By Justice Markandey Katju–
(Justice Markandey Katju is a former Judge, Supreme Court of India, and former Chairman of Press Council of India. The views expressed are his own)
I was motivated to write this article by the judgments and speeches of Justice BV Nagarathna, judge of the Indian Supreme Court, who is in line to become the Chief Justice of India in 2027. I greatly admire her, and not just because she dissented from the majority judges more than three times since her elevation to the Supreme Court (in my opinion, correctly).
Her career graph is given here and here in great detail.
I was particularly impressed by her speech explaining why she dissented from the majority in Vivek Narain Sharma vs Union of India (popularly called the Demonetization Case).
I agree with her views about the role of Governors of states under the Constitution, and her criticism of the way some Governors were behaving in India. I was also impressed with her views on the abortion debate. Her views about women’s equality are also noteworthy, as also her decision regarding hate speech.
I must hasten to add that I admire her not because she is a woman, but because she is a great judge. While I am happy that more women are entering the legal profession as lawyers, I am not a supporter of having greater representation of women in the judiciary as a means of women’s empowerment. This may sound contradictory, so let me explain.
In earlier times, a lawyer’s career was regarded unsuitable for women, and there were very few women lawyers. In fact for a long time in most courts in India under some relevant rules, no woman was permitted to be enrolled as a lawyer, as a woman was not regarded as a ‘person’.
When I started law practice in the Allahabad High Court in 1971 there was only one female lawyer who would come regularly to the court. From time to time, some other young woman lawyer would come to the court, but she would disappear after a few months. When we enquired what happened to her, we were told she had got married.
In other words, she had entered the profession just to while away time before marriage, and was not serious about it.
Today, in almost all courts in India, from district courts right up to the Supreme Court, 8-9% lawyers are women. This is of course a far cry from the ideal of 50%, but it is a great advance over almost 0%.
The view that women are unfit for the legal profession is a myth. The work of a lawyer is mental, not physical. Intelligence Quotient (IQ) tests in modern psychology have proved that an average woman’s IQ is the same as that of an average man. Hence there is no reason why a woman cannot be a good lawyer.
When it comes to appointment as a judge, though, the sole criterion should be the merit of the person, and his/her sex or gender is wholly irrelevant. After all, lawyers and litigants are only interested in high quality justice, and not the sex of the person rendering such justice.
If out of all persons being considered — on the basis of their reputation and knowledge of law — all are found to be men, then 100% of the judges in that court should be men. On the other hand, if all are found to be women, then 100% should be women.
I am totally against applying the women’s reservation law, which reserves one-third of the seats in legislatures for women, to the judiciary.
Justice Nagarathna was selected for being a judge in the Karnataka High Court, and in the Supreme Court, not because she is a woman, but because of her profound legal acumen, as is evident from her judgments, and, of course, her integrity.
