Structural and Discretionary Bias: Appointment of Female Judges in India

34 Pages Posted: 4 Dec 2019 Last revised: 25 Aug 2020

See all articles by Aishwarya Chouhan

Aishwarya Chouhan

Nirma University, Institute of Law, Students

Date Written: November 7, 2019

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 qualitative 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 policies: 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. I conclude that the prominent reason for gender-biased appointments 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.

Keywords: Gender Equality, Women Judges, Appointment Bias, Seniority Norm, Transfer Policy

Suggested Citation

Chouhan, Aishwarya, Structural and Discretionary Bias: Appointment of Female Judges in India (November 7, 2019). Georgetown Journal of Gender and the Law, Vol 21 Issue 3 , Available at SSRN: https://ssrn.com/abstract=3482483 or http://dx.doi.org/10.2139/ssrn.3482483

Aishwarya Chouhan (Contact Author)

Nirma University, Institute of Law, Students ( email )

Sarkhej-Gandhinagar Highway
Gota
Ahmedabad, Gujarat
India

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