Women's Day Special | BW Legal World Dialogue With Justice Gita Mittal | Former Chief Justice, Jammu and Kashmir High Court

BW Legal World initiated a Dialogue of Change in view of the International Women’s Day 2021, to bring real and enduring change one conversation at a time. BW Legal World in association with BW Businessworld hosted 50 women in law on March 06, 2021, at its virtual conference titled Gearing up for India@75: What Women Want—A BW Legal World Dialogue with Women Leaders in Law. 

Here’s an edifying dialogue between the BW Legal World Managing Editor, Ashima Ohri and Hon’ble Justice Gita Mittal, former and first-ever woman Chief Justice of the Jammu and Kashmir High Court, currently serving as the first woman chairperson of the Broadcasting Content Complaints Council. The recorded candid dialogue focusing on the need for Diversity and Inclusivity at the Bench is available here. 

Here’s the transcript of the BW Legal World Dialogue with Hon’ble Justice Gita Mittal: 

Ashima Ohri: Hon’ble Justice Gita Mittal, thank you for joining us for the BW Legal World Dialogue with women leaders in law. It is so wonderful to start our BW Legal World Dialogue with Women Leaders in Law with a Judge as full of exuberance and warmth as you. 

Justice Gita Mittal: Oh, that’s many many things put together. Let me give a brief perspective of what the path of women in the judiciary has been like. You got such a beautiful array of wonderful women leaders in the profession. I will just take you very briefly to the passage of women and the position, the demography of women in the judiciary and I’ll be addressing mostly the question of women leadership in the higher courts. it's really unfortunate that we have to talk about women and men separately. This is a profession where ability can be construed as sexless. This is something which Christopher Pancras had said and I am reminded of what Lord Coke had said. He was an eminent Jurist in England about 350 years ago. In 1873, when he had said that women are unfit for the legal profession. Female attorneys were unknown in England, It was the proposition that a woman should enter the courts at Westminster Hall in that capacity as a barrister would have created hardly less astonishment than one that she should ascend the bench of the bishop or be elected to a seat in the House of Commons. It's preposterous that you heard dialogue like this but women are still battling their way, so far as Judging is concerned, in a country where the population is almost 1.38 billion. We have 28 territories and 8 union territories. We have 25 High Courts which provide the Justice dispensation system as the highest court in the state. The total sanction strength is 1079. While the total number of judges in the High Court is 660, the vacancy position on 1st February 2021 was 419, that is 39% of Judge positions are vacant. Therefore, we have only one judge or the highest judiciary for approximately 2 million people, and the total judges to population ratio is only 18 judges per million. This is as for the 2016 figures. Now, so far as statistics on women lawyers and judges are concerned, In 1999, only 10% of total advocates were admitted to the bar for women, and only 23.49% of law students were females. However, as at present, we have almost 50% of those young ladies joining law colleges, and there is a consequent drastic change in the number of women joining the bar. However, women's participation in the Indian judiciary has not matched this proportion. It has risen from 5.54% in 1985 to 7.65% in 2005. As of 2020, Women judges in the trial courts are 27%, while in High Courts we are only 11% and I don't think the Bar Council of India has ever had a woman office bearer. There is no women as at present. So, in 2019, only 76 women judges in 25 High Courts that is 7% of the sanctioned strength of 1079.

