The Womb
Legal Opinion

In search of the first woman Chief Justice of India

Even after 70 years of its existence, the top court has not had a woman Chief Justice of India.

Lokendra Malik
First Published on Bar and Bench:
28 Mar, 2021 , 5:38 am

Though justice is usually portrayed as a woman, it has in general been embodied by men. The Supreme Court of India is also mainly a male-dominated institution. It has a strength of 34 judges, including the Chief Justice of India, but it has only one woman judge after the recent retirement of Justice Indu Malhotra.

There have been very few women judges in the Supreme Court up till now. Justice Fathima Beevi was the first woman judge of the Supreme Court of India, appointed in 1989. The second woman judge was Justice Sujata V Manohar, who was elevated to the Supreme Court in 1994. The third woman judge, Justice Ruma Pal, came to the Supreme Court in the year 2000. After her retirement, it was Justice Gyan Sudha Mishra who came to the Supreme Court in 2010. In 2011, Justice Ranjana Prakash Desai was appointed to the Supreme Court. Justice R Banumathi was elevated to the Supreme Court in 2014. Justices Indu Malhotra and Indira Banerjee, who will retire next year, came to the Supreme Court in 2018. All these women judges have made great contributions to the Indian judicial system by delivering judgments on a variety of significant issues relating to public, private law, and governance.

Even after 70 years of its existence, the top court has not had a woman Chief Justice of India. The reason is very simple. First, a lack of willpower on the part of judge-makers, and second, the formality of seniority convention plays a very significant role in making the Chief Justice of India. No lady judge reaches that zone of consideration because of the lack of seniority. For reaching the top position in the apex court, a judge needs a fairly long tenure of eight or nine years.

Only two times was this seniority convention breached – in 1973 and 1977 during the tenure of Prime Minister Mrs. Indira Gandhi – when junior judges were appointed to the office of the Chief Justice of India by superseding their seniors. The legal fraternity had rightly criticized such judicial supersessions. But thereafter, the seniority convention has been followed consistently in the appointment of the Chief Justice of India and there does not seem to be any apprehension of its dilution in the future as the Supreme Court has also approved this seniority convention in the Second Judges’ case in 1993.

The Supreme Court Collegium may consider elevating a woman judge who can have a tenure long enough to become the Chief Justice of India as per the seniority convention. This is a much-needed step toward the cause of women’s empowerment in the judiciary. Bypassing the seniority convention is neither possible nor desirable as judicial supersessions cause irreparable damage to judicial independence and give unwanted opportunity to the executive to control the judiciary. The timely appointment of woman judges so that they have long tenures is the best solution. And for this purpose, the Supreme Court collegium should take the initiative.

Post-1993, the judiciary has taken the power to appoint judges from the executive through constitutional interpretation, in the larger interests of judicial independence. Before 1993, the Prime Minister and the Union Law Minister were very powerful in making judicial appointments. They were the real judge-makers in the country. But now they have lost such influence. Under the existing practice, the judges of the Supreme Court are appointed by the President of India on the recommendation of the Supreme Court Collegium, which is headed by the Chief Justice of India and consists of four of his senior-most colleagues. This Collegium is the actual judge-maker and the President, Prime Minister, and the Union Law Minister have little say in judicial appointments.

However, the Central government has some scope to delay judicial appointments in some cases. The decisions of the Collegium are made by consensus. If two or more judges oppose the Chief Justice’s proposals, the Collegium cannot finalize the names and the President is also not bound to accept such recommendations. This exercise is done to eliminate the sole authority of the Chief Justice of India in judicial appointments. Now the CJI has to build a consensus among all his colleagues and finalize the names accordingly. He cannot ignore their views at all.

The President of India is bound to act as per the recommendation of the Collegium if it decides the names by consensus. However, the President, as aided and advised by the Prime Minister, has an option to return the recommendation of the Collegium once for its reconsideration. Thereafter, the President is bound to accept the Collegium’s recommendation if it reiterates its view. In other words, the Collegium has the final say in judicial appointments.

The present Supreme Court Collegium is headed by Chief Justice SA Bobde. Its other members are Justices NV Ramana, RF Nariman, UU Lalit, and AM Khanwilkar. As of now, the Supreme Court has four vacancies and five more judges will retire by the end of this year. Despite this, the Collegium headed by Chief Justice Bobde has not made even a single appointment to the Supreme Court. As per media reports, there is some deadlock in the Collegium, which has not reached a consensus on Chief Justices of High Courts who are eligible for elevation to the top court as per the seniority rule.

Chief Justice Bobde will retire next month. The last time a Chief Justice of India retired without recommending a single appointment to the Supreme Court was in 2015 (during the tenure of Chief Justice HL Dattu), when there was an unprecedented deadlock between the Central government and the judiciary on the issue of the National Judicial Appointments Commission (NJAC). After Chief Justice Bobde’s retirement, Justice N V Ramana is likely to become the Chief Justice of India as per the order of seniority.

There is no dearth of brilliant women High Court judges and lawyers in the country. There are many brilliant women lawyers and judges who, if elevated soon to the top court, can become the Chief Justice of India after a few years as per the seniority rule. The biggest issue is to include them in the seniority circle so that they could come to the top after a few years. I think this is a great opportunity for the Collegium to give India its first woman Chief Justice of the Supreme Court. It is not a difficult task. It requires strong commitment to the cause of women’s empowerment in the judiciary.

In addition to this, the Supreme Court needs more women judges also. There should be at least four to five women judges in the Supreme Court. The Court decides many important issues which can be properly adjudicated with the help of a woman judge’s perspective. Some brilliant women lawyers can also be considered for the judgeship in the top court.

Justice Indu Malhotra is the first woman to be directly elevated from the Bar. This trend of making appointments from the Bar needs to be continued in the future also. Some brilliant legal academics can also be considered for judgeship in the Supreme Court, given the constitutional provision of appointments of ‘distinguished jurists’ to the top court.

When it comes to the question of appointment of judges to the Supreme Court from the High Courts, seniority and regional representation are the major criteria that the Collegium considers. But there have been instances where judges have been directly elevated to the Supreme Court by relaxing the seniority norm. It is not rocket science. If senior women judges are not available, there are no written rules that stop the Collegium from appointing a High Court judge or a practicing lawyer to the Supreme Court. Ultimately, the final choice of judges depends on consensus within the Collegium. If all the collegium members decide that it is time to recommend a woman judge’s name for the Supreme Court judgeship, they can do so and a woman judge can be appointed to the Supreme Court at this time.

So, all this depends on the will power of the Collegium, which has conclusive power in judicial appointments. There is no reason to assume that the Central government will not appreciate this idea, which promotes women’s empowerment. So, now the ball is in the Collegium’s court.

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