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Gender discrimination in Indian Judicial System: Causes and Implications

Authors:

Abstract

In all over the world about a half of women population of working age is in the labour force comparing to nearly 80 per cent of men. As per report of World Bank data in 2014, female (above 15 years of age) work participation rate in India is only 27 per cent. Women participation in Government services is meager due to gender discrimination, violence against women, other forms of women suppression and the patriarchal social structure. Gender discrimination in Government institutions for a long time not only restrains women to enter into these services but also leads to denial of justice, when women are aggrieved of their legal rights and approached Governmental institutions. Presence of males in government institutions discourages women to claim their legal rights by suggesting loss of chastity, reputation, prestige and other attributes depending on women's status. Masculinity tries to save male perpetrators for bribe or material benefits and suppresses feminine gender in all possible ways and thereby sets bad precedents, which lead to failure of implementation of all kind of women welfare laws. Political arena is completely inaccessible for women. It is persisting by male dominated attitude and practice for a long time. Legislature has meager representation of women, which denies chances for women to participate in the process of framing laws. Judiciary has very meager women representation, which is main cause for gender bias in all Governmental institutions. Introduction:
Dr.P.Ganesn et al. International Journal of Recent Research Aspects ISSN: 2349-7688, Special Issue:
Conscientious Computing Technologies, April 2018, pp. 698-702
© 2018 IJRAA All Rights Reserved page - 698-
Gender discrimination in Indian Judicial
System: Causes and Implications
Dr.P.Ganesn1, Dr.S.D.Dineshkumar2, Dr.P.Mariyappan3
1,2,3 (Sociology) Annamalai University
Abstract- In all over the world about a half of women population of working age is in the labour force
comparing to nearly 80 per cent of men. As per report of World Bank data in 2014, female (above 15 years of
age) work participation rate in India is only 27 per cent. Women participation in Government services is
meager due to gender discrimination, violence against women, other forms of women suppression and the
patriarchal social structure. Gender discrimination in Government institutions for a long time not only
restrains women to enter into these services but also leads to denial of justice, when women are aggrieved of
their legal rights and approached Governmental institutions. Presence of males in government institutions
discourages women to claim their legal rights by suggesting loss of chastity, reputation, prestige and other
attributes depending on women’s status. Masculinity tries to save male perpetrators for bribe or material
benefits and suppresses feminine gender in all possible ways and thereby sets bad precedents, which lead to
failure of implementation of all kind of women welfare laws. Political arena is completely inaccessible for
women. It is persisting by male dominated attitude and practice for a long time. Legislature has meager
representation of women, which denies chances for women to participate in the process of framing laws.
Judiciary has very meager women representation, which is main cause for gender bias in all Governmental
institutions.
Introduction:
Women status is an indicator of development. Women
participation in work force is necessary for economic
development. But, they cannot effectively participate in
development process due to gender discrimination and
violence against them. The ideologies, institutional practices
and the existing norms of society have contributed much to
women inequality. In spite of legislative measures adopted in
favour of women in our society, after independence the spread
of education and women’s gradual economic independence,
countless women still continue to the victims of violence.
(Ram Ahuja, 1999. P243.). There is a gap between legal
protection on paper and practical implementation, which is
responsible for women not daring to report, when they are
troubled by males. They knock the doors of the government
mechanism when they are seriously wounded or threat to life
or unable to bear the troubles from the offenders. They
deserve to tolerate their problems as they are dependent on the
wrong doers in the family, relatives, friends, neighborhood, at
work place etc., According to The Hindu news daily, there is
a lack of trust between police and public, which results in
several violence against women going unreported. (Rukmani,
The Hindu, p10). Democratic institutions are not successful in
creating confidence among the women folk that their
problems would be solved without any physical, mental
strain, monetary loss, loss of dignity or loss of reputation by
the legal mechanism. At this juncture this paper analyses
gender disparity in judicial system of our country, causes for
this kind of discrimination, its influence on contemporary
society and the possible solutions with the help of secondary
sources of data.
