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judiciary

Breastfeeding – An Inalienable Constitutional Right of a Mother

by Guest Author 08/12/2024

written by Guest Author

By Mahak Shinghal

Case – Husna Banu v. State of Karnataka

Bench – Justice Krishna S. Dixit

In a recent case, the Karnataka High Court on 24 September, 2021 observed that breastfeeding is an inalienable constitutional right of a lactating mother and the right of the infant needs to be assimilated with the mother’s right.

The present case of kidnapping is filed by the genetic mother of the child, Smt. Husna Banu [hereinafter, “genetic mother”] wherein she approached the Court for the custody of her child which landed on the lap of Smt. Anupama Desai [hereinafter, “foster mother”].

The child was born in a maternity home in Bengaluru in May 2020 but was stolen from the cradle by an unscrupulous person. The police traced the child to the foster mother’s home in Koppal town in May this year.

The foster mother sought to retain the child which she took care for a year or so. Another case was filed by the foster mother and her husband wherein they challenged the police notice dated 12.08.2021 whereby they were directed to produce the child before the Child Welfare Committee. Both the cases were clubbed before the Court.

The counsel for the foster mother argued that his client has pampered the child with abundant love and affection for all this time. A child who is well fostered for long cannot be parted away from the foster mother. The Counsel alleged to retain the custody of the child by sighting the episodes from Bhaagavatam in which Devaki, the genetic mother of Lord Krishna, permitted Yashoda, the foster mother, to retain custody of infant Krishna. The foster mother also pointed out that the genetic mother already has two children, however, she has none.

The genetic mother filed a habeas corpus writ petition in the High Court of Karnataka and traced the child with the foster mother. The counsel for the genetic mother contended that the genetic parents of the child have undergone severe agony for a year or so. The counsel also highlighted the difficulties of a lactating mother from whom the sucking infant is kept away.

The Court, after hearing both the parties, observed that the custody should be given to the genetic mother. Justice Krishna S. Dixit observed “breastfeeding needs to be recognized as an inalienable right of lactating mother; similarly, the right of the suckling infant for being breastfed too has to be assimilated with mother’s right; arguably, it is a case of concurrent rights; this important attribute of motherhood is protected under the umbrella of Fundamental Rights guaranteed under Article 21 of the Constitution of India.”

The Court also said that it is unfortunate that the child had to suffer for no fault of his and remained un-breastfed since the genetic mother had no access to him until now.

The argument on behalf of the foster mother that the genetic mother has two children while the foster mother has none, the Court said that “children are not chattel for being apportioned between their genetic mother and a stranger, on the basis of their numerical abundance.”

Later, the Court was told that the foster mother has delivered the custody of the child to the genetic mother, who in turn, agreed that the foster mother may see the child whenever she desires.

Noting this, the Court said that “such kind gestures coming from two women, hailing from two different religious backgrounds, are marked by their rarity, nowadays; thus, this legal battle for the custody of the pretty child is drawn to a close with a happy note, once for all.”

With these observations, the Court directed that there shall be no cause of action against the foster parents concerning the alleged kidnapping of the child and freed the foster mother from all civil and criminal liabilities and disposed of the two writ petitions.

08/12/2024 0 comments 28 views

SC allows Women candidates to appear before the NDA exam

by Guest Author 08/12/2024

written by Guest Author

By Neha Bhupathiraju

Case: Kush Kalra v. Union of India

Bench: Justice Kishan Kaul and Justice Hrishikesh Roy

The Supreme Court removed the bar for women to appear before the NDA exam scheduled on September 5. The Court passed an interim order in Kush Kalra v. Union of India pending before the Court since earlier this year, and pointed out that the admission into the Army would however be subject to the decision in the petition.

This petition was filed on the grounds of violation of fundamental rights protected by Articles 14, 15 and 16 by denying women an opportunity to be eligible for the National Defence Academy. The only ground for the ineligibility is the sex of the applicant without any reasonable justification.

