Though justice is usually portrayed as a woman, it has in general been embodied by men. The Supreme Court of India is also one such example. It has a strength of 34 judges including the Chief Justice of India. But it has only two women judges and one of them is going to retire within a few days. Even after 70 years of its existence, the top court could not have a woman Chief Justice. 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 who was 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 Bhanumathi was elevated to the Supreme Court in 2014. Justices Indu Malhotra and Indira Banerjee came to the Supreme Court in 2018. All these women judges have made a great contribution to the Indian judicial system by delivering wonderful judgments on a variety of significant issues relating to public, private law and governance.
Surprisingly, the judge-makers of our country could not find a woman judge or academician who may become the Chief Justice of India even after seven decades of the establishment of the Supreme Court. The reason is very simple. First, a lack of will power, and second, the formality of seniority convention. The Chief Justice of India is appointed on the basis of the seniority convention and no lady judge reaches in 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 this seniority convention has been breached in 1973 and 1977 during the tenure of Prime Minister Mrs. Indira Gandhi. The legal fraternity had criticized such judicial supersessions strongly. But thereafter the seniority convention has been consistently followed 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. So, the Supreme Court collegium may consider bringing a woman judge to the Supreme Court who can have a long tenure of service so that she can become the Chief Justice of India after a few years as per the seniority convention. Bypassing the seniority convention is neither possible nor desirable as the judicial supersessions cause irreparable damage to judicial independence and give an unwanted opportunity to the executive to control the judiciary. Only the timely appointment of a woman judge with having long tenure is the best solution to give India the first woman Chief Justice. And for this purpose, the Supreme Court collegium should take initiative. As the ultimate decision making-power pertaining to the elevation of the judges in the Supreme Court lies upon the Collegium, it becomes a moral responsibility of the Collegium to undertake this task.
Post-1993, the judiciary has snatched the judges’ appointment power from the executive through constitutional interpretation. Before 1993, the Prime Minister and the Union Law Minister were very powerful in making judicial appointments. But now 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. The central government has little say in judicial appointments. Its main job is to implement the decisions of the collegium. However, it has some scope to delay judicial appointments. 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. The Chief Justice of India has no veto power in judicial appointments. He has to build a consensus among all his colleagues and finalize the names accordingly. 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 but 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 S A Bobde. Its other members are: Justices N V Ramana, R F Nariman, U U Lalit, and A M Khanwilkar. As of now, the Supreme Court has four vacancies and five more judges will retire by the end of this year but 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 and it has not made a consensus on a few names of 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 H L Dattu when there was an unprecedented deadlock between the central government and the judiciary on the issue of National Judicial Appointments Commission, popularly known as NJAC. After Bobde’s retirement, Justice N V Ramana is likely to become the Chief Justice of India as per the order of seniority.
It is not that brilliant women High Court judges are not available 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 India. It is not a difficult task. It requires a 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 given the state of underrepresentation of women judges in the country. The Court decides many important issues which can be properly be adjudicated by the women judges. Some brilliant women lawyers can also be considered for the judgeship in the top court. There is no dearth of brilliant women lawyers in the country. Justice Indu Malhotra is the first woman advocate who was directly elevated to the Supreme Court. This trend of making appointments from the bar needs to be continued in the future also.
Notably, when it comes to the question of appointment of judges to the Supreme Court from the High Courts, seniority and regional representation are also major criteria that the Supreme Court Collegium considers but there is no such fixed rule and precedents are always there where judges have been directly elevated to the Supreme Court by relaxing the seniority norm. In absence of any institutional representation in form of reservation, the women representation continues and probably will continue to be skewed in ratio. The fact that 70 years of independence could produce only handful of women judges in the Supreme Court needs to be analysed carefully. It is not like that diversity has not been a considerable factor in the Collegium resolution. Collegium has always kept diversity as one of the factors before elevating a judge to the bench, ensuring there is equitable representation of the High Courts from different regions, as well as of different religion. However, on the gender-inclusivity front, the Supreme Court has not been able to contribute much. A joint reading of article 124 (2) (appointment of judges) and the Supreme Court Advocate on Record Association (1993) will patently show that the provisions of appointment or elevation of judges are gender-neutral, however, the pragmatic reality of gender-ratio of women judges in Supreme Court might turn the contours of article 124 (2) gender exclusive. It not deniable fact that half the Indian population consists of women, in this scenario, the fact that there is no women CJI so far denies them their census(al)-equality. Therefore, the fact that article 124 stays mum on the concept of reservation in the Supreme Court, it cannot be taken as an impediment for the Indian Parliament to bring a required change and eventually provide for the institutional representation to the gender-diversity of India.
The other way of securing women representation would be the judicial will-power to do so. There are no written rules that stop the collegium to appoint a High Court judge or a practicing lawyer or a distinguished academician 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, it can do so and a woman judge can also be appointed to the Supreme Court at this time. So, all this depends on the will power of the collegium which has a conclusive power in judicial appointments. Parliament too has been actively involved in this question, in 2020, DMK MP P.Wilson had raised this question in the Parliament, that the Supreme Court is having a diversity deficit and is not able to represent the diversity of Indian society. In a reply send by Law Minister Mr. Ravi Shankar Prasad to MP P.Wilson, the Law Minister quite categorically said that the provision dealing with judicial appointment (Article 124) does not provide for reservation. Additionally, Mr. Prasad also said that Centre has been entreating upon the need to give consideration upon suitable candidates belonging to Scheduled Caste, Scheduled Tribe, minorities and women while making appointments to High Courts. However, in the end, the central government will have no option but to act on the collegium’s recommendation. And there is no reason to assume that the central government will not appreciate this idea that promotes women’s empowerment. So, now the ball is in the collegium’s court. I think the time has come when the Supreme Court collegium should give India a future woman Chief Justice of the Supreme Court. Last year, Attorney-General K K Venugopal had also said that there has never been a woman CJI. It indicates that even the government wants to see a woman as CJI in the near future. Hope the learned judges who are members of the collegium would understand the sentiments of the people and will make history to give India the first CJI. No more delay please dear judge-makers.