New Delhi: The Supreme Court will be left with just one woman judge after the retirement of Justice Indu Malhotra, who will demit office on 13 March.
Justice Malhotra was the first woman lawyer to be elevated as a Supreme Court judge in April 2018, more than three months after her name was sent to the Centre with that of Justice K.M. Joseph, who was then the chief justice of the Uttarakhand High Court. She was the second woman lawyer in the apex court to be designated as a senior advocate in 2007.
7th woman judge in SC’s history
Justice Malhotra’s appointment as a judge of the top court had sparked a controversy because the Centre had cleared her name, while not taking a decision on Justice Joseph’s elevation, which finally came through in August 2018. She was the seventh woman judge in the history of the top court.
Justice Malhotra will be remembered as a compassionate judge, one who strictly followed the principles of law and never hesitated in speaking her mind through her judgments.
She was the only woman judge on the five-judge Constitution Bench that struck down decades-old practice in Sabarimala temple that disallowed entry to women of menstrual age into the sanctum sanctorum. However, the judge dissented from the majority opinion, cautioning against courts’ interference in matters involving faith.
In her separate but concurring opinion in the Section 377 verdict, Justice Malhotra had said history owed an apology to the LGBT community and their families for the delay in providing redressal for the “ignominy” and “ostracism” they have faced through the centuries.
With Justice Malhotra’s retirement, Justice Indira Banerjee is the lone woman judge in the SC now. Justice Banerjee was appointed as an SC judge in August 2018 and with her elevation, the Supreme Court, for the first time, had three women judges.
Justice Malhotra’s retirement will also bring down the working strength of the SC from 30 to 29, leaving the top court with five vacancies.
As she retires, here’s a look at the potential candidates among women judges who could make it to the Supreme Court in the coming months.
Justice Hima Kohli
The first woman to hold the chief justice’s office in Telangana High Court, after it was separated from the combined high court of Andhra Pradesh and Telangana on 1 January 2019, Justice Hima Kohli had served as a judge of the Delhi High Court for 14 years before she moved out to head a high court.
She was appointed as an additional judge in the Delhi High Court on 29 May 2006, and her appointment was made permanent on 29 August 2007.
Across 26 high courts, there are only 82 women judges out of 1,079 judges. Madras tops the list with 13, followed by Punjab and Haryana High Court that has 11 women judges. Delhi and Bombay HCs have eight women judges each, while there is one each in Gauhati, Himachal Pradesh, Jammu and Kashmir, Jharkhand, Rajasthan and Sikkim.
Justice Kohli is the only woman chief justice in the country at present, given that she is the senior-most woman judge in terms of experience. She is due to retire in September this year.
Sources in the Supreme Court confirmed to ThePrint that Justice Kohli is a strong contender for the post of a Supreme Court judge. If she is appointed as the SC judge, she would have a tenure till September 2024.
Also read: Only 2 woman judges in SC and 82 of 1,079 judges in HCs — judiciary has a gender problem
Justice B.V. Nagarathna
A senior judge from Karnataka, Justice B.V. Nagarathna’s name has been discussed by the Supreme Court collegium in the past, but no final decision was taken with regard to her elevation.
If elevated, Justice Nagarathna, who was appointed judge of the Karnataka High Court on 2 February 2008, could succeed Justice Surya Kant as the CJI in February 2027, and occupy the post until 29 October 2027.
In that case, she will become the first woman Chief Justice of India (CJI).
Justice Nagarathna’s father, Justice E.S. Venkataramiah, had been the CJI for a few months in 1989.
However, the main factor working against her elevation to the SC is that the Supreme Court already has three judges from the Karnataka High Court — the parent HC of Justice Nagarathna. None of the three are slated to retire before January 2023, while Justice Nagarathna will demit office in October 2024.
A source in the Supreme Court said there are no written rules for the appointment of a judge to the top court, and that seniority and regional representation are usually the major criteria.
But Justice Nagarathna’s selection should be ideally under the women’s category, the source added.
Justice Bela M. Trivedi
A senior judge of the Gujarat High Court, Justice Bela M. Trivedi is also under consideration for SC, given her experience as a judge of the subordinate judiciary.
Justice Trivedi, who is at present number five in Gujarat HC, was sworn-in as an HC judge in February 2011. Prior to this, she had served as a district judge for more than a decade and was also deputed as the law secretary in Gujarat government then led by current Prime Minister Narendra Modi.
Although Justice Trivedi took oath as a Gujarat HC judge, she was transferred to the Rajasthan HC on 27 June 2011 due to her perceived proximity to the then government in the state.
However, she was transferred back to the Gujarat HC in February 2016.
The source quoted above told ThePrint that her experience as a trial court judge is a fact that could favour her in the elevation process. “After Justice R Banumathi’s retirement last year, there is no judge in the top court at present who has been a judge in both the subordinate court as well as the HC,” he said.
(Edited by Neha Mahajan)
Also read: SC collegium likely to write to Centre for inputs to decide on gay lawyer’s elevation as judge
Amongst the Women Judges of the Supreme Court Mrs.Justice Indu Malhotra spent the shortest time on the Bench. But, her name is immortalized in the legal history of India by her poignant dissenting judgment in the Sabarimala case. In my view, she ranks with Justice HR Khanna, who dissented for fundamental rights in the infamous Shivkant Shukla case during the infamous Emergency. I hope that the government will use her services for worthy causes.
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