Justices Kishan Kaul and Hrishikesh Roy slammed the Army for its decision to exclude women from the exam, despite the Court’s ruling in Babita Puniya last year, which allowed women to be eligible for Permanent Commission just like their male counterparts. Justice Kaul pointed out “Why are you continuing in this direction? Even after Justice Chandrachud’s judgment expanding the horizons and extending Permanent Commission in the Army to women? This is unfounded now! We are finding it absurd!….Will the Army only act when a judicial order is passed? Not otherwise? We will do that if that is what you want! This has been my impression right from the High Court that till a judgment is passed, the Army doesn’t believe in doing anything voluntarily!’

When ASG Aishwarya Bhati appearing for the Government submitted that it is a policy decision, the Court said “The policy decision is based on gender discrimination. We direct the Respondents to take a constructive view of the matter in view of judgment of this court (Babita Puniya)”. The Court also expressed discontentment for compelling judicial intervention time and again.

Babita Puniya i.e The Permanent Commission Case

In 2008, the Ministry of Defence authorized Permanent Commissions (PCs) for women but only in selective and prospective cases, which was not the case for their male colleagues. In a verdict dated 2010, the Delhi High Court allowed PCs to women on par with men, which was challenged in the Supreme Court. The submissions made by the Government at the Apex Court were based on deeply sexist notions. It argued “…to take into account the inherent dangers involved in serving in the Army, adverse conditions of service which include an absence of privacy in field and insurgency areas, maternity issues and child care.”

Justice Chandrachud noted that, “Underlying the statement that it is a “greater challenge” for women officers to meet the hazards of service “owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families” is a strong stereotype which assumes that domestic obligations rest solely on women. Reliance on the “inherent physiological differences between men and women” rests in a deeply entrenched stereotypical and constitutionally flawed notion that women are the “weaker‟ sex and may not undertake tasks that are too arduous‟ for them. Arguments founded on the physical strengths and weaknesses of men and women and on assumptions about women in the social context of marriage and family do not constitute a constitutionally valid basis for denying equal opportunity to women officers. To deny the grant of PCs to women officers on the ground that this would upset the “peculiar dynamics” in a unit casts an undue burden on women officers which has been claimed as a ground for excluding women. The written note also relies on the “minimal facilities for habitat and hygiene” as a ground for suggesting that women officers in the services must not be deployed in conflict zones. The respondents have placed on record that 30% of the total women officers are in fact deputed to conflict areas”.

While the judgement allowed women to be equally eligible for PCs, financial incentives, pension etc, the reality post the verdict is disappointing. Data revealed that only 45% were commissioned out of eligible 75% – whereas 90% male officers were commissioned. Further, women are subjected to blanket policies unlike their male counterparts. Women, including those above 40, must pass the The SHAPE-1 category demand, passing the Battle Physical Efficiency Test (BPET), and undertaking an AE (Adequately Exercised) tenure for a minimum of two years. When Challenged before the Supreme Court, the Army contended that women are seeking special treatment and it will threaten the nation’s security. ‘This raises pertinent questions — are all men who have PCs but are not currently in SHAPE-1 category undermining the nation’s security? It is worth debating how or to what extent women would undermine national security, considering they are still not allowed to take up combat roles.’

All hope however is not lost. There is a massive shift in the way these institutions perceive women. Women’s entry into the armed forces began in 1992, and it has evolved since. The judiciary appears to be a beacon of hope in this case.

08/12/2024 0 comments 21 views

Marital Rape: A Social and Legal Paradox

by Guest Author 08/12/2024

written by Guest Author

By Vandana Bharti

Despite 75 years of independence, the social status of women in India still stands in shadows. Grievous crimes and alarming rates of pending cases portray the loopholes in the legal machinery of the Indian legal system. One such appalling act is that of Rape – where the dignity and self-respect of a woman is bruised beyond contemplation. When such an act occurs behind four-walls in a matrimonial home, it is known as Marital Rape. Where the spouse engages with his/her better half in a forceful, non-consensual sex it is termed as Marital Rape.

A legally sanctioned contract between a man and a woman forms marriage. In India, the legality of sexual intercourse between a man and a woman gives the husband leverage to consider the consent of his wife perpetual in the course of marriage.