In September 2020, you'd have no woman judge in Patna, Manipur, Meghalaya, Tripura, Telangana and Uttrakhand High Courts. I think this speaks volumes. Now, when did we get the first woman judge in the Supreme Court, that was in 1989, when Justice Mira Fatima Biwi was appointed after her retirement. The first woman High Court Judge though came in 1959 in the Kerala High Court, that was Justice Anna Chandy. The first woman judge in Delhi High Court came in 1980, and the first woman Chief Justice of High Court came in 1991. Both were Justice Leila Seth, but you know, even in Delhi if you look at appointments from the Delhi High Court Bar Association, I don't think the two women judges who came to the bar that is Justice Sunanda Bhandare or Justice Leila Seth, I’m not sure about Leila Seth, I may be making a mistake, but I think they were both from the Supreme Court Bar Association. So, the first woman lawyer to be appointed as a judge of the Delhi High Court from the Delhi High Court Bar Association was in 2004 when I think I was appointed, If I wasn't the first then I was the second after Justice Leila Seth who was appointed in 1980 and till 2004, not a single woman's elevation in the Delhi High Court. Look at the Supreme Court of India, we have had a total number of only 8 Judges in the Supreme Court from 1950 when it was constituted. Unfortunately, what has been the detriment of women's representation and their effectiveness on the bench has been the late ages at which they are appointed. While the longest tenure of a woman judge of the Supreme Court was at the Justice Ruma pal who got seven years, the longest tenure of a male judge in the Supreme Court was Justice P.N. Bhagwati who got 13 years. Otherwise, by and large, the women judges have been elevated to be given only two or three or four years at the most. Justice Banumathi was appointed at the age of 59 so she goes about six years. But otherwise, by and large, judges have mostly been appointed women judges at the age of 60, or 61, or 62. Now, what is the importance of why gender diversity?  It's sad that we have to talk of gender diversity in a country that is so diverse, where you know women are actually 50% of the population and have really gone to the highest positions. We haven't had to fight for a vice-presidential position, we actually had a woman President of India, a woman speaker, women leading political parties and women ministers.  We haven't had to fight for voting rights yet why this side of disparity and what is the need for having gender diversity.  Courts are symbolic of society. If 50% of the population is not represented then imagine a woman what she must be feeling. Let me recount a story, which Chief Justice Beverley McLachlin, the woman Chief Justice of Canada. She talked about when she was sitting in a courtroom, she saw this male litigant absolutely petrified, he looked so nervous that she was compelled to ask him, what's the matter, are you alright? Can I give you a glass of water? This is what the man said, Your Honour, I feel completely overwhelmed and outnumbered. She looked at her court, and she found a woman judge, woman prosecutor, woman defence lawyer, woman bench clerk, woman stenographer. Now, this is what the man said in a woman's courtroom, imagine what a woman litigant must be facing when she enters a room full of men only. So, therefore, the process will seem less intimidating if we add more women. Then women bring wisdom from the wealth of their experiences, which are certainly diverse and different from what a man has experienced to the bench. So, not only will society be more representative, but women are a very valuable resource and intellectual resource capable of multitasking. This is also an established fact that doctors and scientists also accept. What is even more important is that the bench will be symbolic of real-time equality. The wider range of concentrations in reaching judgment will be evident because women think wider, and as I said bring their own perspective to the bench. And then the bench will incorporate the values of diversity in society, and certain issues which are important to women will be addressed. For instance, an issue like reproductive health is very difficult to start conversations on. What is the importance of contraceptive devices, what is the importance of menstrual hygiene and health issues, these are so important. In Jammu and Kashmir, and I'm sure it's the same experience in other states. I found that for want of toilets, we have such a large tradition, where women students, girl students are concerned when they reach adolescence stage, and they start menstruating. You need clear facilities, and I was so happy that I inaugurated among the first, automatic dispensers and incinerators, and I took it on as public interest litigation and issued orders on this very valuable importance, right of the women. And certainly, the process of ensuring equality is not so difficult today. If you test women on the same, same standards as on which you test men where women lawyers are concerned when it comes to their elevation, they will not be tested on the standards, on which men are tested. In any case, there are no declared standards, which is very unfortunate. There are no objective methods of assessment, even when you elevate from the district judiciary and women and men stand on completely uneven and unequal standings. So you need to ensure that women are given equality, not only in their initial entry to the judicial system, even in their further promotions, and you need to integrate and provide for certain special measures to ensure this level playing field for women, for instance, I know of women judicial officers when it came time for their consideration for elevation, their annual confidential reports were downgraded, because the judge evaluating said that they had been on leave. Now, without looking at what the reason for the leave was, the husband was in the hospital, the mother- in-law was in the hospital or she had been on maternity leave and then you don't factor in children's exams and you don't have toilets, I know several courts where you don't have toilets for women judges, so, therefore, you have created a level playing field for evaluating women for ensuring that their workspace is comfortable. You give them flexible working hours.  A judge can write the same judgment from the house, as she can or he can from the courtroom. You need to be flexible and factor in the diversity, factor in the differences in the requirements and ensure that you create level spaces be it in evaluation be it in work dispensation, be it in judging.  That’s when you come into evaluating one very important factor which I like to point out is that law school admissions are 50%, trial court entry-level, where the examination is the basis of getting into the judicial service, we have almost 50% women joining the Judicial Service. It is only where the constitutional courts are concerned that women are not being considered. And by and large, this is also happening because there are no women in the decision making or the selection groups.  So, this will never happen, so long as you keep women out of the system, you don't let them reach a place where they can be in the decision making, or in the selectors' position and women are losing out a lot because of that. So, you need to develop objective standards. 

You see how many judgments of trial courts are written or made and judge the quality of the judgments. Same thing for elevations within the constitutional court, how much institutional development has been contributed, how many judgments have been written? What is the judge's attitude on inclusion on equality on diversity and what are the other factors you need to create spaces where everybody gets a chance to show their talent and evaluate them on that basis, this is very important for the higher constitutional courts? And this is important to ensure quality and ensure that women reach the same positions as male judges do.

Very true, Justice Mittal. Thank you for bringing out the need for bringing a gendered perspective to adjudication. Only by identifying bias in a purposeful and systematic way can it be eliminated. Justice Mittal, despite all these challenges, how did you make your mind to forge ahead, and what has been your biggest strength as a woman, and as a judge? 

