The religious scrutiny of the Supreme Court bench hearing the triple talaq case has been lauded and criticised. But more glaring is an all-male bench in a case linked with gender justice issue.
The composition of the Supreme Court bench hearing a set of petitions challenging triple talaq and ‘nikah halala’ has been making news. The five-judge bench comprises of judges from five different faiths — Chief Justice JS Khehar (Sikh), Justice Kurian Joseph (Christian), Justice Rohinton Fali Nariman (Parsi), Justice Abdul Nazeer (Muslim) and Justice UU Lalit (Hindu).
This religious scrutiny, however, has received varying responses. While a large number of people have lauded the religious diversity of the bench, others have criticized it saying it is inappropriate to cite the religion of judges of the highest court of the country, who in their capacity as judges, must necessarily be above social identities of any kind.
Is this a smart lens to study the bench?
To begin with, to celebrate the religious diversity of the bench in the triple talaq case is self-defeating. Especially because many, including Prime Minister Narendra Modi, have said that triple talaq is an issue of gender equality, and not of religion.
But it cannot be disputed that the religious diversity of the bench makes for a powerful and correct symbolism. It has also been pointed out that it is glaring to have an all-male bench in a case inextricably linked with gender justice issue. However, this bench is no exception when it comes to gender representation.
According to the data released by the Ministry of Law and Justice in December, merely 10.4 per cent of the judges of the Supreme Court and high courts are women. Until 2016, of the 676 judges serving in the judiciary, no more than 70 were women. With women making up only 19.4 per cent of the judges, the Bombay High Court fares the best in terms of gender representation. At least eight high courts have no female judge at all, while four of them have one female judge each. The Supreme Court too has no more than one female judge. (See table below)
India is not alone in this scrutiny of its judiciary. Diversity audits are a common and important barometer to study the judiciary in countries like Britain, United States and Canada.
Judicial diversity is a goal worth pursuing because it increases public confidence in courts, it brings decision-making power to formerly disenfranchised populations and is essential to ensuring equal justice for all, says a scholarly essay in the journal called Judicial Selection.
British courts continue to be male bastions. A recent study by a reform group called Justice in the UK, for example, said that the failure to select judges who reflect the country’s ethnic, gender and social composition, has become a “serious constitutional failure”. Like in India, there is only one woman on the Supreme Court in the UK, while there has never been a female lord chief justice of England and Wales.
A 2016 study in the US too found that white men continue to dominate the judiciary even as considerable progress has been made towards achieving gender parity in the courtroom. A study by the American Constitution Society found that as of 2016, white men comprise 58 per cent of state court judges, with less than one-third of them being women, and only 20 per cent being people of colour.
However, the diversity (or the lack of it) in judiciaries across countries continues to be a subject of scrutiny. Analysing the composition of the bench in important hot-button cases like triple talaq may be a welcome step in the public discourse on the Indian judiciary.
Sanya Dhingra is a Reporter with ThePrint. You can follow her on Twitter @DhingraSanya
Picture courtesy: http://www.supremecourtofindia.nic.in
Main picture shows judges of the Supreme Court on the dais on the inaugural sitting of the Supreme Court on January 28, 1950.