First woman CJI is need of the hour, writes Olav Albuquerque

India badly needs its first woman Chief Justice of India (CJI) and this post could be filled by Justice B V Nagarathna of the Karnataka high court in 2027, if she is promptly elevated. This dire need raised its head yet again when Chief Justice of India (CJI) Sharad Arvind Bobde asked an alleged rapist-cum-Maharashtra government employee if he would marry his victim, who was a minor when he had repeatedly raped her. Such insensitive remarks in open court thwart the Supreme Court’s own judgments that rape is a diabolical act which cannot be settled by marriage.

In a separate case, CJI Bobde again asked: “When two persons are living as husband-and-wife, however brutal the husband is, can you call sexual intercourse between them ‘rape’? The victim alleged that her rapist promised to marry her after raping her and she was “brutally and sexually abused” after marriage. The CJI reportedly stayed the arrest of both the alleged rapists for four weeks.

The learned CJI ignored that crimes like rape attract severe penalties under the Criminal Law (Amendment) Act, 2013. The Justice J S Verma Committee laid down that the law ought to specify that even a marital relationship could not be a defence against forced sexual intercourse. Citing a judgment of the European Commission of Human Rights, the Verma Committee endorsed the conclusion that “a rapist remains a rapist, regardless of his relationship with the victim.”

Furore over remarks

The CJI’s remarks imply a wife is chattel who must meekly surrender her body to satiate her husband’s lust. This is why firebrand CPM MP Brinda Karat immediately wrote to CJI Bobde demanding he retract his remarks. This comes on the heels of another fiery speech delivered by firebrand Trinamool Congress MP Mohua Moitra disparaging the former CJI Ranjan Gogoi who, she alleged, had exonerated himself of a charge of sexual harassment.

Marriage is based on trust, not lust without love. Leaving that aside, it is true that women are sometimes their own greatest enemies, as is borne out by the three verdicts of Justice Pushpa Ganediwala in the POCSO cases, which cost her confirmation as a high court judge. Even the dissenting verdict of Justice Indu Malhotra that the Supreme Court should not venture into adjudicating whether women of menstrual age should be allowed into the Sabarimala temple or not is disconcerting.

A lawyer who downloaded a mugshot of a woman magistrate and sent her birthday wishes will now face a criminal charge of obscenity and other charges under the Information Technology Act. The woman magistrate has overreacted to what at best may be a misdemeanour but not a criminal offence. Leaving that aside, there is no doubt that some judges do have a patriarchal mindset, evidenced by CJI Bobde’s insensitive remarks.

No matter of compromise

This was reinforced in a 2013 case of Shambhu versus State of Haryana, where the Supreme Court laid down, “rape is not a matter for the parties to compromise and settle”. It is those occupying such high Constitutional posts like CJI Arvind Bobde who deliver a blow to women seeking justice from their tormentors because the message sent to police and other agencies is that it is useless to register FIRs of rape if the rapist promises to marry the survivor. This heinous axiom will deter rape victims from prosecuting their tormentors.

While being insensitive to the rape survivor, the Supreme Court has rightly shown sensitivity to Yatin Oza, only the second lawyer in judicial history to be stripped of his senior’s gown for his blunt criticism of the Gujarat high court registry. His words alleging that the registry had shown partiality towards certain law firms came after the former chairman of the Bar Council of Gujarat, Dipen Dave, had sent Oza a WhatsApp message on May 26, 2020, alleging what Oza had alleged. Oza’s father, like CJI Sharad Bobde, was a senior advocate. While the senior Arvind Bobde was the advocate general of Maharashtra, Oza’s father reportedly was the first to get the senior’s gown in Gujarat.

The point here is when CJIs are imperfect in handling gender-sensitive issues, it is time to scrap the collegium system of appointing judges, as Advocate Mathews Nedumpara had claimed. It is time the collegium records the names of those who oppose the elevation of Justice B V Nagarathna, with Justice Akil Kureshi, to the top court. She stands 46th in the All India seniority list of judges and is senior to Bombay high court chief justice Dipankar Datta, who will retire in 2030 after he is elevated to the apex court. As he surely will be.

Confirmation hearings

Unlike the USA, where the senate grills putative Supreme Court judges on video-recorded testimony on everything from their private lives to their stance on issues like abortion and rape, the Supreme Court collegium in India decides in secrecy who will be appointed the future high court and Supreme Court judges. Until 2016, these deliberations were never recorded, with Justice Jasti Chelameswar alleging trade-offs between some of the collegium judges who wanted their own protégés to be elevated.

In his eloquent dissenting judgment on the NJAC, Justice Chelameswar flayed the collegium system in vogue for the past 26 years as “absolutely opaque and inaccessible both to public and history, barring occasional leaks. There was absolutely no accountability”.

All judges are products of the collegium system, with not much doubt that the government can exert subtle pressure on the CJI to drop an inconvenient name like Gopal Subramaniam from being elevated as a Supreme Court judge as was done in 2014. Only then did Subramaniam write to the then CJI R M Lodha that he had found the then Law Minister had initiated an inquiry against him “with a clear mandate to describe me as unsuitable to be a Supreme Court judge” because he would not toe the government line.

Whether outspoken lawyers like Oza and Subramaniam will concur that CJI Sharad Bobde upholds Constitutional morality over religious bigotry is a moot point. Bobde’s loyalty seems to be towards archaic beliefs. So, whether Nagarathna and Kureshi will be brought to the Supreme Court to ensure “a rapist remains a rapist” remains to be seen.

The writer holds a PhD in law and is a senior journalist-cum-lawyer of the Bombay high court.

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