In the contemporary epoch marked by the notable strides of women across diverse domains, it is discernible that the Indian judicial sphere grapples persistently with a conspicuous gender disparity. Presently, amidst the 34 justices presiding in the Supreme Court, merely three adorn the feminine echelon, accentuating an incongruity that beckons scrutiny.
In the democratic milieu of India, where diversity epitomizes efficacious institutions and the inclusion of women stands as a pivotal facet, their participation in the judiciary assumes categorical significance. Nevertheless, a glimmer of optimism gleams on the horizon with the potential ascendance of Justice B V Nagarathna to the position of the inaugural female Chief Justice of India in the year 2027. Elevated to the exalted position of a Supreme Court justice on August 31, 2021, she stands poised to serve as the first woman CJI post-September 23, 2027.
While this juncture may be hailed as a watershed moment for women’s empowerment within the judiciary, the felicity is ephemeral for B V Nagarathna, with her tenure as a Supreme Court justice concluding on October 29, 2027. Consequently, her stint as the premier woman Chief Justice of India is confined to just over a month.
In October of the preceding year, Chief Justice of India D Y Chandrachud asserted that akin to the firm entrenchment of gender equality in district courts, a commensurate representation of women is anticipated in constitutional courts within a decade or two. This Women’s Day serves as a poignant reminder to both the government and the judiciary to accord heightened attention to the pervasive underrepresentation of women in the upper echelons of the judicial hierarchy.
According to the United Nations, the representation of women in the judiciary is pivotal to ensuring that courts truly mirror their citizens, address their concerns, and dispense judicious rulings. The mere presence of women justices augments the legitimacy of the judicial system, sending a potent signal that the courts are open and accessible to those seeking redressal.
During a September 2021 event, attended by the then Chief Justice of India N V Ramana, Justice Nagarathna avowed, “it is time to shatter the glass ceiling and time for women to endeavor ahead.” In a December interaction with a television channel, she highlighted the increasing participation of women in the traditionally male-dominated realm of the country’s judiciary.
On January 8, heading a Supreme Court bench, Justice Nagarathna rendered a landmark verdict in the poignant case of Bilkis Bano. The apex court nullified the remission granted to 11 convicts by the Gujarat government, contending that the state government had “no jurisdiction” to do so. Criticizing the state government scathingly, Justice Nagarathna observed that the Gujarat government was “complicit” and “acted in tandem” with the convicts in misleading the court by suppressing crucial facts.
In 2023, presiding over a five-judge Constitution bench, Justice Nagarathna left an indelible mark by issuing two distinct judgments in as many days, including a dissenting stance on the 2016 demonetization exercise. In her dissent, she contended that the exercise was unlawful purely on legal grounds, notwithstanding the ostensibly ‘noble objectives’ of the scheme.
Highlighting that the records submitted by the Reserve Bank of India (RBI) indicated its lack of independence, Justice Nagarathna underscored that the proposal for the 2016 demonetization exercise originated from the Union and not the RBI.
A day subsequent to the demonetization judgment, Justice Nagarathna once again diverged on several points from the four other judges on the constitution bench. She asserted that fundamental rights under Articles 19 and 21 of the Constitution cannot be enforced against entities other than the state or its instrumentalities. However, they may form the basis for seeking common law remedies.
The India Justice Report (IJR) of 2022 divulged that there is a higher prevalence of women judges at the district court level compared to the high court level, with 35% of the total number of judges at the district court level being women, while only 13% hold similar positions at high courts nationwide.
In a televised interaction, Justice Nagarathna emphasized the challenges women face in sustaining their legal careers, especially after marriage and childbirth, emphasizing the indispensability of support from family, seniors, and the broader system.
Historically, the exalted position of Chief Justice of India has remained elusive for women, with Justice Fathima Beevi becoming the first woman to grace the Supreme Court bench in 1989.
This Women’s Day, the custodians of justice must ardently strive to surmount the inertia hindering the evolution of more inclusive institutions for women, contemplating an overhaul of the recruitment system if necessary to eradicate any vestiges of gender discrimination.