NEW DELHI: The Indian judiciary will witness a historic moment in September 2027 when Justice BV Nagarathna takes oath as the 54th Chief Justice of the Supreme Court -- the first woman to ever hold that position. Even if her stint at the helm of affairs will last just over a month, the symbolism would be powerful. Especially because she has already begun to make her presence felt with her rulings less than a quarter into her tenure in the apex court.
Within the first two working days of 2023, as the only woman judge and the youngest one in a five-judge constitution bench, Justice Nagarathna stood out with a lone dissenting ruling. On pleas challenging the Centre’s demonetisation policy, she termed the Centre’s November 8, 2016, notification as “unlawful” and processualy flawed. She ruled that the action of demonetising all currency notes of Rs 500 and Rs 1,000 was “well-intentioned” but vitiated by the above factors.
Elaborating, she ruled that the decision-making process was tainted at the formal level by elements such as “non-exercise of discretion by the central board of the bank (RBI) in rendering its advice”. She said the Reserve Bank of India merely acted at the behest of the Central government and did not render an independent opinion.
A day later, in another ruling, Justice Nagarathna again stood behind the constitutional ethos. This time, she had the happy opportunity to agree with the majority (comprising the same judges who she had dissented from in the demonetisation ruling) on the question of imposition of additional restrictions on the freedom of speech of MPs/MLAs. The bench ruled unanimously that no restrictions other than the ones mentioned under article 19(2) of the Constitution of India can be imposed, but she dissented on the aspect of whether the government, in view of the principle of collective responsibility, can be made vicariously liable for the statement made by a minister that is traceable to affairs of the State or for protecting the government.
In her dissenting view, she said if the minister’s statement also represents the government’s view, then
the state can be held liable “vicariously.” She ruled that, as a natural corollary of the above, if such a statement is not consistent with the government’s view, then only it is attributable to the minister personally.
Penning a separate ruling, Justice Nagarathna expressed strong views on the issue of hate speech. She said hate speech strikes at the foundational values of “equality”, “liberty” and “fraternity” that are embedded in the Preamble of the Constitution. She also reminded public functionaries and other persons of influence and celebrities of their duty to the citizenry at large to be more responsible and restrained in their speech.
Appointed as an SC judge in 2021, the daughter of former Chief Justice of India ES Venkataramiah became the first woman judge to be elevated to the apex court from the Karnataka High Court. She was among the three women judges whose names were cleared by the Supreme Court collegium and who took oath the same day. Her tenure as CJI would only be for a brief period of 36 days but it would definitely end India’s long wait for the first woman CJI.
It would also be historic in another way in which some would find a shattering of glass ceilings, others might find a marker of the very limited genealogical pool from which our higher judiciary draws its personnel: with Nagarathna, India will get its first father-daughter duo to reach the position of CJI, besides being the first father-daughter duo to be the SC judges.
While the latter aspect has justly become a point of critique of late, including from the government, the remarkable fact is that even endowed with the social capital that being part of legal families brings, it will have taken over 75 years for the gender barrier to be broken right at the top. And any form of progress can only be a harbinger of more progress on diverse fronts.
Of course, she may not have had to dig deep for all of her judgements — some were par for the course, while of course being subject to the usual scrutiny on formal points. Authoring a constitution bench ruling in December 15, 2022 she came down heavily on corrupt officials and ruled that the court can infer the demand and acceptance of a bribe or illegal gratification by a public servant on the basis of circumstantial evidence in the absence of direct evidence. She was also a part of the bench that had declared, in March 31, 2022, Tamil Nadu’s reservation for Vanniyars in education and employment within the Most Backward Classes category as “unconstitutional”.
Nagarathna was also a part of the bench that had sought the Centre’s response on pleas challenging the Delhi HC’s split verdict on the issue of criminalisation of marital rape — an issue that has plenty of scope to open up some frontiers of legal thinking. She will also get a chance to offer jurisprudence with some serious responsibility when, along with Justice BR Gavai, she commences hearing pleas challenging the scheme of electoral bonds likely in January.
Nagarathna was born on October 30, 1962, and hails from Engalaguppe Chatra village in Pandavapura taluk in Mandya district, Karnataka. She enrolled as an advocate on October 28, 1987, in Bangalore and practised in the fields pertaining to the Constitution, commerce, insurance and service. On February 18, 2008, she was appointed as an additional judge of the Karnataka HC and became a permanent judge on February 17, 2010 — holding that position for 11 years, the longest stint anyone has had there.
In one of her landmark rulings in the Karnataka HC, while stressing the need to regulate electronic media, she had urged the Centre to set up an autonomous and statutory mechanism to regulate broadcast media. She had said, “While truthful dissemination of information is an essential requirement of any broadcasting channel, sensationalism in the form of ‘Breaking News’, ‘Flash News’ or in any other form must be curbed.”
Interestingly in November 2009, Justice Nagarathna along with two other Karnataka HC judges were locked in the courtroom by a group of protesting lawyers. While braving the situation in a dignified manner, her response later went thus, “We are not angry, but we are sad that the Bar has done this to us. We have to hang our heads in shame.”
As the Karnataka Judicial Academy’s chairperson, she introduced a training module for trial judges about laws on gender, children, and the environment. Additionally, as a member of the High Court’s building committee, she ensured the installation of sanitary pad vending machines near washrooms on the High Court premises for use of women advocates, litigants, and the staff. A streak of reformism, then, has guided her through her judgeship. The coming four and a half years will test her mettle in ways that may prove vital to the unfolding story of India’s higher judiciary.