Indian Legislation On The Offence Of Rape:

Section 375 of the Indian Penal Code (IPC) states – A man has committed rape if he had sexual intercourse with a woman against her will, without her consent, with her consent but by putting her in danger or threatening her, with her consent whom she believes that she was lawfully wedded to, with her consent but the consent was given in an unconscious state, and with her consent when she is under 15 years of age. Nowhere does this specify the essential elements and the repercussions of committing marital rape.

As per Indian Penal Code, husband can be convicted on grounds of marital rape only when:

The wife is 15 years of age or below; and is punishable by imprisonment for up to 2 years or fine, or both.
When the wife is below 12 years of age, offence punishable with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine.
Rape of a judicially separated wife, offence punishable with imprisonment up to 2 years and fine.
Rape of wife of above 15 years in age is not punishable.

Precedents In the Law

In the Harvinder Kaur v. Harmandar Singh case (AIR 1984 Delhi 66 ), the Delhi High Court stated that the interference of the Constitution in household matters would destroy the marriage.

The court stated, “In the privacy of the home and the married life neither Article 21 [No person shall be deprived of his life or personal liberty except according to a procedure established by law] nor Article 14 [The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India] have any place.”

In 2019, while introducing the ‘The Women’s Sexual, Reproductive and Menstrual Rights Bill, 2018’ Shashi Tharoor, Member of Parliament in the Lok Sabha, said, “‘Marital rape is not about sex, but about violence; it is not about marriage, but about lack of consent.”

Naval Rahul Shiralkar, Advocate at High Court of Bombay Judicature at Nagpur, said, “Courts have various methods to identify marital rape and have given strict punishments but due to the lack of a law against a crime like that, the judiciary is bound to not admit ‘forceful intercourse by a man upon his wife’ as marital rape.”

Shiralkar said that many of the marital rape cases went unreported in India. He added, “There are at least 5-6 cases reported every year in Nagpur Family Court which are pending litigation.”

Saranya S. Hegde, President of the Mahila Dakshata Samiti, Bangalore, said that husbands often thought that they could do everything with their wives because society and marital laws supported that. “The helpless and dependent suffer in silence.”

Hegde said, “If a woman goes to a [family] court, the judge often favours the husband and asks the wife to adjust.” In her more than 15 years of experience, Hegde said she had seen women committing suicide due to the mental torture they went through because of marital rapes and domestic violence.

Kamlesh Premi, Counsellor at home at the Centre for Social Research, said the court procedures took almost five or seven years. Having been a counsellor for more than 20 years, Premi said that the judiciary system was too lengthy.

First, the woman has to complain to the Crime against Women Cell and get counselled. Then if she wants, she has to file an FIR (First Information Report) under Section 498 (A) (Husband or relative of husband of a woman subjecting her to cruelty) of the IPC, which in itself is quite a lengthy procedure. And at the end, even after an investment of at least five years and financial resources, the court would either ask her to adjust or maybe get her a divorce with maintenance. Hence, a lot of women compromise or either go for mutual divorce. “Therefore, there is a lot of under-reportage for marital rapes,” she added.

“It is in rare cases that a wife asks for a divorce or maintenance,” Premi said. “The biggest problem is that the husbands treat wives as private property. They think they own her.”

Dr. Ratna Purwar, a gynaecologist in Lucknow, said women often complain about the presence of vaginal or anal wounds in such severity that could substantiate rape. She added that, when men are asked to abstain from forceful sex with their spouse, the most common answer is, “Why did I marry her then?”

The financial dependency of women becomes a prime reason for all the physical and verbal abuse endurance. It had become normal despite the mental health depletion and trauma. Marriages in India have the concept of ‘implicit consent’ to sex and women sadly or happily comply and do not report it.

In the Anuja Kapur vs Union of India Through Secretary case of 2019 (W.P. (C) – 258/2017) , a PIL was filed asking the Delhi High Court to make guidelines and laws on marital rape. The court replied that drafting of the laws was the work of the legislature and not the judiciary. “The court is more concerned with the interpretation of the law rather than the drafting of laws.”

In the Nimeshbhai Bharat Bhai Desai vs. State of Gujrat case of 2018 (2018 SCC OnLine Guj 732), the Gujarat High Court admitted that marital rape was not just a concept and the notion of ‘implied consent’ in marriage should be dropped. The law must protect bodily autonomy of every woman (married or unmarried).

