Law

Justice Akil Kureshi Elevation: Should Token Gender Empowerment Trump Fairness?

Presenting the current impasse in the Collegium as one that could 'cost India its first female CJI' would be a mistake.

Should token gender empowerment trump fairness? The question may not be politically correct, but please read this headline: “Will collegium impasse cost India chance to get woman CJI in 2027?

I am not sure how another reader will interpret this headline but to me it appears to suggest that “there is an impasse (Dictionary definitions: ‘(1) a position or situation from which there is no escape; deadlock. (2) a road or way that has no outlet; cul-de-sac’) in the Collegium (presumably, of the Supreme Court of India) and this creates the possibility that India will be deprived of a woman Chief Justice of India in 2027.

The very first sentence of the news item that follows the headline makes it clear and does not leave any room for doubt as it says, “A stalemate in the Supreme Court collegium over one name may cost the country the opportunity to have its first woman Chief Justice of India (CJI) in 2027.” The same headline can be seen to imply that if the Collegium were to find a way to get over the impasse or to make a decision quickly, then India has a “chance to get woman CJI in 2027”. To put it another way, if the Collegium is not able to, or heavens forbid is not willing to, find a way to get over the impasse or to make a decision quickly, then India will lose this precious opportunity “to get woman CJI in 2027”.

The headline has two sets of issues, one dealing with “chance to get woman CJI”, and the other about the Collegium getting over the impasse.

“Chance to get [a] woman CJI”

What does a “chance to get woman CJI” imply? My guess is that if a woman were to become the Chief Justice of India, it will give India bragging rights to claim how well, or liberally, women are treated in India, and they have equal opportunity to occupy even the highest judicial office in the country. This perhaps will also be cited as an example of women’s empowerment in India.

Of course, we can even add the president and the prime minister to this list – but can we put our hand on our heart and truthfully say that India has indeed empowered its women?

If anyone claims that there has been empowerment of women in India, they just need to be reminded of the fate of reservation for women in the parliament and state assemblies. To refresh their memory, it should be enough to say that bills to this effect have been introduced in parliament four times since the late 1990s but none of them has been passed. Detailing the situation of women at large in the country will take too much space but even a cursory look at any newspaper should disabuse anyone of the notion that women in India are empowered.

Also read: Fresh Appointments to SC Stalled Due to Differences on Elevating Justice Akil Kureshi

And, if some doubts still remain, here is what the Chief Justice of India said on January 11, 2021: “Why are women in this strike? Why are women and elders ‘kept’ in this strike? They should be asked to go home”. As if just to make sure his view was understood clearly, the next day, January 12, 2021, the CJI said, “We want to place on record our appreciation for this stand (about elders, women and children not participating in protests in future).” This was after the court had said to one of the lawyers the previous day, “I want to take a risk. I want you to tell them that the Chief Justice of India wants them (old people and women) to go back. Try (to) persuade them.”

This has, of course, been objected to. Satarupa Chakraborty, a member of the All India Democratic Women’s Association (AIDWA) and a researcher at the Tricontinental: Institute for Social Research, writes:

“The CJI’s statement takes women for granted and endorses infantilisation of labour by women. That he would seek women and elders to be sent back by ‘persuasion’ is condemnable, as his stance portrays either ignorance or a deep sense of prejudice on the role of women in farming.

To participate in the movement is well within the rights of every Indian citizen, which is guaranteed under Article 19 of the Indian constitution. The constitution does not impose restrictions on participating in a protest on the basis of a person’s age or gender. The Honourable CJI also has no right to do so” (emphasis added).

That is why I believe that even if India does “get [a] woman CJI in 2027”, it will be a case of “token gender empowerment” at best.

