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21 Geo. J. Gender & L. 725 (2019-2020)
Structural and Discretionary Bias: Appointment of Female Judges in India

handle is hein.journals/grggenl21 and id is 742 raw text is: STRUCTURAL AND DISCRETIONARY BIAS: APPOINTMENT OF FEMALE JUDGES IN INDIA AISHWARYA CHOUHAN* ABSTRACT Gender bias in appointments at different judicial levels, whether in explicit or implicit forms, has been a prominent cause of the skewed gender ratio in the higher Indian judiciary. By basing this assertion on empirically collected quali- tative and quantitative data, I argue that such bias operates in two forms: Structural bias and discretionary bias. Structural bias encompasses the biases embedded in judicial selection poli- cies: First, the Supreme Court's unwritten seniority norm, which favors the selection of the senior-most High Court judges to the apex court; and second, the transfer policy at the subordinate judicial level, which prohibits the appointment of judges at their place of residence or that of their spouse have emerged implicitly gender-biased. Discretionary bias includes biases exercised by judicial decision-makers based on their conscious or unconscious preferences have emerged implicitly gender-biased. I conclude that the prominent reason for gender-biased appoint- ments is the failure by policymakers and decision-makers to consider women's differential responsibilities of motherhood and marriage, and the lack of responsibility-sharing by their husbands. I. INTRODUCTION .......................................... 726 II. M ETHODOLOGY ......................................... 728 III. STRUCTURAL BIAS ....................................... 730 A. THE HISTORY: BREAKING THE SHACKLES ....................... 730 B. SENIORITY NORM .................................... 733 1. State-wide Ratio of Women Chief Justices ............ 736 2. Differential Judicial Gender Ratio Among States ....... 739 C. TRANSFER POLICY ................................... 744 * I am a lawyer based in India who graduated in 2020 with a B.A.LL.B. (Honors) from Institute of Law, Nirma University. First, I would like to thank all the 19 judges who trusted me and allowed me to interview them. Next, I want to thank my parents, brother, Mr. Bishwa K. Dash, Mr. Nitesh Chaudhary, and Mr. Abhinav Sekhri for being my guiding force and support system while I did the Women in Indian Judiciary project. Thanks also to Judge Mel Flanagan, Dr. Dhvani Mehta, Senior Advocate Sidharth Luthra, Mr. Nadim Khan, Ms. Kanupriya Kothiwal, and Mr. Arijeet Ghosh for supporting me in a variety of capacities during the project's nascent stage. My deepest gratitude to all the people who worked behind the scene and helped me get access to interviewed judges. I also thank Mr. Sidharth Ray for being a great friend and assisting me with gathering statistical data for this paper. Lastly, I would also like to thank my editors for their thoughtful comments and commitment to help me with the publication. © 2020, Aishwarya Chouhan.

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