Gender Perspective of Judicial Appointment Process in South Africa and India
Abstract
Requiring a woman to choose between work and personal life is the most severe form of discrimination she can face. In practice, the large disparity between the number of women and men is not getting much attention, despite the significant increase in women studying law. From a colonial misogynist whim to a post-colonial facade of the "new-age construct of Indian woman," the legal profession has done nothing to decolonise itself from its rudimentary understanding of "equality of opportunity." When Indian jurisprudence has been swooning over the sweeping effect of transformative constitutionalism in the understanding of equality as enshrined in the Indian Constitution, one cannot help but wonder why the legal profession was left out of its brushing effect. It leads us to examine the existing literature on bar policies and the steps taken by regulatory bodies in assessing situations that are favourable or unfavourable to furthering women's issues in modern-day India. In contrast, South Africa's pro-women Bar policies are appealing in terms of evaluating their applicability and extent in terms of promoting inclusivity at the Bar. This article seeks to capitalise on the potential of these two countries in carving out a niche for women to play a substantive role in designing governance policies through the judiciary. The methodology makes use of a comparative and analytical understanding of doctrinal resources. The article examines the current gender composition of the legal profession while supporting the concept of substantive equality as a requirement in designing an appropriate judicial appointment process. The welfare policies of Bar, for instance, the parental leave, keeping track of the demographic composition of advocates in South Africa plays a distinct role in transforming the gender composition of the judiciary.
Keywords: Gender Representation, Legal Profession, Substantive Equality.
References
Arrington, Nancy, Bass, Leeann, Glynn, Adam, Staton, K. Jeffrey, Delgado, Brian, Lindberg I., Staffan, “Appointment Rules and Gender Diversity on High Courts", (2019) Harvard.
Bajpai, Rochana, Debating Difference (New Delhi: Oxford University Press, 2011).
Baxter, G. Lawrence, Apartheid and the South African Courts, Duke Law Magazine, 1987.
Bonthuys, Elsje, Gender and Race in South African Judicial Appointments, 23 Fem Leg Stud 23, 127–148 (2015).
Bozzoli, Belinda "Marxism, Feminism and South African Studies," Journal of Southern African Studies, 9, 2 (1983), 139.
Chandra, Aparna, Hubbard William & Kalantry Sital, “From Executive Appointment to the Collegium System: The Impact on Diversity in the Indian Supreme Court” (July 9, 2019). Cornell Legal Studies Research Paper No. 19-26 (2019), University of Baltimore School of Law Legal
Studies Research Paper.
Chandrachud, Abhinava, The Informal Constitution: Unwritten Criteria In Selecting Judges For The Supreme Court Of India (Oxford University Press, 2012).
Chetan, Achyut, Founding Mothers of the Indian Republic: Gender Politics of the Framing of the Constitution (Cambridge University Press, 2022).
Cowan B., Ruth, “Woman's representation on the courts in the Republic of South Africa", 6 U. Md. LJ., Race Religion Gender and Class 2006.
Crouch, Amy Melissa & Naidu, Natasha, The Feminisation of the Judiciary in the Global South (2021).
Escobar-Lemmon C. Maria, J. Hoekstra, Valerie J. Kang, Kittilson, Caul Miki, Breaking the Judicial Glass Ceiling: The Appointment of Women to High Courts Worldwide, 83 The Journal of Politics, 2 March 31, 2021.
Ginsburg Bader, Ruth, & Merritt Jones, Deborah, “Affirmative Action: An International Human Rights Dialogue” (1999) 21:1 Cardozo L Rev.
Guyard-Nedelec, Alexandrine, A Legal Maternal Wall? No Revolution in Motherhood for Women Lawyers in England 2018 Revue Française de Civilisation Britannique [Online], XXIII-1 | 2018.
Hetherington, Penelope, “Women in South Africa: The Historiography in English”, (!993) 26:2 The International Journal of African Historical Studies.
Hoekstra Valerie, “Increasing the Gender Diversity of High Courts: A Comparative View”, (2010).
Hug Jr., Procter, Huff L., Marilyn & Coughenour C., John, “Ninth Circuit: The Gender Bias Task Force”, 32 U. Rich. L. Rev. 735 (1998).
Johnson E., Rachel, “Women as a Sign of the New? Appointments to South Africa’s Constitutional Court since 1994” 10 Pol & Gen (2014).
Kang J., Alice, Kittilson Caul Miki, Hoekstra Valerie & Escobar-Lemmon C. Maria, Diverse and inclusive high courts: a global and intersectional perspective, Politics, Groups, and Identities, 8:4, 812-821 (2020).
KloB Theres, Sinah, “The Global South as Subversive Practice: Challenges and Potentials of a Heuristic Concept”, (2017) 11:2 The Global South.
Loftus, Marilyn, Schafran H. Lynn & Wikler, Norma, Establishing a Gender Bias Task Force, 4(1) LAW & INEQ. 103 (1986).
Miller L, Andrea, The Separate Spheres Ideology: An Improved Empirical and Litigation Approach to Family Responsibilities Discrimination Minnesota Law Review 239 (2014).
Mohapatra Kumar, Nalin, The Many Issues Of The Global South And India's Emergence As Its Voice In Reshaping Global Order, The Outlook, 17th March 2023.
Mohanan, Nila, “Negotiating Political Power at ‘Critical Junctures’: Women and Constitution Drafting in South Africa and India”, 57 Journal of Asian and African Studies 3, June 18, 2021
Murray Wesson & Plessis Du, Max, Fifteen Years On: Central Issues Relating to the Transformation of the South African Judiciary October 2008 South African Journal on Human Rights 24(2).
Nwachukwu Okeke, Chris “African Law in Comparative Law: Does Comparative Have Worth?” (2011) 16:1 Roger Williams University Law Review 1-5.
Odeh, Ekedegwa Lemuel, “A Comparative Analysis Of Global North And Global South Economies” (2010) 12:3 Journal of Sustainable Development in Africa 338-347.
Parthasarathy, Surith, Comparative Law in the NJAC Judgment: A Missed Opportunity, 197-207 2018.
Sachs, Albie, Justice In South Africa, University of California Press, 1973.
Sengupta, Arghya eds. Appointment Of Judges To The Supreme Court Of India (India, 2018).
Shankar, Uday, Appointment of Judges in Higher Judiciary: The Need For Independent and Reflective Judiciary, Law and (In)Equalities, Edited By Swati Deva, Eastern Book Company, Lucknow (2010).
Singh, Anu, “Economic Objections to the Policies of the Government of India in Supporting Cultural Motherhood” (2023) 2:1 Human Rights in the Global South (HRGS).
Tripathy, Rangin & Dhanee, Soumendra, "An Empirical Assessment of the Collegium’s Impact on Composition of the Indian Supreme Court", (2020) 32:1 Natl L School India Rev.
Tripathy, Rangin, “Supreme Court Collegium and Transparency: An Empirical Enquiry” (May 7, 2021). Supreme Court Collegium and Transparency: An Empirical Enquiry 2021 (56) 22 Economic and Political Weekly 33.
Valdini E. Melody & Shortell, Christopher, Women’s Representation in the Highest Courts: A Comparative Analysis of the Appointment of Female Justices, 69 Political Research Quarterly 865–876 (2016).
This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.
