This article is written by Mohammad Sahil Khan of Dr. Ram Manohar Lohiya, National Law University, Lucknow. The article talks about the first woman judge of the Supreme Court of India. Her early life, career progression, achievements and some of the landmark judgements delivered by her are also reflected upon. The article also discusses certain issues associated with the judicial setup and how to tackle them.

This article has been published by Sneha Mahawar.

Introduction

Judiciary in India is essentially a patriarchal setup. It can be deduced from the fact that all 26 High Courts in the country are headed by male Chief Justices. It is a troubling situation because the judiciary has delivered various landmark verdicts to ensure gender equality, but such inadequate representation of women in the higher judiciary is indeed troubling. No woman has ever held the office of Chief Justice of India since independence, and it is unlikely to happen in the near future. However, Justice Fathima Beevi fought against all the odds and became the first woman judge of the Supreme Court after 40 years of the establishment of the Constitution of India. 

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Early life of the first woman judge of the Supreme Court

Fathima Beevi was born on 30th April 1927 at Pathanamthitta in the erstwhile Travancore state, which is presently known as Kerala. She was the eldest of her eight siblings. Her father was a government servant. He encouraged her academically, and Fathima was herself academically very driven. She completed her schooling at Town School and Catholicate High school in 1943. Further, she attained a B.Sc. degree from the University College of Thiruvananthapuram, and later on, she did her law graduation from Government Law College, Thiruvananthapuram. 

After completing her schooling, Fathima moved to a new city at the tender age of 16 years during the pre-independence era. This speaks volumes of her zeal to achieve greatness. Fathima’s father, Annaveetil Meera Sahib, played a major role in shaping her career. Fathima wanted to pursue an M.Sc degree after completing her B.Sc degree, but her father dissuaded her and urged her to study law as he contemplated that by completing an M.Sc, she would become a professor and he wanted her to do something big. Fathima’s father was highly inspired by Anna Chandy, who was the first woman judicial officer working in the state of Travancore. Seeking inspiration from her, he pushed his daughter to flourish in the judicial setup. Not only in the higher judiciary but also in her law school, Fathima Beevi witnessed a patriarchal setup as she was one of the only five girls in her batch. She completed her law degree in 1950 and appeared for the Bar Council of India examination and achieved the rare feat of being the first woman to top the exam. She was rewarded with a gold medal from the Bar Council. 

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Career of the first woman judge of the Supreme Court

Judicial career

On completion of her law degree, Fathima Beevi joined the lower judiciary as an advocate in 1950 and worked diligently for eight years. In 1958, she was inducted as a munsiff in the Kerala Subordinate Judicial Services. From thereon, Fathima Beevi never looked back and achieved new echelons as the years passed by. She made remarkable progress in her career, from Subordinate Judge in the Kerala Subordinate Judicial Services (1968-72) to serving as the Chief Judicial Magistrate from 1972-74. In 1980, she became a judicial member of the Income Tax Appellate Tribunal, where she served for a period of three years, till 1983. 

Furthermore, her career trajectory took off to even greater heights and she became a judge of the Kerala High Court. This was a remarkable achievement and an exponential career growth because till then, there were hardly any females in the higher judiciary, and by becoming a judge of the high court, she also became the first Muslim woman to be appointed to the higher judiciary. One would assume that this would be the pinnacle point for Fathima Beevi, but she had some other plans and just six months prior to her retirement, she was appointed as the first woman judge of the Supreme Court. Not only in India, but she also became the first woman judge of a Supreme Court in Asia. The magnitude of this achievement cannot be measured on any scale because it took almost 40 years for a woman to become a judge of the Supreme Court. It was a historic feat, and Fathima Beevi rightly said, “I opened a closed door.” This statement is true in every essence because the doors of the higher judiciary were almost kept shut for women, and by opening the door, Fathima Beevi instilled the belief in the women that they too could get into the higher judiciary. Fathima Beevi was very honest in her work. She was always well versed with the cases that she was going to hear and was always courteous in her approach. 

