Indu Malhotra's potential appointment to SC is historic, but lack of gender diversity in judiciary worrisome

In a historical move, senior advocate Indu Malhotra is all set to become the first woman lawyer to be directly appointed as a judge of the Supreme Court. Malhotra’s name was cleared unanimously by the Supreme Court collegium consisting of Chief Justice Dipak Misra and Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph. Along with her, the Collegium also recommended that Uttarakhand Chief Justice KM Joseph also be elevated to the Supreme Court. When appointed, Malhotra will be the seventh woman judge to make it to the Supreme Court since it was established 67 years ago. Currently, Justice R Banumathi, who was appointed in August 2014, is the only woman judge in the country’s apex court amongst 25 judges, and is due to retire in July 2020. In 1989, Justice Fathima Bheevi became the very first woman judge of the Supreme Court. The career of Indu Malhotra — who was born in Bengaluru in 1956 — spans over three decades. She began her legal career in 1983, and in 2007, she was the second woman lawyer, after Justice Leila Seth, to be appointed senior advocate by the Supreme Court. Malhotra is a second-generation lawyer, and has been an advocate of social issues, and is on the board of trustees at SaveLIFE Foundation, which she has also represented in the Supreme Court. [caption id=“attachment_4301147” align=“alignleft” width=“380”]  File image of senior advocate Indu Malhotra. News18 Hindi[/caption] The legal community’s response to this news has been overwhelming, to say the least. Indira Jaising, senior advocate, spoke to The Hindu saying that – “It’s a welcome move to recruit a woman directly from the Bar. There has to be more women judges at the Supreme Court.” Supreme Court advocate Vrinda Grover stated that this is great move by the Supreme Court but there is a need to have more women judges in the apex court. Indu Malhotra’s potential appointment, while nothing short of historic, reveals a deeply ingrained issue that the judiciary should have addressed decades ago – in 67 years of the Supreme Court’s existence, there have been only 6 women judges! Last year, when the practice of triple talaq was declared arbitrary, un-Islamic, and unconstitutional, the verdict was pronounced by five judges of five different faiths, but not even one of them was a woman. Later, in a separate judgment, privacy was declared a fundamental right by an all-male panel of Supreme Court judges. Justice Banumathi was not a part of the two most significant judgments of the judiciary in 2017. Though Justice Banumathi was a part of the bench that adjudicated the Jyoti Singh gang-rape case and confirmed the death sentence of the men convicted, she was sadly left out of adjudicating the cases that could have changed the narrative of women’s rights in the judiciary. A former judge of the Madras High Court, Justice Prabha Sridevan points out to the biggest issue when it comes to women in the judiciary – “The problem is far more deeply ingrained. It is the fact that there is just one woman judge and that this does not seem to matter to anyone.” Indira Jaising believes that “women are available but they are not on the horizon of those who appoint judges.” The scarcity of women judges and the complete lack of gender diversity at the higher judiciary, the agencies that shape legal narratives, is stark. The data speaks louder – there have been 229 judges appointed to the Supreme Court since the 1950s, out which there have been only six women. The judiciary had taken 39 years to appoint the first ever woman judge in 1989. Today, we celebrate Indu Malhotra’s potential elevation to the apex court, knowing fully well that there is only one other woman judge in the higher judiciary, and this fact is disturbing. In my opinion, we don’t require women judges exclusively to decide on issues of women’s rights and gender. In the past, there have been several judgments where women’s right to life, dignity and equality were ruled by male judges. The fact is that one does not need judges of a particular gender, caste or community to rule on issues that require such considerations – advocacy does not require exclusivity. However, the Supreme Court is an institution that is dedicated towards meting out justice and upholding constitutional principles of equality, diversity and dignity, and if this institution demonstrates such a gaping lack of diversity, then this must be redressed. Having women judges at the Supreme Court would have possibly contributed to a less unidimensional judgment in the triple talaq case, where the male judges did not discuss the domestic violence and torture that was a significant part of Shayara Bano’s original petition. Perhaps there would have been a discussion on marital rape when the Supreme Court criminalized sex with a minor wife. Had a woman judge sat on for Hadiya’s matter , perhaps the Supreme Court would not have had to assume parens patriae jurisdiction, and Hadiya would be declared what she already is – an adult woman who can choose what she wants in life. India is a signatory to the CEDAW (Convention on the Elimination of all Forms of Discrimination against Women) that mandates the removal of “obstacles of women’s public participation in all spheres of public and private lives”. The idea is that there should be a certain level of feminist adjudication at the highest court of the country, and currently, such adjudication does not happen. Male benches perceive women as victims who need to be protected and provided for, and this is why having more female judges at the top is necessary — we need more women who will understand the lived realities of women litigants. The Supreme Court is in the midst of discussing the criminalisation of marital rape and the barring of women worshippers from the Sabarimala temple. How can the Supreme Court keep adjudicating matters that touch women’s private and public lives without having women judges opine on the matters? Indu Malhotra’s potential appointment should not be a move of appeasement – directly appointing a senior advocate just to steer away from the discussions of gender diversity in the judiciary. Her appointment should be a way to remove barriers so that other women can aspire to work at the Supreme Court. Otherwise, the gender imbalances in judicial narratives of women’s rights will continue to stare us in the face.