It is no surprise that the first woman judge to be appointed to the Supreme Court of India came from Kerala. After all, the first woman to become a judge of the high court, Justice Anna Chandy, was also from Kerala, a state that continues to have the highest human development indicators and literacy rates in the country. Justice Fathima Beevi was appointed to the Supreme Court in October 1989, when the late Rajiv Gandhi was the Prime Minister, E S Venkataramiah was the Chief Justice of India and R Venkataraman, the President. Little did the late Justice Venkataramiah know that one day, as a consequence of the decision he took to appoint the late Beevi, his own daughter would go on to become the first woman Chief Justice of India! But did it have to take so long for that to happen?
But let’s come back to the late Fathima Beevi. Her achievements were spectacular for more reasons than one. From being a munsif at the Kerala subordinate judiciary via the district court to the high court, she finally reached the Supreme Court (SC). This would give her an advantage that many judges do not have, recruited as they are directly from a high court practice and never having seen the inside of a magistrate’s court or a sessions court. Criminal law, after all, concerns life and liberty more precious than any commercial asset, requiring therefore, a hands-on knowledge of the inside of a trial court.
She was appointed governor of Tami Nadu and, in that capacity, she swore in an AIADMK government led by J Jayalalithaa, a decision that was set aside by the Supreme Court. That, however, is the way systems between the judiciary and the executive work, each independent in their own sphere. She is known not to have regretted her decision in that regard.
Fathima Beevi said in an interview, “I have opened doors.” What she must have meant was that she expected other women to walk through the door, but did they? History stands testament to the fact that the representation of women on the benches of our high courts and the Supreme Court is abysmally poor.
So why is it important to ensure better representation on the benches of our courts? Here is a little anecdote from my work. I was representing Rupan Deol Bajaj in the SC of India in her case of sexual harassment against the late K P S Gill. She asked me “Why is my case not listed before a woman judge?” After all, it is the Supreme Court that has said that an internal complaints committee must be headed by a woman. My answer to her was simple: “Because there isn’t one.” It’s a different story that the two male judges decided the case in her favour. The learnings from this are clear. Courts exist for litigants and they feel comfortable approaching a court for justice when they can identify with the judge in some way as “one of their own”, expecting the judge to bring life’s experience to the bench. Notably, the current collegium headed by the Chief Justice, which has made 14 appointments, has yet to appoint a woman to the Supreme Court bench. The second and more important learning is that it is never a given that women judges will decide in favour of women and male judges will decide against women. Patriarchy, like Brahminism, is an ideology to which people subscribe regardless of their gender.
And yet, it is important that our national institutions reflect the diversity of the people who approach the courts. It gives a sense of confidence to them in the institution. Today, women outnumber men in law schools, our courts are flooded with women lawyers sufficiently senior to warrant their appointment. But still, the number of women appointed to the benches of high courts and the Supreme Court is abysmally low. Diversity in national institutions is an end in itself and is an essential aspect of democracy. Diversity in the judiciary should include the appointment of women, Scheduled Castes and Scheduled Tribes in much larger numbers. In Amrit Kaal, by sheer lapse of time, there is no lack of legal talent in this country.
However, the rationale for diversity to our policymakers must be clear: Diversity is a democratic imperative. When women are given reservation in Parliament in the name of “nari vandan”, our constitutional mandate of equality is forgotten. This lapse of memory also accounts for the problems women face after appointment. Sexual harassment of woman judges is not unknown to our legal system — on the record, many woman judges have complained of it.
There are other problems as well. Women judges who are probationers in the lower courts seem to be judged more harshly than others, and the number of women who are not confirmed post-probation is disproportionate to that of men. At least one additional woman judge of the high court was not confirmed for a judgment she wrote, while many of her male colleagues who are permanent judges suffered no consequences for judgments that were much worse in terms of gender justice. While we need more women judges, we need to foster a more holistic approach to the problem of this form of democratic deficit, namely, the creation of an enabling environment where we can all function as equals. Fathima Beevi did open the door, but it’s a revolving door, sometimes letting women in and sometimes, keeping them out.
The writer is a senior advocate and former Additional Solicitor General of India
Fathima Beevi did open the door, but it’s a revolving door, sometimes letting women in and sometimes, keeping them out
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25.11.2023
It is no surprise that the first woman judge to be appointed to the Supreme Court of India came from Kerala. After all, the first woman to become a judge of the high court, Justice Anna Chandy, was also from Kerala, a state that continues to have the highest human development indicators and literacy rates in the country. Justice Fathima Beevi was appointed to the Supreme Court in October 1989, when the late Rajiv Gandhi was the Prime Minister, E S Venkataramiah was the Chief Justice of India and R Venkataraman, the President. Little did the late Justice Venkataramiah know that one day, as a consequence of the decision he took to appoint the late Beevi, his own daughter would go on to become the first woman Chief Justice of India! But did it have to take so long for that to happen?
But let’s come back to the late Fathima Beevi. Her achievements were spectacular for more reasons than one. From being a munsif at the Kerala subordinate judiciary via the district court to the high court, she finally reached the Supreme Court (SC). This would give her an advantage that many judges do not have, recruited as they are directly from a high court practice and never having seen the inside of a magistrate’s court or a sessions court. Criminal law, after all, concerns life and liberty more precious than any commercial asset,........
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