Patriarchal Bureaucracy
Almost all the institutions of government are patriarchal,
which is the fundamental cause for all sorts of gender
discrimination and sustaining it. In India women job in
Government Offices in 2013-2014, is 5 per cent only.
(Rukmani, The Hindu, 2015, p10) Bureaucratic institutions
have been occupied mostly by men, who in turn favour men
folk and neglect women folk willfully. Exclusion of women
leads to lacking or slow development, which unconsciously
leads poor implementation and management of
developmental policies.
Male Domination in Legislature
Law enacting institutions like parliament and state legislature
also restricted women’s entry, which leads to male
domination in legislature. Women political participation State
level is 8.71 per cent (359 /4120 MLAs), central level is 11.42
per cent (62/543 MPs) and Ministers in Central Government
is 8/66, State is 41/ 593 (Rukmani, The Hindu, 20015, p10).
Socio- cultural, economic and political environment are not
feasible for women to participate in politics. Domestic
responsibility and restricted familial roles of women for a long
period, do not give adequate liberty and empowerment for
participating in politics. Legislature has meager
representation of women, which denies chances for women to
participate in the process of framing laws. Women have to
debate, discuss and give their consensus for the legislations to
Dr.P.Ganesn et al. International Journal of Recent Research Aspects ISSN: 2349-7688, Special Issue:
Conscientious Computing Technologies, April 2018, pp. 698-702
© 2018 IJRAA All Rights Reserved page - 699-
be implemented and obeyed by them, who nearly consist a
half of the population of our country.
Gender prejudice in Judiciary
Women Judges
Women judges are also at the receiving end of sexism. There
have been instances of losing male lawyers foul-mouthing
them. A woman judge in Karkardooma courts in Delhi filed
an FIR when she was subjected to sexist abuses by a lawyer.
But her own chief judicial magistrate reportedly asked her to
withdraw the complaint. In judiciary women appointments is
meager. Since independence only six women judges are
appointed for Supreme Court out of the total 229 judges
appointed from 1950. Among 611 high court judges at
national level only 62 are women. The first female judge
appointed to Supreme Court, was Fathima Beevi from Kerala
in 1987. It took more than four decades after independence
for a woman to be appointed as a Supreme Court judge.
(Dhananjay Mahapatra, times of india.com) In India out of
955013 advocates registered in Bar Councils only 98556 are
females. It is around 10 per cent of women law graduates are
working as advocates at National level. (Shiva Thokas,
www.socialwatchindia.net)
Statistics prove it is a man’s world. There is only one woman
judgeJustice R. Banumathiin the Supreme Court as
against 25 male judges. Only six women have been appointed
as judges of the apex court till now. The 24 High Courts in the
country have only 64 women judges compared to 557 male
judges, and there is not a single woman judge in eight High
Courts. While at least 44 names were recommended by the
Allahabad High Court collegiums to the government recently
for appointment as judges, only two of them are women. A
woman was appointed to the High Court only in 1959. At no
point have there been more than two women judges in the
Supreme Court.
Women lawyers
No woman is appointed as office bearer and no woman
became chairperson or vice-person of bar council of India.
But women are not expected to be aggressive, and if they are,
they are branded as cantankerous or rude. Former Delhi High
Court Chief Justice A.P. Shah recalls having once
recommended a woman lawyer as a judge, but she was
rejected apparently because she was ‘rude’. “If a male lawyer
replies in a certain manner to a judge, it is usually taken in the
stride. But if the same things were to be said by a woman, it
becomes a topic of discussion for the bar or bench, and not in
a pleasant way,” he says. Shah is known as one of the few
High Court chief justices to recommend a good number of
women for judgeship; many of the names, however, got
rejected. Women also have to deal with men who are either
condescending or patronizing. “Either they are nasty to you or
would want to take you in their protective umbrella, which is
the old boys club. They do not like women who stand on their
own dint and are strong individuals,” says Supreme Court
lawyer Shilpi Jain. If you are aligned to a chamber or are
related to a judge or a senior lawyer, you are a part of this
club. It helps to have a godfather, says a lady judge in a district
court in Delhi. She says there are many examples of women
who have made it because they were either related to a judge
or a senior lawyer or were affiliated to a certain chamber.