Governor

Fathima Beevi retired from the post of the Supreme Court judge in 1992. Five years later, she found herself in a new role as the Governor of Tamil Nadu on the recommendation of M. Karunanidhi, the Chief of Dravida Munnetra Kazhagam. On her appointment, Shankar Dayal Sharma, the then President of India, appreciated her contribution to the judicial setup and stated that her insights and valuable experience would prove to be a great asset. The humility of Fathima Beevi was one of the most attractive traits of her personality. She did not live the extravagant life of a governor, but rather lived like a hermit in the Raj Bhavan. From being a retired judge of the Supreme Court to becoming the Governor of Tamil Nadu was a giant leap, and the journey was not as smooth as she would have expected. The career of Fathima Beevi as a governor was marked by some major controversies. Finally, she completed her career as a governor after vacating her office in 2001, after serving for a tenure of four years.

Other roles

Apart from serving the majority of her career in the judiciary and as a governor, she also held several other posts. During her tenure as the Governor of Tamil Nadu, she also served as the Chancellor of Tamil Nadu University. She also became a member of the National Human Rights Commission (NHRC) in 1993. If these roles were not enough, Fathima Beevi was appointed as the Chairman of the Kerala Commission for Backward Classes in 1993. 

Major judgments of Fathima Beevi’s career

In her long and illustrious career, Fathima Beevi had presided over various case hearings and has been very profound in her decision-making. Here are some of the landmark cases that were judged by Fathima Beevi:

Assam Sillimanite Ltd. v. Union of India, (1992)

In this case, the Bench had to adjudicate on the matter of whether a state enactment was constitutionally valid or not. Justice Fathima Beevi observed that the Court has the power to scrutinise the validity of any state enactment, even if it means implementing directives mentioned in Article 39 of the Constitution. 

Scheduled Caste and Weaker Section Welfare Assn. v. the State of Karnataka, (1991)

The case was pertaining to limiting statutory power. The case was important as it talked about the welfare of the public at large to protect them against the arbitrary power exercised by the State or its officers. Justice Fathima Beevi held that citizens must be protected from the excessive power vested by State authorities against them, she further stated the rule of natural justice must be used while checking the exercise of the power. 

Ramesh Hirachand Kundanmal v. Municipal Corporation of Greater Bombay, (1992)

In this case, Justice Fathima Beevi made an important observation regarding the ‘necessary party’ under Order 1 Rule 10(2), Civil Procedure Code. Justice Fathima made the distinction between ‘necessary party’ and ‘necessary witness’. According to Justice Beevi, if a person has relevant evidence regarding the questions involved, then he would be a necessary witness. The prerequisite for a person to be a ‘necessary party’ is that the individual should be bound by the result of the action and the question to be settled. The requirement of the individual to be bound by the result and that the questions in action cannot be settled unless he or she is the party defines what constitutes a ‘necessary party’. 

Mool Chand v. Jagdish Singh, (1993)

This case discusses the possibility of overturning a judgement given by the High Court. The observation made in the judgement was that if there were two views on the basis of the evidence presented and if the high court adopted the view of acquitting the accused, the Supreme Court would be rather slow to interfere with the ruling of the high court. The only scenario where the judgement of a high court can be overturned is when the high court has committed a grave error in the appreciation of the evidence and has misdirected himself by ignoring legal principles before coming to the conclusion. If the procedure followed by the high court is not in accordance with the laws established, such decisions would be characterised as perverse or illegal, and then the Supreme Court of India can interfere with the judgement by exercising its power under Article 136 of the Constitution of India. However; if the judgement of the high court is supported by cogent reasons, then the ruling order will be sustained. 

Rattan Chand Hira Chand v. Askar Nawaz, (1991)

In this case, the validity of a contract under the purview of Section 23 of the Indian Contract Act, 1872 was in question. Justice Fathima Beevi, in her observation, held that every agreement whose consideration is unlawful would be void. The consideration of an agreement is unlawful if it is opposed to public policy. Anything that is done against public policy or public law would be illegal inasmuch as the interest of the public would suffer in case a contract against public policy is permitted to stand. She also held that public policy is a principle of judicial interpretation based on the current requirements of the community and it has to be changed over the passage of time in order to prevent it from being redundant. 

