Introduction
“If men menstruated, they would understand” opined Hon’ble Justice B.V. Nagarathna while questioning Madhya Pradesh High Court (“MP HC”) on its decision to terminate six female judges1.
In June 2023, MP state government sacked six women Civil Judges on recommendation of High Court. The reason stated for termination was their unsatisfactory performance. After intervention of Supreme Court in September, the MP HC reinstated four out of the six judges. But it refused to revoke termination for two judges— Aditi Kumar Sharma and Sarita Chaudhary2.
The Supreme Court of India took suo moto cognizance of the termination order in January 20243.
“Don’t call them slow and terminate them”
Aditi Kumar Sharma’s termination stemmed from her consistently depleting ratings. She joined the service in 2018. As per MP HC, her performance rating fell from “very good” to “good” during 2019-2020 to “average” and “poor” in the recent years. Moreover, they referred to her record in 2022, where she had 1500 cases pending with her disposal rate below 2004.
To counter the allegation of poor performance, Sharma’s advocate argued that she had informed about the miscarriage she had faced in 2021. Further, soon after the unfortunate incident, she learnt about her brother’s cancer diagnosis.
The Hon’ble Bench observed this fact and stated that the MP HC failed to consider the mental and physical trauma suffered by the terminated judge. Moreover, Justice Nagarathna opined that the decision would have been different had men faced the agony of miscarriage.
She highlighted the lack of empathy exercised in the matter and said, “If we are hearing this matter at length, can lawyers say we are slow? Particularly women, if they are suffering physically and mentally, how can you call them slow and send them home?5”
Life of Female Justice: A Glimpse
Unconscious bias and unnoticed discrimination become a part of life for women in male-dominated fields. They have to work extra hard to achieve the same success as their male peers. Besides the usual challenges of work-life, their hinderances include sexist mindset, misogynist jokes, and constant scrutiny of their intellect.
Being a female judge is not different. Since the number of women in judicial system is in minority, they have to apply extra effort into surviving till they reach the higher echelons. Justice Leila Seth recalled her experience of dealing with the pressure of the All-Boys Club in Courts in her autobiography “On Balance”. She shared how she had to maintain an equilibrium between feminine composure and strictness, and how she had to ensure that she did not make any mistakes and withstand sexist jokes6.
In another instance, Justice Gyan Sudha Misra had once reportedly rebuked her fellow male judge with “Stop judging the judge and start judging the matter!” because he kept questioning her understanding of the issue7.
Challenges exist even beyond the courtrooms— challenges that are far more serious than stereotypes. In 2015, a female justice in Karkardooma district courts complex filed an FIR against the accused’s lawyer for assault and threats. He had hurled sexist abuses at her when she refused to grant the relief that he sought8.
Any profession that fails to accommodate needs of its participants in equitable manner fails to treat its participants equally. If the criteria for male and female judges are to be kept strictly equal, with complete disregard of social and physical ordeals faced by one of the genders, it will unconsciously favour one gender over the others.
Also read: SC Said MP Judge Did Not Resign Voluntarily
It Takes a Woman, To Know a Woman
Hon’ble Justice Nagarathna’s statement is an eye-opener. It showcases lack of empathy of the dominant group that comes from its inability to walk in the shoes of its counterparts.
How can the judiciary be made more considerate of women without adequate female representation? If there aren’t enough women on senior levels, who will call out unconscious bias and misogyny that’s been passed down as “Court’s tradition”?
Let’s look at statistics: there are 14 states where women make 50% of selected candidate for civil judge division. However, at High Court, the percentage female representation dips to 13.4% and 9.3% in the Supreme Court9.
Although it is true that there is improvement in female representation in district courts, India is still long way from having more women in higher court. Reason? Supreme Court’s tradition of elevating judges based on seniority.
Those senior in High Courts are elevated to Supreme Court and those senior in Supreme Court get promoted to Chief Justice. Now, if there aren’t many female judges in High Court, how will there be an increase in female judges in the Apex Court?
Despite discussion on having reservation for women in higher courts10, there have not been any serious consideration of the matter. It appears that steps are taken to create more inclusion and steps not taken to maintain status quo.
Conclusion
The termination of Aditi Kumar Sharma revealed much more than errors in the rationale of the decision-making authority. It brought to surface another struggle story of a woman in a man’s world and highlighted the barriers that Indian judiciary is yet to overcome in its endeavour to be equal to all its contributing participants.
Authored by – Ayush Bardhan, Trainee Associate, The Legal Swan