The attitude of clients is also not very encouraging. Trivedi
talks about clients getting the case file prepared by a woman
lawyer, but wanting their case to be argued by a male lawyer.
Also, women lawyers are seen as suited to handle family law
cases and social issues, and not trusted with high stake cases.
Former Supreme Court judge Sujata Manohar said the
inability to get cases is a main reason why women are losing
out on judgeship. “Women still find it difficult to get litigation
work. As a result, there are very few successful women
lawyers practicing at the bar. So women lawyers rarely figure
among lawyers from the bar being considered for appointment
as judges of the High Courts.” Women lawyers have to be
extra careful about how they dress up, too. A retired judge of
the Delhi High Court is still remembered for his nasty
comments on the attire of women lawyers. It is said that
women were scared to appear before him because of his
comments, which ranged from “Are you dressed up for a
party?” to “You are so focused on your appearance that you
cannot even remember to take the next date from me.”
While women got the right to practice in 1922, Jaising became
the first woman additional solicitor general in 2009. The
country has not had a woman solicitor general or attorney
general. From 1992 to 2005, at the top three courts of the
countrySupreme Court, Delhi High Court and Bombay
High Court, only one woman had been designated senior
advocate. The designations are on hold in the Supreme Court
till it decides on a petition filed by Jaising, urging for greater
transparency in the nomination of senior counsels. Women
lawyers face problems right from when they enter the field.
Rucha Anant Pandey, 24, who started practicing at the Nagpur
bench of the Bombay High Court a few months ago, says her
initiation into the field was in a trial court in Pune, where she
handled criminal cases along with a senior. Everyone in the
court, from the bailiff to the court clerk to male lawyers asked
her, “Madam, kya kar rahe ho [What are you doing here]?”,
referring to her as a misfit in the world of criminal law. A
judge once asked her to call her senior, and advised him to
give her only certain kind of cases.
Causes for gender discrimination
Economic: (i)Division of labour: women are entrusted with
light and household works and earning responsibility vested
with male members of the family. Light work and domestic
responsibility is not valued in money due to patriarchal
perception. (ii) Problems in work place: women face sexual
harassment at work place, especially in unorganized sectors.
They do not want to participate in economic activity unless
family warrants supplement of income. When a girl is in a
position to earn money for subsistence, she has to tolerate
sexual harassment and it leads to non-readiness to report
sexual harassment.
Social: (i) Patriarchal dominance: role and status of women
have been developed and maintained by patriarchal social
structure for a long period led to women’s marginalization and
abandonment in decision making and intellectual works.
Dr.P.Ganesn et al. International Journal of Recent Research Aspects ISSN: 2349-7688, Special Issue:
Conscientious Computing Technologies, April 2018, pp. 698-702
© 2018 IJRAA All Rights Reserved page - 700-
Women’s submissiveness, dependence, soft nature and
politeness of women indirectly empower males to take upper
hand and dominate women, (ii) Cultural Barriers: cultural
hurdles restrain women to use opportunities, and their talents.
They are not only unable to avail chances by tackling the
barriers and restricted themselves for domestic responsibility
but also they transform the same cultural traditions to the
subsequent women generations, (iii) Social stigma and
inferiority: nature of roles given to women and life styles and
behavior prescribed for women lead to develop inferiority and
social stigma that they are inferior to men and they should not
deviate the norms of patriarchal system and (iv) Male
preference: mostly in all matters male members are given
preferences in nutritional food, education, recreation because
they are the identity of family or community. Males are
preferred to send to school mostly girls are not allowed to
pursue higher education.