However, in Independent Thought vs Union of India on October 11, 2017, the Supreme Court stated that sexual intercourse with a girl, below 18 years of age, was rape regardless of her marital status.

Supreme Court of India, in the case of Independent Thought v. Union of India (2017) 10 SCC 800, read down Exception 2 to Section 375, IPC as being violative of Article 14 and 21 of Indian Constitution.

In 2017, the Daily reported a 2014 study by International Centre for Research on Women and United Nations Population Fund on 9,500 respondents in seven states of India. The report concluded that 17% of women received spousal violence while 31% (one in three) men admitted to committing sexual violence against their wives.

In 2016, Maneka Gandhi, then minister for child and women development, said that the ‘concept of marital rape’ that was understood internationally could not be applied to India considering the levels of illiteracy and poverty.

In 2016, the U.N. Committee on Elimination of Discrimination Against Women recommended that marital rape be criminalized in India. After that recommendation, a question was raised in the upper house of Parliament asking what action had been taken. Haribhai Parathibhai Chaudhary, then minister of state for home, replied, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament.” This response was repeated literally by Minister Gandhi in the Parliament.

In the year 2015, the RIT Foundation filed a Public Interest Litigation in the Delhi High Court challenging the exemption of marital rape in Section 375 of the IPC. The challenge is on the basis of Article 14, Article 15 (a fundamental right prohibits discrimination by the state against any citizen on grounds ‘only’ of religion, caste, race, sex, and place of birth), Article 19 (freedom of speech which is the right to express one’s opinion freely without any fear through oral/ written/ electronic/ broadcasting/ press), and Article 21 of the Indian constitution.

Justice Verma Committee report (2013) recommended the discarding of the exception of marital rape. Providentially, in November 2017 a division bench of the

The Law Commission of India in its 172nd Report considered the issue of marital rape, but chose to ignore the voices that demanded the deletion of Exception 2 to s. 375 IPC on the ground that “it may lead to excessive interference with marital relationship” and may destroy the institution of marriage.

In the 42^nd report by the Law Commission, it was proposed that criminal liability be attached to the intercourse of a spouse with his/her minor husband/wife. But the committee banished the recommendation stating that the sexual intercourse between a man and a woman can never impose criminal liability on the husband as sex is the parcel in a marriage.

The Supreme Court, while deciding the issue of marital rape of girls below the age of 18 years, made certain observations and comments that are equally applicable and relevant to married women over 18 years of age.

One of the foremost issues is that of the right to bodily integrity and reproductive rights. While referring to various precedents, the Court found that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as under Article 21 of the Constitution. This right, in effect, would include a woman’s right to refuse participation in sexual activity.

The Supreme Court also noted views expressed by the Justice (Retd.) JS Verma Committee, where reference was made to a decision of the European Commission of Human Rights which concluded that a rapist remains a “rapist regardless of his relationship with the victim”.

According to the 2015-16 National Family Health Survey (NFHS-4), 31% of married women have experienced violence – physical or sexual. The NFHS reported that about 4% of women were forced to have sexual intercourse when they did not want to, 2.1% to perform sexual acts they did not want to, and 3% were threatened to perform sexual acts they did not want to.

In 2015, two separate pleas were submitted to the Supreme Court asking for the law to be amended by deleting the marital rape exception. In the first, the petitioner, a 28-year-old, had already filed charges against her husband for domestic violence (a civil, not criminal offense) as well as “cruelty.” She used her maiden name, Reema Gaur, to shield her identity.

She wanted to bring him to justice for repeatedly raping her. “The law as it stands today amounts to a state-sanctioned license granted to the husband to violate the sexual autonomy of his own lawfully wedded wife,” the plea stated.

Appearing on TV, heavily veiled, wearing spectacles that magnified her eyes, Gaur talked about her marriage. “Every night post the wedding was a nightmare for me. … He would never even ask my permission,” she said. “He used to beat me up, insert artificial [objects] in me. At some point I was in such a condition I was not even able to walk,” she said, her voice breaking with tears. On the night she decided to leave, she said, “He hit me 18 times on my head with a box and a torchlight. And then he inserted the torchlight in my vagina.“

Bleeding and in a semiconscious state, she called her mother for rescue. The bleeding lasted for two months. In the year she was married, when Gaur tried to talk to her in-laws and her parents, “The only thing they told me is, ‘Try to adjust.’ “

In 2014, Akash Gupta of the Rice Institute, a non-profit organisation reported, that the number of spousal violence received by the wives was 40 times more than that received by non-intimate partners.

