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After Justice Indu Malhotra’s superannuation from the Supreme Court last week, now Justice Indira Banerjee is the only woman judge in the apex court which has the sanctioned strength of 34 judges including the Chief Justice of India. Currently, the Supreme Court has five vacancies of judges and a few more judges will be retired by the end of this year. Up till now, only eight women judges have graced the Supreme Court of India. This is not good news from the gender parity point of view as half of our population is not getting equitable representation in the judiciary. More women judges need to be appointed to maintain a gender balance in the Indian judiciary. Justice Fathima Beevi was the first woman judge of the Supreme Court of India who was appointed in 1989 during the pre-collegium system. The second woman judge of the Supreme Court was Justice Sujata V. Manohar who was elevated in 1994. The third woman judge of the Supreme Court, Justice Ruma Pal came 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 Bhanumathi was elevated to the Supreme Court in 2014. Justices Indu Malhotra and Indira Banerjee came to the Supreme Court in 2018. It is a matter of great pride to state that all these women judges have made a wonderful contribution to the Indian judicial system by delivering hundreds of judgments on a variety of significant issues relating to public, private law, and governance.

Time and again, many people have expressed their concerns about the sparseness of women in the higher judiciary particularly the Supreme Court of India. But unfortunately, no effective steps have been taken by the judge-makers to remove this gap. For this lapse, both the government and the judiciary cannot avoid their responsibility. Before 1993, the Union Executive had a very powerful say in judicial appointments but it did not get time to think about this issue seriously and ignored the representation of women on the top bench for a long time. The first woman judge was appointed in 1989, after 39 years of the Supreme Court’s inauguration in 1950. After 1993, the judges of the Supreme Court snatched the appointment power from the central government to protect judicial independence and devised the unique mechanism of the collegium to appoint judges of the High Courts and the Supreme Court. Sadly, even the Supreme Court collegium also not paid heed to issue of the appointments of women judges in the Supreme Court and High Courts. It seems the collegium missed a great opportunity to bring the women judges in the constitutional courts that could have provided them timely chances to lead the Supreme Court of India one day. The male-dominated Supreme Court collegium was expected to have a more liberal and generous approach in terms of judicial appointments of women in the higher judiciary. It is surprising to learn that the country could not have found a woman Chief Justice of India until now even after seven decades of the Supreme Court’s establishment. This is a highly disappointing situation. The judge-makers might have been given it a serious thought. It all depends on their willpower to the cause of women’s empowerment in the judicial branch that holds a very significant position in our constitutional scheme. Somewhere more genuine efforts should have been made to fulfill this dream of our great founding fathers.

It is not only the common people who are concerned about this issue of great public importance. Some judges of the Supreme Court have also expressed their concerns about the lack of women judges in the Supreme Court on many occasions. A few days ago, while speaking on the occasion of a farewell ceremony organized by the Supreme Court Young Lawyers Forum on March 13 to honour Justice Indu Malhotra, Supreme Court judge Dr. D. Y. Chandrachud said about this issue: “Justice Malhotra’s retirement means that the Supreme Court now has only one female judge on the bench. As an institution, I find that this is a deeply worrying fact and must promptly receive serious introspection”. Further he went on to say that “as an institution whose decision shape and impact lives of everyday Indian, we must do better. We must ensure the diversity of our country find reflection in making up of our court. Intrinsically having a more diverse judiciary is an end, a goal in itself and worth pursuing in its own sake. Instrumentally, having a more diverse judiciary, ensured diversity of perspectives is fairly considered, instils high degree of public confidence.” I think Justice Chandrachud’s above-mentioned remarks will persuade the judge-makers, the G- 5(the Supreme Court collegium headed by the Chief Justice of India and consisting of four of his senior colleagues) to think about this issue urgently and generously. The collegium needs to consider it from a larger perspective that could ensure a fair representation of women on the bench of the top court. It will be in the collective interests of the judiciary if the collegium takes care of diversity on the bench which is need of the hour. It is also heard that the Supreme Court collegium led by Chief Justice Bobde is facing some genuine concerns of geographical representation and seniority considerations but a fine balance needs to be maintained keeping in view the long-term impact of the judicial appointments and some women judges/lawyers may be considered for elevation to the Apex Court at any rate.

This is not the first time that the Supreme Court collegium is facing this kind of situation in selecting judges. Even in the past, the collegium has ignored the seniority of some High Court judges. There are precedents where judges have been elevated to the top court by ignoring the seniority norms. Some judgments of the Supreme Court particularly its 1999 ruling also allow the departure from seniority norms in judicial appointments. There is no hard and fast rule of seniority that prohibits the collegium from elevating junior judges to the Supreme Court. Some brilliant women judges of the High Courts may be considered for the Supreme Court judgeship by relaxing the seniority norms so that they could get an opportunity to lead the Supreme Court in the future. This can be an extraordinary relaxation to ensure gender balance on the bench of the top court. The sky will not fall if the collegium relaxes the seniority constraints. As per media reports, the Supreme Court collegium is considering all these issues. Let us hope for the best. In addition to this, some brilliant women legal academics and lawyers may also be considered for the judgeship in the Supreme Court.

Unfortunately, no law professor has ever been appointed as a judge in the Supreme Court despite the availability of constitutional provisions to this effect. Is it not the time to do justice with the academic community that has made a great contribution to legal scholarship? I think a renowned legal academic should also be appointed as a judge in the Supreme Court to utilize the constitutional provision which allows this kind of appointment.
The Supreme Court collegium has all opportunities to diversify the bench of the apex court. It should not delay this noble work more. It is the real judge-maker in the current constitutional practice and the central government is bound to implement its recommendations. The government can only delay the process but ultimately it will have to implement the decision of the highly powerful G-5. The G-5 may consider ensuring gender justice to the women in the country given the national commitment to the cause of women’s empowerment in the judiciary. The Supreme Court decides many important issues relating to women which can be properly adjudicated only by the women judges. The Chief Justice of India Mr. S. A. Bobde may convince his colleagues to take a tough decision to give more representation to the women in the apex court. Needless to say, taking tough decisions is not an easy task but sometimes it becomes inevitable to make some sacrifices for achieving the higher constitutional goals, and values that are waited for a long time. The Supreme Court of India has always stood for women’s empowerment and there is no reason to think otherwise. India needs more women judges. This is a fact and nobody can deny this truth. From the census point of view also, it needs a top priority to give a reasonable representation to the women in judicial appointments in the country. It is the best time when the top court should have at least 5-6 women judges from different parts and sections of society. Many brilliant women lawyers and judges are available in the country who, if elevated soon to the top court, can reach the top after a few years. Some of them may also become the Chief Justice of India later if the collegium adopts a generous approach in finalizing their names for the judgeship in the Apex Court. I think this is a great opportunity for the collegium to give India its first woman Chief Justice of India and also a few more women judges who can maintain that momentum of gender justice. It is not a difficult task. It just requires a strong commitment to the cause of women’s empowerment in the judiciary and the collegium should not delay the appointment of women judges due to seniority constraints. It should take historical decisions.

by Lokendra Malik
Advocate, Supreme Court of India

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Lokendra Malik

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