Educational: (i) Illiteracy and ignorance: parents especially
women are illiterates and ignorant about educational
empowerment. BIMARU states which are contributing all
kind of problems are mostly responsible for these causes. (ii)
Denial of higher education: However, women basic education
is encouraged, legal education is almost denied for them
because of the socio, cultural, economic and political
atmosphere of our country. Our social system does not
encourage women to pursue their higher education due to the
stigma of good groom for marriage, dowry and restricted them
to domestic roles traditionally prescribed by the patriarchal
social system. (iii) Non-readiness of women to pursue legal
education: Women themselves are not ready to pursue legal
studies, or they are not allowed to select legal education by
their family members or friends due to various problems like
safety, risk of dealing with criminals, unsecure income,
presence of more number of males etc., there is no good
precedents and women are not ready to take risks to pursue
legal studies and practice as lawyers. Women legal education
is the foremost need for removing this kind of inequality.
Political :(i) Democratic ideals are not guaranteed: due to
social, economic and cultural political institutions do not
ensure justice, equity and liberty for women. Political
institutions even after 68 years of independence do not create
an atmosphere to empower women in various aspects of social
life, (ii) Lack of reservation policy: women officials in
government offices, legislature and courts are not
proportionate to men. Women appointments are very meager
in all government offices from peon to high officials.
However, 33 per cent reservation given in Local body
elections, they are not implemented meat and bounds and
elected women are not permitted to function properly, (iii)
Violence against women: violence against women increases
and conviction rate of offenders decreases year by year.
Technological development, increase of numbers of police
stations, courts, jails and financial commitment of
Government are fast growing but sufferings of women is still
not contained.
Implications
Economic: (i) Waste the talents of women: highly educated
women became house wives. Educational, technological and
administrative skills are kept in abeyance. Human resources
are not utilized properly to achieve economic development.
(ii) Minimum women work force: work force is 27 per cent.
It is also mostly in unorganized sector. Work force in social,
economic and political arena should be increased to achieve
development and equalitarian justice, (iii) slow economic
development: exclusion of women in governmental
institutions, involvement in agricultural and unorganized
sector leads to lowering women status and slow economic
development.
Social: (i) Transformation of male chauvinism to next
generation, male chauvinist attitudes, beliefs, ideas, norms
and values are transformed to the upcoming generation. Even
the wrong doers against women are claiming women violate
societal norms, legal values which empower women are not
recognized but social norms which underestimate women are
much respected by the men who are in high offices of
Government, (ii) Continuance of social stigma, Women have
stigmatized behavior in the family and community. They do
not bother about any law enacted in their favour. They are
under the control of patriarchy. Civil society directions do not
reach them beyond the barrier of patriarchy. Those women,
who break or claim to break legal values, face a lot of issues
in their social life, which becomes bad precedents. (iii) Low
enrolment in higher education: women are forced to take up
their social roles through early marriage hence they are
restrained from higher studies.
Political: (i) Criminalization of Bureaucracy and Politics:
Criminalization of politics and bureaucracy. Women are
afraid of the presence of rowdism in politics and
administration. Women in Government posts are assaulted
casually by contractors or political volunteers. While males in
bureaucratic set up is not facing such kind of issues.
Criminals, muscle power or mighty persons are males, which
pushes outside the institutions or which do not attract women
towards inside, (ii) Corruption & Scandals: When there is a
nexus between bureaucrats and politicians and criminals,
organized corruption and scandals are carried out mostly by
males. Even women are involving in such kind of activities
they are guided or motivated by men. Government can reduce
corruption and contain scandals if more number of women
present in Government institutions, (iii) increase of violence
against women, violence against women, insecurity, low age
at marriage, restriction on higher education are all the reason
for low enrolment of women in higher education. They should
come forward breaking the social barriers to pursue higher
education by availing the scholarship and free education
facilities.