Deepika Narayan Bharadwaj, a film maker and activist believe the state does not have the potency to support women if they are to seek divorce on grounds of marital rape. “It’s naive to say women have complete right of consent and rights over their body, when the truth is they’re dependent on their husbands for everything, financially, emotionally,” says Bhardwaj.

Trisha Shetty, founder of She Says, a website for information and action on sexual crimes against women argues that protection from Marital Rape is not a western issue that needs solving rather it is a basic human right. People in India are of the opinion that sexual abuse and marital rape only happens to the poor, the fallacy needs to be broken. “That whole assumption that you’re making laws for people who don’t understand is nonsense. Everyone understands the concept of consent, of saying, ‘No.’” says Trisha.

She Says and several NGOs, including Jagori (which in Hindi means “awaken, women!”), have organized workshops and other programs to help women speak out about the sexual abuse and rape. Online, there are additional resources, such as this Marathi language effort to educate about consent via two folk dancers having a musical discussion about the meaning of “yes” and “no.” The government has even set up an emergency hotline, staffed by women, to field calls from women who need police assistance as well as resources and instruction about their rights. In their first year, they received more than 600,000 calls from women, some describing assault and rape within their marriage.

Judicial Stand

In Bhodhisathwa Gautam v Subhra Chakraborthy (1996 AIR 922) it was held that marital rape is violative of Article 21; Right to live with human dignity. Supreme Court held that Rape is a crime against basic human rights and is also violative of victim’s most cherished of the fundamental right. A married woman too has the right to live in human dignity, right to privacy and rights over her own body. Marriage can in no way take away these rights.

In Justice K.S Puttaswamy v Union of India (2017) 10 SCC 1 , it was held that the right to privacy as a fundamental right includes decisional privacy reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations.

Uncovering the history of judicial decisions on infliction of serious injury by the husband on the wife the court in Queen Empress v Haree Mythee, (1891) ILR 18 Cal 49 observed that in case of married women, the law of rape does not apply between a couple after the age of the wife over 15 years of age, even if the wife is over the age of 15, the husband has no right to disdain her physical safety.

In Emperor v Shahu Mehrab (1911) ILR 38 Cal 96 the husband was convicted under Section 304A IPC for causing the death of his child-wife by rash or negligent act of sexual intercourse with her.

In State of Maharashtra v Madhukar Narayan Mardikar, AIR 1991 SC 207, Supreme Court referred to the right to privacy over one’s body. It was decided that a prostitute had the right to refuse sexual intercourse. It is wistful to know that all sexual offences committed by a non-intimate or a stranger have been penalised and all females except wives have been granted their right over their bodies.

In Sree Kumar v Pearly Karun, 1999 (2) ALT Cri 77 High Court observed that because the wife is living under the same roof with that of her husband, with no decree of separation, even if she is subjected to consensual or non-consensual sexual intercourse, the offence under Section 376A of IPC will not be imposed.

The idea of spousal rape is fictious to the Indian Judiciary, despite the mental and physical trauma of the survivor.

International Statistics

Marital Rape has been declared illegal and a criminal offence in 18 American states, 3 Australian states, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia. A U.K. case of R v R changed the law to an extent that the courts ruled that even within a marriage, any non-consensual sexual activity is rape.

What can be done?

To help the victim surf the trauma, shelters can be provided as a temporary safe place to stay and the staff may help in the consideration of options available, legal aid services to offer free of cost legal services and advice, support groups to help the victim voice the upheaval. Articulate support for the enforcement of apt laws and for new legislation to curb sexual violence, education programmes and support initiatives at local, state and national level.