Justice Gita Mittal: Well, I also hit a glass ceiling. But what is interesting is that COVID-19 gave me a chance to read a lot and I happened to pick up some biographies. I read Michelle Obama's becoming, I read Justice Sandra Day O'Connor, she's the first woman judge in the US Supreme Court, I read her book which is on law, and I read a few others, and I found all of them mentioned the glass ceiling even RBG, the famous justice Ruth Bader Ginsburg talks of glass ceilings. But maybe, call my strength and maybe my barrier to, upward mobility has been crucial. I really have looked at it and cherished It, my complete dedication to law,  objectivity and independence. I will not compromise that for any reason. I live by the principles. I used to call them three H's, Honesty, Hard- work and Humility and I have not compromised on these at all. I have an absolute burning desire to do more, I haven't really got into things, because I've got so many irons in the fire I don't know which one I want to do more. So  I'm starting to do a whole lot of things related a lot to social justice and social causes and what stood me in very good stead. I did it as a lawyer, and I continued with it as a judge. I look for rights in every problem and mould the law to ensure those rights for the person affected. Even when somebody came with a very bad case to me, I was able to look for rights. Seeing the agony, or the trouble that the person felt he or she was in, and status does not matter to me at all. Not the status acquired by the position or the authority you are placed at. To me, a magistrate is as important as the Chief Justice of India, because what law empowers a magistrate to do is not something that the district judge or the high court or the higher courts can do. Law is very strict as to what the district judge can do, the magistrate certainly can't, and I , as a High Court judge or the Chief Justice could not. So, in my conversations with judges in order to empower them, I have always said that each of you is absolutely important, take pride in your work take pride in your position,  So when I talk of status it is not only that a position but also the financial status, it does not influence me, It does not matter to me and this is really empowering if you're able to overcome, well I didn't have to overcome because it just didn't matter, but these have been my few strengths and they've stood me in a very, very good light. Even in your some low moments they help you rise above, whatever comes your way.

Ashima Ohri:  Beautiful thoughts, Justice Mittal. The compassion you’ve shown in your time as a Judge is beyond compare. On the occasion of International Women’s Day, what would be your golden piece of advice to women in law and in general. Speaking from years of experience, what is it that you feel that women should be mindful of in this ever so challenging world. 

Justice Gita Mittal: I find amongst the women I know, most of them are the second generation. So, the biggest hurdle, which comes in empowerment and the upliftment of a woman, as a lawyer or as a judge has been if she has been the first generation. My parents were both academicians In fact I always say, I'm the least educated in my family, both my parents were PhDs, my only sister sibling is a doctor who's got an MD and a PhD, and is still pursuing academic. She's a medical professor and very committed. I began with the profession in 1981, and there were hardly any women and women and juniors don't get paid in any case. There used to be a disparity in what women and men lawyers were paid. And this disparity was really huge. So, it was uphill from every task. I travelled in DTC buses. I used to take my senior’s files home because I was very disciplined in my desire to be informed, so I never went to court, even to get an adjournment without reading the court file, and that stood me very well when I became a judge. My advice to all the young ladies who are joining either as students or the judiciary or as lawyers is that don't let anything deter you.  Lack of money, family position, contacts, nothing. You will have disadvantages, accept them. You may not be able to do social networking the same way as men do. Though young people are much more fortunate. There were no lounges or clubs where you could meet and I see many of you go to clients offices to meet clients. We would not do that, well if you were living at home, parents would not permit you. 

My biggest message to all of you is that you must teach yourself to compete only with yourself. Don't feel bothered, if your classmate comes to court in a BMW, looks at the time in a Rolex watch and takes out a fancy pen to put her/his signatures. You keep working at it and compete, only with yourself. What stood me in good stead is honesty, hard work and humility. Do not compromise with these under any circumstance, have the guts to tell a litigant who comes to you with a bad case that I will not file your case. Don't waste your money, you only have a 10% 50% 20% chance. You don't think of it from the perspective that you will lose a brief, or you know you’ll get less money, you will get much more for having been honest and you will feel so good having taken a stand on principle, and having stood by most importantly, the position in law. So, you have to work within the ambit of the legal provision. And what I tell every person I've gone and said this at every law school, I have said it in every judicial training, as you grow and as you climb up the ladder, make sure that you take other women with you. Don't let anything deter you, don't feel discouraged. It's a beautiful world, law is beautiful and standing on principles will take you and help you achieve whatever you want to do in life.

Ashima Ohri:  Thank you so much, Justice Mittal, for joining us and for those lovely thoughts on Three-Hs that we need in life and on our paths to success: Hard Work, Honesty, and Humility! We hope no one  loses sight of the Three-Hs on their way to success. 

Note: The automatic transcription has been lightly edited for a better reading experience. Some names and parts of the transcription may carry inadvertent errors that we are in the process of editing. Thank you for your understanding.