justice Leila Seth in her book ‘People’s Rights in Modern India’ rightly quoted, “Just as one learns a new language when one goes into a new country, so must we learn the language of equality in the hope and with the desire to eliminate injustice.”

Women's political empowerment is pivotal for eradicating prejudice and gender inequity. Whilst women’s reservation and passage of the Constitutional Amendment Act of 2023 is a beacon of hope, what needs to be appreciated is that implementation of the reservation is only the first step towards inclusivity and an equitable socio-political landscape for women in India.

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My sincere request to the Hon’ble Prime Minister Sri. Narendra Modi would like to change the slogan from “Beti Bachao Beti Padao” to “Beti Padao to Beti Badao” because empowering women and encouraging women's participation in every sphere of work will take the country forward as women are equal stakeholders and they constitute 50% on India’s population.  The way forward is to remove the word reservation from the Nari Shakti Adhiniyam Act,2023, and say Representation and implement it without any fetters whatsoever. “Beti Bachao” indicates that India is a primitive nation and the notion needs to be wiped away as India is a super power where countries across the globe look up to India.

The way forward is to remove the word reservation from the Nari Shakti Adhiniyam Act,2023 and say Representation and implement it without any fetters whatsoever.  

Let the words ‘Narishakti’ and ‘Aatmanirbharta’ be translated into shedding off stigmatization and pigeon-holing women into certain job types because we need more women as law enforcers and more than anywhere, we need them at all levels of governance- from the Panchayats to the Prime Minister’s Office.

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