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Saturday, May 08, 2021

Much needed and long overdue: a woman Chief Justice

Women need greater representation across the judiciary, including the Supreme Court. But the appointment of the first woman CJI must not overlook seniority and merit.

Written by Kailash Gambhir |
Updated: April 28, 2021 9:14:24 am
Supreme Court of India

With the retirement of Justice R Banumathi and the recent retirement of another women judge, Justice Indu Malhotra, one can hear voices from the corridors of the Supreme Court (SC) advocating for the appointment of more women judges to the apex court.

This debate is not new, but it has resurfaced again after a judge of the Madhya Pradesh High Court imposed a condition while granting bail to a man accused of sexual assault — that he should go to the residence of the victim and get a Rakhi tied to his wrist. Nine women lawyers approached the SC to challenge the order and while hearing this petition, the SC had issued a notice to the Attorney General to seek his views and suggestions on the issue. Among the written submissions filed by the AG, one was that improving the representation of women in the judiciary could go a long way towards attaining a more balanced and empathetic approach in cases involving sexual violence. The AG also brought up the fact that there has never been a woman Chief Justice of India (CJI).

This set the ball rolling on a discussion about Indian having its first woman Chief Justice, a milestone that should have been achieved long ago. The then CJI S A Bobde, while hearing a petition of a women lawyers’ body seeking consideration for the appointment of meritorious women lawyers practising in SC and high courts, remarked that the time has come for the first woman CJI. Another SC judge and member of the collegium, Rohinton Fali Nariman, while delivering his speech during the 26th Justice Sunanda Bhandare Memorial Lecture, also voiced the opinion that the time for our first woman CJI is not very far off. Justice D Y Chandrachud also raised his voice while delivering a farewell speech on the retirement of Justice Indu Malhotra, saying that it is a deeply worrying fact that with Justice Malhotra’s retirement the Supreme Court has only one female judge on the bench. He added that “Instrumentally, having a more diverse judiciary ensures [that] diversity of perspectives is fairly considered, instils a high degree of public confidence.”

I concur with the views of my esteemed brother judges. It is now a reality that presently, the Supreme Court is left with only one woman judge, Justice Indira Banerjee, who is also going to retire next year, after which, the SC will be left without a woman judge. The collegium failed to take timely steps to elevate more women judges in the SC. In the 71 years of history of the SC, there have been only eight women judges — the first was Justice Fathima Beevi, who was elevated to the bench after a long gap of 39 years from the date of establishment of the SC.

The situation is not any different in developed countries such as the US, UK, Ireland, France and China. Expressing concern over the gender imbalance, the United Kingdom Supreme Court President J Lord Robert John in his speech at the International Judicial Conference said: “The low proportion of women judges on our highest courts is a problem in my country and it is one which we share with many others.” According to the data collected by Smashboard, a New Delhi and Paris-based NGO, not only has no woman ever been appointed as the CJI, the representation of women across different courts and judicial bodies is also abysmally low.

All these facts paint a grim picture of the representation of women in the judiciary. There is no doubt that CJI Bobde has left a legacy of not having recommended any judge for elevation to the Supreme Court. Although his tenure was overshadowed by the pandemic, he had many an opportunity to have fruitful interactions with the members of the collegium to arrive at a consensus to recommend appointments. By passing the laudable order of setting timelines for appointment of judges on April 20, just before demitting office, his was a last-ditch effort with good intentions.

In the last few meetings of the collegium, there has been some talk of promoting women to the apex court and the prominent name that surfaced was that of Justice B V Nagaratha of the Karnataka High Court, who was appointed as a judge of Karnataka High Court on February 2, 2008, and will retire on October 29, 2024. If she is elevated to the Supreme Court, she could become the first woman CJI in February 2027. She is presently the senior-most judge in the Karnataka High Court and is at Serial No. 33 in the all-India seniority list of high court judges. Currently, she is the only woman judge who can reach the position of CJI. Another fact, which is no less important, is that her elevation will lead to the supersession of 32 senior judges, amongst them, 19 are chief justices and some of the seniormost are already in consideration to enter the Supreme Court. There is also a senior woman judge, presently the Chief Justice of Telangana High Court, who is in line to enter the Supreme Court.

This supersession in a bid to see a woman in the highest judicial office cannot be overlooked. Supersession itself is perceived as a threat to an independent judiciary. Seniority combined with merit is the sacrosanct criteria for promotion in the judiciary. History is replete with instances when meritorious judges were superseded. How demoralising and frustrating this is, only the judge superseded knows. Let it not happen again. Justice Nagaratha can become the first woman CJI even without superseding so many senior judges, though her tenure will be shorter.

How CJI N V Ramana will give leadership to the SC and secure the trust of members of his collegium to fill the backlog of 411 vacancies across high courts and six vacancies in the SC remains to be seen. Hopefully, under his leadership, justice will be done to Justice Akil Kureshi over whose name there has been a deadlock. And a greater number of women in the Supreme Court eventually leading to a woman CJI. This would be a gratifying change, which may mark the beginning of a new era of judicial appointments.

This column first appeared in the print edition on April 28, 2021 under the title ‘Diversity and propriety’. The writer is a former judge, Delhi High Court.

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