Major decisions in Fathima Beevi’s career as a governor

After her retirement from the judiciary, Fathima Beevi experienced a new challenge as the Governor of Tamil Nadu. Her journey was not as smooth as the one she experienced in the judiciary. Perhaps her journey as a governor was marked by tumultuous times. She made a few bold decisions, but a few controversies also arose because of her decision-making.

  • As the Governor of Tamil Nadu, she rejected the mercy petition filed by the four condemned prisoners in Rajiv Gandhi’s assassination case. The mercy petitions were filed by the prisoners where they pleaded with the governor to exercise her power to grant pardon under Article 161 of the Constitution. 
  • Fathima Beevi appointed Jayalalitha as the Chief Minister of the state of Tamil Nadu when she was not allowed to contest elections. This erupted a massive controversy, and subsequently, Fathima Beevi resigned from the post of Governor in 2001.

Reasons for inadequate representation of women in higher judiciary

Women are meagerly represented in the higher judiciary and it is not a new phenomenon; it’s a spectacle that has been witnessed ever since the formation of the Indian Constitution. In high courts, the percentage of women is 11.5%, while in the Apex Court, there are 4 women judges out of 33 sitting judges in the office. If we ignore the number of female judges and look only at the number of female advocates, the figures are no different. There are only about 15% of women advocates in India out of 1.7 million registered advocates. There are various factors behind the deep-rooted patriarchal setup in the judiciary.

Patriarchal society

The underrepresentation of women judges in the higher judiciary is a testament to the patriarchy in our society which has crept into the judicial structure. Women often have to encounter hostile environments at their workplaces. The members of the bar and bench do not treat female advocates or judges with the respect that they deserve. There have been various instances of harassment of female lawyers. Their voices are often silenced and their opinions are not well contemplated. The Chief Justice of India, N.V. Ramana, stated that “the primary reason is deeply ingrained patriarchy in our society.” 

Opaqueness in the collegium system functioning

The numbers of women judges are significantly higher in the lower judiciary in comparison to the higher judiciary because there is an entrance examination for the purpose of recruitment. According to the 2020 Economic and Political Weekly report, in 17 states between 2007 and 2017, 36.45% of the magistrates and judges were women. This clearly proves that the collegium system designed for the appointment of judges is opaque and reflects a gender bias in their choices of appointment. Recently, the collegium of the Supreme Court recommended 192 candidates for the post of judge in the high court, of which 37 were women, and out of those 37 women candidates, only 17 have been appointed. 

No women’s reservation

There are state reservations for women in the lower judiciary, but the same is missing in the higher judiciary. This leads to an inadequate representation of women in the higher judiciary. Andhra Pradesh, Assam, Telangana, Odisha, and Rajasthan are the states that provide women’s reservations in the lower judicial structure, and as a result, these states have 40-50% of women judicial officers. Fathima Beevi unequivocally expressed her views, stating that there is no doubt that women are underrepresented in the higher judiciary and that owes to the patriarchal setup. Fathima Beevi gave her line of reasoning stating that the women took to the law field a bit late as well, but she insists that even though there are many women at the bar and on the bench, their participation is still meagre. In order to solve the issue, Fathima Beevi propagates in favour of having a women’s reservation in the judiciary so that they are adequately represented and there is no discrimination on the basis of gender. 

Familial responsibilities

The process of growing through the ranks in the judiciary is a long process. In order to ascend from one office to a higher office, it takes a lot of time and it disrupts the evolution of women judges’ careers. Familial responsibilities come along with their career and many judges have to quit their progress to endure the responsibilities of their families. 

Lack of serious attempt

No attempts or hardly any attempts have been made to ensure gender parity in the judiciary. Even after 70 years of independence, out of 245 appointed judges in the higher judiciary, only 3.3% of judges have been women. It is perturbing that no attempts to introduce reservations for women or make the collegium system transparent. There is a need to have legislation in place which would reserve a few women judges’ seats in the higher judiciary. The situation is not going to change unless and until a conscious effort is put into elevating women in the bar and on the bench. 