Fairness

What has fairness to do with the Collegium’s impasse and “get(ing) [a] woman CJI”? Plenty, it turns out, if one reads the complete story that follows the headline mentioned above. Reading the complete story reveals several important participants, the main ones being Justice Akil A. Kureshi, currently chief justice of the Tripura high court, and Justice B.V. Nagarathna from the Karnataka high court. These are the two main characters in play as Justice Nagarathna, “if elevated now, could become India’s first woman CJI in 2027”. Part of the supporting, or enabling, ensemble are the judges of the Supreme Court, the Collegium and shadowy characters inhabiting the political, social and media spaces.

The focal person in this saga is Justice Kureshi. The saga is not new but has been going on and on. It has been reported earlier, for example, here and here.

The current episode in the saga appears to have begun with a Facebook post by former judge of the Supreme Court, Justice Markandey Katju. Some parts of Justice Katju’s post are worth reproducing here:

“Justice Kureshi had been the senior most Judge of the Gujarat High Court, from where he had been transferred to Bombay High Court, and he has an excellent reputation for his integrity and learning (emphasis added).

“However, it seems that because he was a Muslim, and also because when he was a judge of Gujarat High Court he had passed adverse orders against the then Chief Minister of Gujarat Modi and then state cabinet minister Amit Shah (and for this reason had been transferred from Gujarat to Bombay), the Government strongly opposed his appointment as Chief Justice of a big High Court like the MP High Court.”

“Evidently the Supreme Court Collegium succumbed to this pressure, and to its shame recalled its earlier recommendation, and instead recommended his appointment as Chief Justice of Tripura High Court, which is a much smaller High Court, where he was then appointed (emphasis added).

“Unfortunately, that Supreme Court judge (who said he will oppose any recommendation to the Supreme Court unless Justice Kureshi is appointed) is retiring later this year, and I am sure the Government will wait till his retirement, and only then make appointments in the Supreme Court, excluding Justice Kureshi, who will be retired as a High Court Judge in March 2022, and not elevated to the Supreme Court (emphasis added).

“Evidently, Muslims are persona non grata for this Government, as also eminent lawyers who had argued cases against the BJP leaders, like Gopal Subramaniam, former Solicitor General of India, who was not appointed as a Judge of the Supreme Court despite the Supreme Court Collegium’s recommendation.”

It is not easy to dismiss or ignore such observations made publicly by a former judge of the Supreme Court. They must be taken into consideration, though how much credence is given to them is a matter of judgment.

Implications

What does all this have to do with ‘fairness’? Let’s go back to the headline that we started with: “Will collegium impasse cost India chance to get woman CJI in 2027?” As mentioned earlier, one interpretation of the headline is that if the Collegium can resolve the impasse, then India will get a “chance to get woman CJI in 2027”. The report following the headline says, “HT has learnt that if the current impasse continues and the possible elevation of justice Nagarathna is delayed further, her chances of becoming the first woman CJI may get diminished further.”

It is, of course, left to the readers to assess if it will be fair or unfair to elevate Justice Kureshi to the Supreme Court but the question is, “Will it be fair to almost force the Collegium to come to a consensus for the reason that India can get a ‘chance to get woman CJI in 2027’?”

Also read: SC Closes Conspiracy Case Initiated After Sexual Harassment Allegations Against Then CJI Gogoi

Next comes the question of how can the impasse be resolved, and quickly. There are only two ways that the Collegium can come to a consensus: Either all members of the Collegium agree to (a) elevate Justice Kureshi to the Supreme Court, or (b) not to elevate him. If the consensus is to elevate him, then there will be no issue but in case the consensus is NOT to elevate him and this consensus is forced to enable India to get a “chance to get woman CJI in 2027”, then the question whether it is fair to give preference to “token gender empowerment” and deprive someone who “has an excellent reputation for his integrity and learning” of something that anyone in that profession would aspire to, certainly comes up.

Of course, it is not known what all will the Collegium takes into consideration while trying to resolve the impasse but to suggest that India getting a “chance to get woman CJI in 2027” should, or could, be one of the factors to be taken into account seems strange, to say the least.

Jagdeep S. Chhokar is a concerned citizen and an advocate.