“Marry the Rapist”: Why India Desperately Needs More Women in the Judiciary

On March 1, the Chief Justice of India SA Bobde asked a middle-aged man accused of raping a minor if “he would marry her” as some sort of remedy for the barbaric act he was being tried for. That the highest court of the land sees marriage as a fix for the heinous violation of a woman’s dignity, her right over her body, says something about the way we understand and treat women in India. This is not even the first such instance of institutional apathy or tone-deafness in matters relating to women and their grievances. A sexual harassment allegation in 2019 against the then CJI Rajan Gogoi, for example, was met with instinctive huddling among the men in power with Gogoi ridiculously presiding over his own case. The handling of issues sensitive to women in this country are a farce to say the least. One of the many reasons why this climate persists is because like most other institutions, the gender ratio of the High Courts and the Supreme Court is abominable.

India’s first female Supreme Court Judge, Fathima Beevi was appointed in 1989, a full four decades after the court had been established. Incredibly, just seven other women have made that ascension since. Only last December, Attorney General K K Venugopal made the statement that India’s courts could severely benefit by placing more women in them. Venugopal’s observations are based on the fact that while the court often poses as doing good for them it somehow doesn’t deem it necessary to consider women’s opinion. The abolishment of the Triple Talaq law, for example, was presided over by a five-member all-men bench. It points to a chilling lack of will in seeing the world for what it is – diverse. In an interview with Mint, the lawyer Rebecca John says, “The Supreme Court has done itself no favours by not considering the women who are excelling in the bar.”

This galling lack of diversity that seems to evade the otherwise piercing eyes of the judiciary has many pitfalls. Firstly, it doesn’t follow the constitutional mandate of equality and diversity that the courts have been created to uphold. Secondly, it places too much power in the hands of men who, as MeToo has proven, will use their power to bypass accountability at the time of asking. It’s a man-make-man-serve world. Third and perhaps the biggest loss we suffer due to lack of representation is the warped understanding and insensitivity, which simply can’t be reversed by overnight appointments that balance the numbers. It requires a shift in culture, in the way the courts conduct themselves in matters personal to women, their dignity, bodily or otherwise. Too often an Indian court ends up losing some of its own in the pretence of equitably dispensing what everyone must accept as just.

The recent MJ Akbar vs Priya Ramani case, despite its positive outcome, had examples littered along the course of its runway about the toxicity that has taken hold on the floors of the judiciary. Not only do women who approach the court, struggle to find safe environments to make their appeal in, but women who work on the side of the law also don’t have it any easier either. In a disheartening piece written by lawyer Kiruba Munuswamy, this malignant environment manifests in all its treachery. “When I was practicing in the Madras High Court, a judge commented about my short haircut, which I couldn’t tie. He said, ‘Your hairstyle is more attractive than your argument,” she writes. If an educated, qualified insider of the court is subjected to such bilious statements, imagine what women with less financial and political capital are subjected to in the absence of both media or other empathetic women.

Education is no criteria for sensitivity, nor are the academic papers that one passes to get into India’s highest offices. Morality and etiquette can’t, like curriculum, be forced upon the unwilling. It’s a social exercise where one must both absorb and learn to belong to a certain class of masculinity, often at the expense of guilt and humility. It may also come at the cost, as we have learned, of being let down by the ones you thought were heroic, even worth looking up to. But it’s a price we must all collectively pay so we don’t have to live through days when the supposedly erudite sound like certifiably crude.

If the highest courts in the land could set an example for how sensitive issues regarding women should be viewed and handled, lesser institutions that suffer from a far more acute case of cold-bloodedness – the media and the police – might even follow. Not unless there is some clear-sighted balancing of the scales can you expect the courts in India to function like anything but a men’s club. A club that views women, be they the subject or an instrument of the law, as objects that must be dealt with rather than humans they need to know, ask and treat better.