Judicial infrastructure

Judicial infrastructure also plays a major role in the inadequate representation of women as the small courtrooms, lack of facilities and absence of restrooms are some of the major concerns for women. Lack of judicial infrastructure and familial responsibilities add up to the misery of women as they experience problems in taking care of their children in their professional environment. The absence of child-bearing facilities is one of the major contributing factors to women opting out of the judiciary.

Scarcity of women in litigation

It is interesting to note that the ratio of males to females studying in law schools is almost similar, yet when we look at litigation, it presents a different story altogether, with only 15% of advocates practising litigation being women. With a reduced number of female advocates opting for litigation, the pool for selecting judges becomes extremely limited and, as a result, there is a scarcity of women judges in the higher judiciary. The question that immediately arises is why is there such a small pool of female advocates practising litigation? The answer to this question is a combination of various factors, such as workplace harassment of women’s advocates, lack of respect, and lack of infrastructure. 

Senior advocate Indira Jaising wrote an open letter to the Chief Justice of India in which she stated that during her years at the bar, “there have been multiple incidents where sexist remarks being made by lawyers go unnoticed by the bench”. Indira Jaising also said that she frequently experienced various sexual harrassment in the corridors of the Supreme Court. There were no actions taken against such behaviour, and as a result, such instances happened quite frequently. Apart from this, there is a dearth of restrooms and other essential facilities in the court for female advocates. As a result, many female lawyers opt to practice in law firms where there are strict regulations against workplace harassment and all the essential amenities are provided to them.

Need for women judges

Recently, the Chief Justice of India openly expressed the need for women in the higher judiciary and said he supports 50% representation for women in the judiciary. The patriarchy indeed needs to go away, and the appointment of various female judges would entail great benefits. 

  1. Across various industries and sectors, it has been observed that if at a workplace there is an inadequate representation of females, they are suppressed and the workplace environment becomes toxic for females. Therefore, it has become important to have more female judges in the judiciary to balance out the gender power imbalance and prevent any gender discrimination.
  2. At present times, it has been witnessed that most clients do not prefer female advocates to fight their cases because of a gender bias in the public against the judiciary. Many women do not approach the court in order to seek justice because they do not see many female advocates in the courtroom. As a result, they are not confident that they will get justice. If there were enough female advocates and judges practising in the courts, more women would be willing to seek justice and would look to enforce their rights. 
  3. The inclusion of female judges in the judiciary would increase diversity and it would lead to a diverse set of opinions, which is instrumental in interpreting various facets of the decision-making process. 
  4. The inclusion of women judges will enhance judicial reasoning as it would allow making decisions on the basis of varied social experiences and contexts. 
  5. Women judges have been the torchbearers of some legislative changes. For instance, Justice Leila Seth, a member of the 15th Law Commission of India, spearheaded the amendments in the Hindu Succession Act, 1956 which allowed daughters to secure inheritance rights over ancestral property. She was also a member of the three-member Justice Verma committee, set up in the wake of the 2012 Delhi gang-rape case. The committee recommended strict punishment for sexual offences and also called for speedy trials. 

Way forward

There is no doubt that women judges are needed in the higher judiciary and some positive steps have to be taken in this regard. It’s not just about giving women judges representation in the judiciary; it’s also about providing them with the respect that they deserve. If a woman judge is appointed, her opinions should be considered, the workplace environment should be amicable, and better facilities need to be provided. The following steps can be taken:

  1. There needs to be a complete overhaul in terms of gender sensitisation by bringing about behavioural, institutional, and social changes. All the judges should act in a gender-neutral way by keeping their gender biases aside. A legal education regarding gender sensitization needs to be imparted from a very low level so that all the judges and advocates are shaped to not think in a gender-biased way.
  2. The existing patriarchal mindset needs to go away, and more worthy female judges should be appointed or recommended by the collegium system. Recently, out of 37 recommended women judges by the Supreme Court collegium, only 17 were appointed by the high courts. 
  3. The Collegium system needs to be made more transparent so that deserving women judges get their chances. Because of the opaqueness of the collegium system, often bias is reflected in the appointment of judges.
  4. A reservation should be provided to female judges in the higher judiciary to ensure the active participation of female judges in the functioning of the judiciary.