Solutions
Socio-cultural and economical: Education and economic
empowerment are generally essential conditions for women’s
development. Transformation of socio-cultural behavior can
be achieved through literacy level and economic
independence, which will be a solution for most of the
problems of women. There are some slanginess in
implementing welfare legislations and schemes due to
presence of males in government institutions, this position can
be changed. Women participation should increase in
Dr.P.Ganesn et al. International Journal of Recent Research Aspects ISSN: 2349-7688, Special Issue:
Conscientious Computing Technologies, April 2018, pp. 698-702
© 2018 IJRAA All Rights Reserved page - 701-
economic development automatically lessen patriarchal
suppression. The present school level education trends are
good competitiveness of girls and achievement of girls more
than boys.
Psychological: Recreation, meditation, counseling, physical
exercises, learning self defense methods and sex education
can relieve women from their psychological problems. Self
Help Group involvement and organized activities of women
function well and women especially home makers have
benefitted through Self Help Group. Men folk in family,
educational institutions and at work place should accept
freedom, equality and empowerment of women.
Political: Reservation policy in Government institutions and
politics - Education and political empowerment generally and
particularly eradication of corruption and criminalization of
politics, implementation and increase of reservation in
elections, freedom for women leaders such as MLAs,
Presidents, and empowering officers from top to bottom can
transform women folk into availing opportunities and
participate nation building and development. Poverty
eradication, infrastructure development, measures for
increasing agricultural production is needed for rural people
including women folk. According to The Millennium
Development Goal report significant inequalities especially of
gender also class, caste and region are hampering India’s road
towards development, “Persistent inequalities, ineffective
delivery of public services, weak accountability systems and
gaps in the implementation of pro-poor policies are further
hindrances to progress in regard. (Millennium Development
Goal report, 2010).
CONCLUSION
Male domination in government institutions leads to denial of
justice to women, who are affected by males. Presence of
males in government institutions discourages women to
approach government offices and claim their various legal
rights. Especially, when women are affected by crimes like
rape, sexual harassment, eve-teasing, and other related rights.
Male officers are mostly occupying high posts in Government
institutions and they cannot deal women issues without
prejudice, which is emphasized by rule of law. They mostly
discourage women to give up their rights or tolerate the acts
of perpetrators by suggesting loss of chastity, reputation,
prestige and other things depending on girls’ status.
Masculinity tries to save male offenders for want of material
benefits and suppresses feminine gender in all possible ways
and thereby set bad precedents, which leads to lack of
implementation of all kind of women laws.
In India we have provided so many legal measures and
welfare schemes for increasing women’s status and
transforming women into development activities but still we
have not achieved the expected result due to traditional,
cultural, social, economic, educational and political factors.
Women should give importance for news and general
awareness in mass media. Women are prey to similar
problems and men folk adopt similar tactics to deceive girls
like love through false promises, trafficking women by false
employment chances and other ways of cheating modalities
can be learnt through mass media. Sex education and self
defense training for women are important in the modern
changing world. Organized functions like Women Self Help
Groups, Women Clubs, Associations, branches of Women
Commissions and other type of group activities can help
women to avail and enforce their rights. Now-a-days not only
women but also male organizations voice against atrocities
leveled against women, who lead to major policy and
legislative changes in our country.
Formal social control system should be increased and
extended to make women have confident in the legal
mechanism. Child Help Line and Help Line for Women in
distress, Action of Employer against Sexual harassment at
work place and reservation election for women are good
measures functioning effectively. Modern mechanical life,
food pattern, hormonal change in adolescent due to exposure
to internet, increase of divorce cases and other needs of
globalized technological era, need licensing commercial sex
work. Informal social control system such as folkways, mores,
norms, values, customs and other methods, which emphasize
respect for equality, freedom and respect for women, will be
given importance through joint family living arrangements. If
the hurdles are removed and women participate in productive
activities the pace of development will increase. It is the
responsibility of men folk in family, community, work place
and government to remove discrimination against women,
ensure liberty towards building an equalitarian society.
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