Sultan Iltutmish has the distinction of being the only ruler of medieval Delhi to be succeeded by a woman. During his lifetime, he had declared his daughter Razia as his heir, impressed by her ability to administer Delhi in his absence. But patriarchy and intrigue both ran deep in the Delhi Sultanate. Its power brokers ensured the succession of the king’s son Rukn-al-din instead. When Razia was ultimately crowned, she was quickly deposed in favour of another son, Bahram. The deep state of the Sultanate conspired to deny Razia her due.
In a modern retelling of the Iltutmish succession tale, Chief Justice of India Sharad Bobde too tried and failed to appoint a woman judge who would go on to serve as the first woman Chief Justice of India. According to newspaper reports, it was Chief Justice Bobde’s insistence on appointing Justice BV Nagarathna, judge of the Karnataka high court to the Supreme Court that led to an unprecedented deadlock within the collegium of judges. It appears that a minority of his brother judges in the collegium refused to concur. India still awaits its Razia on the chair of the Chief Justice of India.
Two objections have purportedly been raised to Justice Nagarathna’s candidature. First, that there are judges more senior to her, with a first shot at appointment. However, any argument on seniority is a fig leaf. When Justice KM Joseph was recommended to the Supreme Court, the government used precisely this argument – that Justice Joseph was 45th in all-India seniority and should not be considered. The collegium reiterated his name because they believed merit trumped seniority.
It also made a similar recommendation to appoint Justice Nazeer to the Supreme Court when he was not even Chief Justice of a high court, a seniority-defying recommendation that the government accepted. The rules seem to apply differently when a woman judge is being considered for appointment.
Second, it has been claimed that she would be the fourth judge from Karnataka in the Supreme Court. While this would give Karnataka the status of the most represented high court in the Supreme Court, there is no principled reason to consider that in itself objectionable. This is because no benchmarks exist regarding acceptable representation. If representation is pegged to the state population, Allahabad ought to be the most represented court. But it isn’t – that distinction goes to Bombay, despite Maharashtra being the third most populous state.
Again, if representation is pegged to judge strength in the high court, Delhi, with 60 judges (the seventh largest high court) has no reasonable basis to have 3 of its judges in the Supreme Court (the second largest representation). What makes this objection ironic is that, according to the same newspaper reports, certain collegium members have apparently insisted that Justice AS Oka, Chief Justice of Karnataka be appointed before considering Justice Nagarathna. The fact that Justice Oka belongs to the Bombay high court and his appointment would skew regional representation as much as Justice Nagarathna’s appointment would, does not appear relevant. Arguments about state representation are merely convenient tactics to reward some and deny others.
This episode, at some level, is not about Justice Nagarathna at all. To understand the real reason for the deadlock in the collegium, one needs to look elsewhere. On January 28, 2000, the 50th anniversary of the Supreme Court, Justices Yogesh Sabharwal, Ruma Pal and Doraiswamy Raju took oath as judges of the Supreme Court.
If Pal had taken oath first, she would have become the first woman Chief Justice of India, in due course capping off a historic day; but Sabharwal was invited first, giving him a longer tenure as Chief Justice and denying Pal. The fact that Sabharwal had spent more years as a judge was hinted as the reason for him to go first, though no clear precedent of this kind existed. Whenever it comes to considering women judges for the office of Chief Justice of India, obscure reasons are found to tiptoe around the issue.
This pattern will keep repeating itself if decisions to recommend judges are taken by senior judges in closed-door collegium meetings with no reasons provided or records disclosed. For the incoming Chief Justice of India, there is time to redeem the closed-door collegium system by persuading his holdout colleagues to rise above their objections or publicly disclose their reasons for refusal.
This is critical if India’s justice system is to retain the faith of half of the country’s population – its women. With the brutal gang rape of a girl in suburban Hyderabad followed by a gruesome rape in Hathras, the ability of our courts to deliver justice to women swiftly and fairly is in serious doubt. No more proof is required of this receding trust than the elation which greeted the ‘encounter killing’ of the alleged rapists in Hyderabad.
At this time, more than ever, appointing a woman to serve as the future Chief Justice of India will be a powerful symbol that the justice system has begun its slow process of redemption. The members of the collegium would do well to recognise this salient fact. Or at least recognise a lesson of history – even Razia, despite her short four-year tenure, is widely remembered today along with her father Iltutmish. Her brothers, rulers themselves, are almost entirely forgotten.
Views expressed above are the author’s own.
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