Conclusion:

The incessant exemption of marital rape from the ambit of criminal law succours the idea of wife being the property of the husband exclusively. Changing the laws on sexual offences needs to be tactful especially in a country like India where there is an existence of diverse and conglomerate personal and religious laws that might clash with the new amendments in the statutory criminal law. The immediate need of prohibiting and criminalizing marital rape is just not enough. Sensitization of judiciary and police along with educating the myriad believers of the airy concept of marital rape is required in order to acknowledge that the concept of spousal rape; getting raped by one’s spouse is not trivial, and definitely cannot go unpunished.

08/12/2024 0 comments 27 views

THE SUPREME COURT OF INDIA NEEDS MORE WOMEN JUDGES

by Guest Author 08/12/2024

written by Guest Author

Lokendra Malik, Advocate, Supreme Court of India

The Supreme Court of India has a sanctioned strength of 34 judges including the Chief Justice of India but currently, it has only one woman judge Justice Indira Banerjee. As of now, the Supreme Court has five vacancies of judges and a few more judges will be retired by the end of this year. Surprisingly, in seventy years of existence, only eight women judges have graced the bench of the Supreme Court of India. This is not good news from the gender justice point of view as half of our population is not getting reasonable representation in the apex judicial tribunal of the country. More women judges should be appointed at all levels in the judiciary. Justice Fathima Beevi was the first woman judge of the Supreme Court of India who was appointed in 1989. The second woman judge of the Supreme Court was Justice Sujata V. Manohar who was appointed in 1994. The third woman judge of the Supreme Court, Justice Ruma Pal came in the year 2000. After her retirement, it was Justice Gyan Sudha Mishra who came to the Supreme Court in 2010. In 2011, Justice Ranjana Prakash Desai was appointed to the Supreme Court. Justice Bhanumathi was elevated to the Supreme Court in 2014. Justices Indu Malhotra and Indira Banerjee came to the Supreme Court in 2018. All these judges have made a wonderful contribution to the Indian judicial system by delivering hundreds of judgments.
Many legal scholars, lawyers, and sociologists have rightly expressed their concerns about the invisible representation of women in the higher judiciary particularly the Supreme Court of India. It is widely believed that India needs more women judges in the constitutional courts. But unfortunately, no effective steps seem to have been taken by the judge-makers to remove this gender gap until now. For this lapse, both the government and the judiciary are responsible. Both of them have failed to promote gender equality in the judiciary. Before 1993, it was the Union Executive that had a very powerful say in judicial appointments but it ignored the representation of women on the top bench. In the Supreme Court, the first woman judge was appointed in 1989. After 1993, the Supreme Court collegium is the actual judge-maker in the country. Sadly, even the Supreme Court collegium has also ignored the women in judicial appointments in the Supreme Court and High Courts. The collegium should not miss a great opportunity to bring more women judges in the constitutional courts that could provide them timely chances to lead the Supreme Court of India one day. The male-dominated Supreme Court collegium is expected to have a more liberal and generous approach in terms of making judicial appointments of women in the higher judiciary. Unfortunately, India could not have a woman Chief Justice even after seven decades of the Supreme Court’s establishment. The judge-makers should think about this issue seriously. It all depends on their willpower and commitment to the cause of women’s empowerment in the judicial branch that holds a very significant position in our constitutional scheme.

Some sitting judges of the Supreme Court have also raised their concerns about the inadequate representation of women in the Supreme Court on a few occasions. A few weeks ago, while speaking on the occasion of a farewell ceremony organized by the Supreme Court Young Lawyers Forum on March 13 to honour Justice Indu Malhotra, Supreme Court judge Dr. D. Y. Chandrachud said about this issue: “Justice Malhotra’s retirement means that the Supreme Court now has only one female judge on the bench. As an institution, I find that this is a deeply worrying fact and must promptly receive serious introspection”. Further he went on to say that “as an institution whose decision shape and impact lives of everyday Indian, we must do better. We must ensure the diversity of our country find reflection in making up of our court. Intrinsically having a more diverse judiciary is an end, a goal in itself and worth pursuing in its own sake. Instrumentally, having a more diverse judiciary, ensured diversity of perspectives is fairly considered, instils high degree of public confidence.” Justice Chandrachud’s remarks deserve serious consideration by judge-makers. The Supreme Court collegium should consider it from a larger perspective that could ensure a fair representation of women on the bench of the top court. It will be in the collective interests of the judiciary if the collegium takes care of diversity on the bench which is a must to ensure justice to the people.

