CREATING A GENDER SENSITIVE JUDICIARY

The idea of judiciary is an idea of a state or an arm of it that ensures justice is upheld, in all its manifestations, throughout that state. The judiciary of a state is bound by the most sacrosanct ideals of any progressive society. A progressive society which adapts to change in tandem with the changes taking place around it. Therefore, the Judiciary of a state is also expected to show its wisdom in recognizing that the idea of justice is an evolving concept which needs to cater to equality in terms of what it represents in the society at that very point in time. As the social indicators of development take priority in a society, the state is seldom burdened with the faith of its citizens that each individual’s interest will assume significance in the eyes of its institutions. After all, the state acts through its institutions and agencies. Amongst the most sacred threads of morality in a society, one that finds an incredible amount of social strength is the concept of gender-based equality. That no person can be treated any differently than any other, as an equal citizen of that state. The idea of gender justice is a practice of equality that ensures rights and privileges do not create differences within and between the gendered as well as non-binary communities. It recognizes the historically persecuted people and gives them a platform to compete equally with any other privileged citizen of the state. In a sense, equality does not equate to sameness here but is equivalent to rationalizing the inherently different status/position of each individual in a society. Indeed, the judiciary is not only the most assertive but by far the most influential institution of a democratic state when it comes to balancing gender justice and gender equality. The unwavering faith of the citizens in their judiciary is symbolic of this assertive influence that it has in the society. But the larger question here is – how to create such a gender sensitive judiciary? A judicial system that works to eradicate the social obstacles for every disadvantaged citizen, helps in ensuring fairness for all. In such a system, the judges should endeavor to create a model for the society which presents a yearning to demolish chains of inequality imposed on every ill-fated member over centuries. The lawyers should be able to empathize with the suffering of each such citizen and should be willing to fight for the recognition of their independent identity and their human rights. The common man should be ready to give up their indifference built over a lifetime and should show eagerness to accommodate them with an unreserved compassion. Thus, sensitization of every contributor to the judiciary is vital in order to bring a radical change in the gender roles attributed by a prejudiced patriarchy. Now that we understand what a gender sensitive judiciary may comprise of, let us try to comprehend it in the real-world context. In the recent Sabarimala judgment that placed its cards on equality of access to Lord Ayyappa of Sabarimala for women, clearly underscored the value of constitutional morality over and above religious morality. This judgment even if not acceptable to a large section of the Indian society sends a clear message down the rung that equality is not qualified by customary practices related to worship of a particular deity. The only dissenting opinion, which happened to be of the only woman justice on the panel, countered with the reasoning that it would be wrong to apply rationality to the practice of religion. In other words, any religion and its practices are based on faith which does not warrant proof of logic or rationality. The idea was to allow judicial deference in order to accommodate the rules of worship within the constitutional scheme of freedom to practice any religion. The biggest takeaway in my opinion is the boldness with which the judges overturned majoritarian religious sentiments to breathe freshness in the green shoots of gender equality which have only recently started taking roots in our society. In a different context, the judgment of triple talaq too falls in line with the idea of gender justice which the Constitution of India has envisaged. In a 3:2 majority judgment of Shayara Bano v. Union of India & Ors., the apex court struck down the customary practice of ‘talaq-e-biddat’ as unconstitutional as it not only lied outside the sanctions of Holy Qur’an but also violated the Right to Equality under Article 14 of the Indian Constitution. The majority bench could never reconcile the concept of allowing a man to divorce his wife in three consecutive utterances of the word “talaq” without any concern for the wife’s interests or well-being. In layman’s terms, the judgment marked the beginning of the reformation of Muslim personal laws which have survived under the protection of the male-dominated social & religious institutions. The minority opinion, while recognizing the social evil, deferred to the authority of the legislature in bringing a relevant law as representation of people’s will. They provided injunctive relief on similar terms to last the period in which a legislative measure could be notified. In another landmark judgment, after a long struggle for LGBTQI+ rights, the Navtej Singh Johor’s case saw a very unique stand taken by the justices in administering the highly deserved redressal of grievances caused to the community from time immemorial. To say that the judges were sensitive would be an understatement, as Justice Indu Malhotra went to the extent of apologizing to the said community on behalf of the Indian state, which has consistently evaded its responsibility to provide a dignified life to all its subjects irrespective of their non-binary identity and varied sexual predilections. The justices in a concurring voice declared that the criminalization of private sexual acts between consenting adults is “irrational, arbitrary and manifestly unconstitutional”. The court partially struck down section 377 of the Indian Penal Code of 1860, saving other offences like bestiality, non-consensual act, statutory rape etc. Although this is only the beginning of state’s recognition of certain sections of the society, it is encouraging to see the social aspirations of the citizens already aligned with the idea and all stakeholders largely welcoming this judgment. The three judgments discussed above reflect on a highly sensitized approach of the apex court in addressing issues of social importance for the micro-minority of the state, which had been handed down an inhuman & totalitarian exclusion from the society for centuries. But the task only begins here as the district as well as the state level judiciary is still to show its flexibility in adopting the contours of the gender sensitive approach established by the apex court. After all, a common citizen is most likely to have a brush with judicial machinery present in his/her village, city or state. Therefore, till the time the said judicial values water down to the most basic unit of judiciary, a change in the systemic approach is highly unlikely. This brings us to an important subject of measures to be introduced to make judicial officers, the court mechanisms, the bar councils and the executing machinery to adapt to the gender sensitive demands of the society. As it requires the entire judicial vehicle to bring a wholesome reform in the practice, it is imprudent to proceed with a one-size-fits-all solution. It becomes imperative to look at each component of the judiciary from the perspective of the role it can play in a gender-sympathetic harmonization of the legal system. As the upholder of rights of a citizen in a state, the judiciary must be the first one to internally institutionalize a benevolent attitude towards the special needs of various genders. It requires a special focus on training the judicial officers to be thoughtful in their methodology to do justice in letter and in spirit. Justice which is not indifferent to the inert disadvantages that a female litigant or a member of LGBTQI+ community faces in their daily lives. Justice which bridges the gaps of inaccessibility and plugs the loopholes of legislative redundancy. It further requires the representation of each underprivileged citizen on the bench, the bar and in the enforcement agency. This will help in establishing their rightful place in the positions of authority and before the eyes of the common man. The visibility given to such citizens can instill the idea of relatability in the minds of the people and uproot the discerning outlook of the society. In a similar vein, the administrative staff of the court needs to be skilled in addressing their requirements, the legal processes demand an overhauling in order to make the courts easily accessible for them and the practices instituted at the bar and by the bar require reforms to make the workplaces less hostile and more amenable to them. The promotion of such deprived citizens in the higher legal education, and subsequently, the profession can simultaneously provide space for their entry and install their status as an equal in the judicial system. It is an absolute pre-requisite to consider, solely and fiercely, merit as a factor in appointing and elevating judges as well as designating seniority to practicing advocates so as to inspire the confidence in the younger generation of non-male lawyers that they too can reach up the ladder of success. And these are just the most apparent facets of the legal system which request improvements. It will take a lot more perseverance on the part of the judicial system and determined efforts to make the judiciary sensitive to desires of every member of the state. Any change in a democratic society takes time to mark its uniform presence. For that every member of the society shall have to come around to a uniform idea of equality and make efforts to restructure the system in a just and equitable manner. The task of making a gender sensitive judiciary is still a dimly lit tunnel in our society, whether it will open to light of success or more darkness at the end, is dependent on each one of us who join the legal system as judges, lawyers, administrative staff or even as concerned citizens of the state. For now, we must make small starts to brighten our judiciary tomorrow!

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