Honours and awards received by Fathima Beevi

In her momentous career, Fathima Beevi received various accolades and emerged as the torchbearer of women judges in the higher judiciary. Apart from creating an impact in the judiciary, here are certain awards that she received in her illustrious career:

  1. Fathima Beevi received the D Litt and Mahila Shiromani awards in 1990.
  2. In the year 2015, Fathima Beevi received the United States-India Business Council Lifetime Achievement Award.
  3. Fathima Beevi was conferred with the Bharat Jyoti Award for her exceptional contributions to society throughout her career. 

Controversies 

Fathima Beevi had an immaculate career with no controversies whatsoever in her legal career, but her image got tainted a bit when she was assuming the office of the Governor of Tamil Nadu. The controversy arose when she appointed Jayalalitha as the Chief Minister of Tamil Nadu. Fathima Beevi resigned from the post of the governor after the arrest of Karunanidhi, who had rooted for her appointment to the office. The reason behind the controversy was that Jayalalitha’s party achieved a simple majority by winning 131 out of the 234 seats in the 2001 State Assembly elections, and Fathima Beevi administered the oath to Jayalalitha as the Chief Minister of Tamil Nadu, despite the fact that Jayalalitha could not contest the election (Jayalalitha was convicted for two years in association with a corruption case against her) and would not be able to get elected to the Assembly within six months of her appointment as per the norms of the Constitution. A Public Interest Litigation (PIL) was filed to question the validity of the appointment of Jayalalitha as the Chief Minister of Tamil Nadu. The Union Cabinet was absolutely furious with Fathima Beevi for not discharging her duties in the right spirit. Subsequently, they decided to recommend to the President to discharge her from the office of Governor. Fathima Beevi resigned from the post of Governor. 

Fathima Beevi has maintained her stance that the appointment of Jayalalitha as the Chief Minister of Tamil Nadu was her own decision and she took it after deliberating on various factors such as whether the AIADMK (the party which Jayalalitha represented) obtained a majority, making it the mandate of the public. Fathima Beevi stated that her decision-making was backed by her knowledge, belief, and conviction about the constitutional provisions of that time. In response to the Supreme Court’s observation that “Constitution is supreme and not people’s will”, she responded by saying that the Apex Court has interpreted the Constitution and proclaimed it to be the law of land and everyone is bound by the Constitution and as a result; they should consider such matters. 

Conclusion

Fathima Beevi has played many roles in her life, from starting as an advocate to becoming the first woman judge of the Supreme Court, to taking up a role in the National Human Rights Commission, to assuming the office of the governor, but the most important role that Fathima Beevi played was paving the way for female judges and advocates to pursue their ambition. She inspired an entire lot of female advocates and judges to move up their ranks to achieve something extraordinary. Before Fathima Beevi, no woman held the office of judge of the Supreme Court in 40 years, and after her appointment, we have witnessed 10 female judges in the Supreme Court in around 30 years. This in itself is a testament to the legacy that Fathima Beevi has left behind. Even after her retirement, she has always strived for women’s rights in the judiciary and repeatedly called for a reservation for women in the higher judiciary to provide them with a chance of being adequately represented.

Frequently asked questions

  1. Who was the first woman judge of the Supreme Court?

Justice Fathima Beevi became the first woman judge of the Supreme Court in 1989. She also became the first woman judge of the Supreme Court of a nation in Asia. 

  1. Who was the first woman to top the Bar Council of India exam?

Fathima Beevi became the first woman to top the Bar Council of India exam in 1950.

  1. When did Fathima Beevi assume the role of the Governor?

Fathima Beevi assumed the role of the Governor of Tamil Nadu in 1997. She was also a member of NHRC in 1993.

  1. When did Fathima Beevi resign from the post of the governor?

Fathima Beevi resigned from the post of the governor after a controversy embroiled because of her appointment of Jayalalitha as the Chief Minister of Tamil Nadu in 2001. 

References

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