Follow Us:

‘India needs more women judges’ – The Saturday Interview

In the US, the states’ constitution can give greater rights than those given by the federal constitution.

Statesman News Service | New Delhi |

Sworn in as Associate Justice in 2011, Justice Sabrina S McKenna is a judge of the Supreme Court of Hawaii, USA. She is also Honorary Adjunct Professor, Jindal Global Law School, Jindal Global University. A graduate of the University of Hawaii at Manoa and a 1982 graduate of the University of Hawaii William S Richardson School of Law, Justice McKenna was a civil litigator, corporate counsel, and law professor before becoming a Hawaii state trial court judge in 1993.

This judicial luminary carries varied experience from her positions as a trial court judge, acquired as she presided in district, circuit and family courts.

In an interview with AJITA SINGH, Justice Mckenna says the judiciary must reflect the general populace. Excerpts:

Q: In India we focus on gender justice and equality. What is your opinion on the issue, and how much has been done in your country for justice of equality?

A: I gave a talk and one of the topics was gender. What I think made a big difference in the United States is a 1972 law called Title Nine, it’s spelled as Title IX. That law prohibited gender discrimination in educational institutions receiving federal financial assistance. Before that law was passed, in 1972 for example, only 7 per cent of US law graduates were women. Only 9 per cent of medical school graduates were women. Now over half of medical and law school graduates are women, and it’s not just Americans.

Q: How is gender equality important for the world?

A: The law has made all the difference in the world. It has created economic opportunities, opportunities for advancement, though the United States still has a long way to go. We have discrimination. You can see it by the way certain political candidates are treated. But I do strongly believe that the Indian judiciary needs to become more diverse. I think judiciary should reflect the population. In the state of Hawaii, 41 per cent of our judges our women, half of our lower court judges are women and I think it is important for people to see judges that look like them and represent society. In India, I think there should be a transparent system, and not political. But I hope to see more than three female justices in the Supreme Court of India. I don’t think that’s right, especially if you have so many accomplished and intelligent women in this country.

Q: How different is your judiciary from India?

A: In our country, there are 50 states, so we are the highest court of our state. States have more power in the federal system. Each state has its own Constitution and its own three branches of government. Actually, your judiciary is national: we have state judiciary. We are the highest decision-makers when it comes to the matters of State law including the state constitution. The difference between your Constitution and US constitution is that, for example, my constitution recognises certain states can have their own laws and but even though you have gender equality under the Indian constitution, state laws – for instance sharia law – can restrict rights. That cannot happen in the United States.

Q: Can you elaborate?

A: In the US, the states’ constitution can give greater rights than those given by the federal constitution. For example, Hawaii was the first state in the world to rule that denial of same sex marriage could be unconstitutional under the state constitution and that was in 1993. So, it was Hawaii that started that trend or conversation. Now 26 states recognise same sex marriage. So, we construe the Hawaii constitution, we construe the Hawaii laws and all the issues. We also have the power to decide issues of federal law. If we decide a case based on federal law, the parties can appeal to the United States Supreme Court but it’s not an automatic appeal, it’s a discretionary appeal. The US Supreme Court decides whether or not to take the case. Maybe in one case every 3 years, the US Supreme Court would consider hearing our decisions. But, in general, our decisions are final.

Q: How long does it take to adjudicate a case in your country? Are there no pending cases?

A: My understanding is that… it seems like people here can continue to file appeals to your Supreme Court. Our Supreme Court, whether it’s the United States Supreme Court or the state supreme court, it’s discretionary. We don’t have to take up the case. We take what we think we need to take. We hear what we think needs to be decided. It depends on the case. Some cases move up to us quickly, by quickly, I mean within a year or two. In some cases, it depends on the intermediate court, it takes some time for them to decide the case, a couple of years and then it gets to us. But our cases, we decide within a year or two. We do not have continuing mandamus jurisdiction; once we decide a case, we cannot revive it.

Q: Do you also have review petitions?

A: Oh right, like your Section 377 decision, a decision was made and then reviewed… We do not have that, once we decide a case, it’s gone and if we want to address the issue again, it has to be a new case. That’s how it works for us and we don’t have suo moto jurisdiction either. Indian courts are much more powerful. We can only decide what comes to us. We can’t say ‘you know what, let’s go look at that issue again’. We can’t do that.

Q: So, what are some of the traits which are more advantageous for people in your country than in our country and vice versa?

A: I think we have more lawyers to represent people. I think, we have a population approaching 1.4 million. So, we are like a thousand times smaller than your country. For 1.4 million people in the state of Hawaii, we have about 4,500 active attorneys. I know that we have a lot more lawyers per person than you do. Our system works somewhere between the British and US one.

Q: What’s the best thing about Indian judiciary?

A: I think the public interest litigation rights are pretty strong. I think it’s much stronger than our system, I think there are more limitations in our system, but like I said each state has its own constitution and we can construe our own constitution. So, for example we have a right to a clean and healthful environment in the Hawaii constitution. Several months ago, we issued a judgement saying that a person can sue to enforce their right to a clean and healthful environment.

Q: Do you spot some trait of Indian judiciary which you feel can be adopted in your system to make things better?

A: I really like the idea of suo moto jurisdiction but that will not happen in America. I don’t think that would happen in America, we can’t pull in cases… we have to wait for the cases to come to us.

Q: And what do you think India can take from you to make the system much more advantageous for the people?

A: I think I would like a system that will get more women judges. I think a more diverse judiciary would be good.

Q: What made you become a judge?

A: I became a judge pretty young. I was 35 when I was appointed, when I was nominated. I was 36 by the time I sat. I’m not from Hawaii. I grew up in Japan, I went to the University of Hawaii, and I ended up getting a scholarship because of Title IX playing basketball. People in Hawaii are warm, kind and gracious. Similar to Indian culture in many ways and the people were so kind to me. I attended a law school at the University of Hawaii, the tuition was so cheap, and I got a wonderful education and got to be a lawyer. I was a business type of lawyer and I was making very good money and then I realised that I could serve the community and care for the people of Hawaii by being a judge as I had the temperament, knowledge, experience and perspective.