Notably, the Supreme Court collegium led by Chief Justice Bobde could not recommend even a single appointment to the Supreme Court due to the lack of consensus among the members of the collegium. The collegium led by him also faced some other issues like geographical and seniority considerations in choosing judges for the top court. This is not the first time that the Supreme Court collegium faced this kind of situation in selecting judges. Even in the past, the collegium has such challenges and made selections by relaxing the seniority norms. There are precedents where judges have been elevated to the top court by ignoring the seniority norms and High Court representations. The judgments of the Supreme Court particularly its 1999 ruling also allow the departure from seniority norms in judicial appointments. There is no hard and fast rule of seniority that prohibits the collegium from elevating junior judges to the Supreme Court. Some brilliant women judges of the High Courts may be considered for the Supreme Court judgeship by relaxing the seniority norms so that they could get an opportunity to lead the Supreme Court in the future. This can be an extraordinary relaxation to ensure gender balance on the bench of the top court. The sky will not fall if the collegium relaxes the seniority constraints to appoint brilliant women lawyers and judges to the top court. In addition to this, some brilliant women legal academics and lawyers may also be considered for the judgeship in the Supreme Court. A few lawyers were directly elevated to the Apex Court during the last few years. The Supreme Court has many brilliant lawyers who can be considered for the judgeship in the top court. A gender balance in the higher judiciary is the need of the hour. The collegium led by the new CJI Ramana may consider all these issues.

Unfortunately, no law professor has ever been appointed as a judge in the Supreme Court despite the availability of constitutional provisions to this effect under Article 124(3)(c) from the category of ‘distinguished jurist’. Has not the time come when the Supreme Court collegium should activate this dormant constitutional provision? India has many brilliant professors who have made a wonderful contribution to the legal system and they truly deserve this honour. A renowned legal academic can be appointed as a judge in the Supreme Court to include the legal academia in the judicial adjudication process? This was the dream of our great founding fathers who were inspired by some foreign jurisdictions that had appointed eminent law professors as judges in their top courts. Professor Felix Frankfurter of Harvard Law School was directly elevated to the U.S. Supreme Court. The Supreme Court collegium has all opportunities to diversify the bench of the apex court to make the judiciary more inclusive. It should not delay this noble work more. Needless to say, the collegium is the real judge-maker in the current constitutional practice and the central government is bound to implement its recommendations. It has all powers to diversify the Indian judiciary. Now after the judgment of the Supreme Court in the case of M/S P.L.R. Projects Ltd. v. Mahanadi Coalfields Ltd., the Central Government cannot delay judicial appointments as the Court has rightly fixed a timeline for the government to clear appointment of judges within a prescribed time. The collegium may consider ensuring gender justice to the women in the country given the national commitment to the cause of women’s empowerment in the judiciary.

The Supreme Court decides many important issues relating to women which can be properly adjudicated only by the women judges. Not only this, but the presence of women judges in the Supreme Court also enhances the faith of the womanhood in the supreme judicial tribunal lays down the law of the land. The new Chief Justice of India N. V. Ramana may convince his colleagues to give more representation to the women in the higher judiciary by adopting a more liberal approach. If possible, the new CJI may also include a woman judge in the decision-making process of the Supreme Court collegium. The Supreme Court of India has always stood for the cause of women’s empowerment. It should encourage the women lawyers and judges to come forward to join the apex court. The top court should have at least 5-6 women judges from different communities and parts of the country. Many brilliant women lawyers and judges are available in the Supreme Court and the High Courts who can make a great contribution if timely opportunities are given to them. Some of them may also become the Chief Justice of India one day. There is a severe shortage of women in the Supreme Court and High Courts also. This is the time when the Supreme Court collegium should give adequate representation to the women in the higher judiciary.

08/12/2024 0 comments 34 views

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Breastfeeding – An Inalienable Constitutional Right of a Mother

SC allows Women candidates to appear before the NDA exam

Marital Rape: A Social and Legal Paradox

THE SUPREME COURT OF INDIA NEEDS MORE WOMEN JUDGES

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