Women's Day Special | Justice BV Nagarathna : A Judge Fearless In Expressing Dissent

On this Women's Day, let us talk about the woman judge who dissented more than three times since her elevation to the Supreme Court. It is none other than Hon'ble Justice BV Nagarathna, who is touted to be India's first woman Chief Justice in 2027. Dissent is common, but what makes it more valuable is the time and occasion where the person “dissents.

The essence of a healthy democracy, or even the last bastion of hope for a struggling democracy, is the independence of its judiciary; and the cornerstone of such independence lies in dissenting opinions and judgments. Justice Rohington Nariman, in his Book 'Discordant Notes', speaks at length about various Indian and foreign jurists and judges who, with their bold spirits, stood stoically at the side of progressive justice and human liberties, as opposed to the majority opinions - which often sacrificed judicial integrity at the altar of state's whims.

Justice B. Venkataramiah Nagarathna was born in Bengaluru on October 30, 1962. She is the daughter of the late Chief Justice of India, Justice E. S. Venkataramiah. She did her schooling at Sophia School in Bengaluru and Bharatiya Vidya Bhavan in New Delhi. She went on to earn a B.A. in history in 1984 from Jesus and Mary College, University of Delhi. She then earned her law degree from the Campus Law Center, Faculty of Law, University of Delhi, in 1987.

Justice Nagarathna was the judge of the Karnataka High Court for eleven years before she was elevated to the Supreme Court in 2021 and is likely to be the 54th Chief Justice of India (First Woman Chief Justice) on September 25th, 2027. This will be a momentous occasion for the country, as she will be the first woman to hold the esteemed position in the Supreme Court of India. She will emulate her father, ES Venkataramiah, who served as the Chief Justice of India (CJI) for approximately six months in 1989.

Since her elevation to the Supreme Court, Justice Nagarathna has passed some landmark judgments and has dissented on numerous occasions.

The Bilkis Bano Case: (Bilkis Yakub Rasool vs. Union of India)

We all know about the tragic case of Bilkis Bano, who was 21 years old and five months pregnant when she was gang-raped while trying to escape the horror of the communal riots that broke out after the Godhra train burning incident in February 2002. Her three-year-old daughter was among the seven family members killed.

Recently, all the convicts in the Bilkis Bano rape case were granted remission and were released, following which a petition was filed challenging the remission policy. In this case, a division bench led by Justice Nagarathna quashed the Gujarat government's decision to grant remission to 11 convicts in the Bilkis Bano case in August 2022.

"A woman deserves respect howsoever high or low she may otherwise be considered in society or to whatever faith she may follow or whatever creed she may belong to".

Justice Nagarathna observed that the Gujarat government was "complicit" and "acted in tandem" with the convicts in misleading the court by suppressing the facts. In the judgment one can easily be convinced how Justice Nagarathna was talking for the court, not the bench, when she observes - "Wherever and whenever the State fails to perform its duties, the Court would step in to ensure that the rule of law prevails over the abuse of the process of law."

With regard to Justice, rule of law and court's responsibility in justice dispensation, it was rightly observed in the judgment:

“Courts have to be mindful of not only the spelling of the word “justice” but also the content of the concept. Courts have to dispense justice and not justice being dispensed with. In fact, the strength and authority of courts in India are because they are involved in dispensing justice. It should be their life aim”

The sole dissent in Demonetization: (Vivek Narayan Sharma vs. Union of India)

On 8 November 2016, the Government of India announced the demonetisation of all ₹500 and ₹1,000 banknotes and announced the issuance of new ₹500 and ₹2,000 banknotes in exchange for the demonetised banknotes.

On November 9th, 2016, the day after the demonetisation announcement, the constitutionality of the scheme and the manner of its application of Demonetization was challenged before the Supreme Court, following which on December 16th, 2016 the Bench ordered a stay on all High Court challenges to the demonetisation scheme and transferred the cases to the Supreme Court.

In the same Order, they referred the challenges to the scheme to a 5-Judge Constitution Bench. On January 2nd, 2023, the Constitution Bench, in a 4:1 split, upheld the Union's 2016 demonetisation scheme. Justice B.V. Nagarathna gave a dissenting opinion.

In her dissenting judgment in the pleas challenging demonetisation, Justice BV Nagarathna said that there was “no independent application of mind” by the Reserve Bank of India in recommending the cancellation of entire Rs.500 and Rs.1000 notes as proposed by the Central Government. "Notification of November 8, 2018 is unlawful," said Justice Nagarathna in her opinion.

"The Parliament which is the fulcrum in our democratic system of governance, must be taken into confidence. This is because it is the representative of the people of the Country. It is the pivot of any democratic country and in it rests the interests of the citizens of the Country. The Parliament enables its citizens to participate in the decision-making process of the government. A Parliament is often referred to as a “nation in miniature”; it is the basis for democracy.”

The dissenting opinion of Justice Nagarathna was significant because it was a sole-dissenting opinion against the four judges who ruled totally contrary to what she said and upheld the demonetization policy of the government.

On the need for meaningful debate, Justice Nagarathna rightly opined that “It is in the above context that it is observed that on a matter as critical as demonetisation, having a bearing on nearly 86% of the total currency in circulation, the same could not have been carried out by way of issuance of an executive notification. A meaningful discussion and debate in the Parliament on the proposed measure, would have lent legitimacy to the exercise.”

Hate speech strikes at the preambular goals of our Constitution: (Kaushal Kishore v. State of UP)

In another important case, Kaushal Kishore v. State of Uttar Pradesh, Justice Nagarthana penned a dissenting view and held that Hate speech strikes at the preambular goals of liberty, equality, and fraternity that are the foundational values embedded in our Constitution. Justice Nagarathna further observed that public functionaries and other persons of influence and celebrities, having regard to their reach and their impact on the public or a certain section, were duty bound to be more responsible and restrained in their speech.

“They are required to understand and measure their words having regard to the likely consequences on public sentiment and behaviour and also be aware of the example they are setting on the fellow citizens to follow.” she added.

The majority verdict ruled that statements made by a minister, even if such statements are 'traceable to any affairs of the State or for protecting the government', cannot be attributed vicariously to the government, essentially ruling that a government cannot be held vicariously liable for statements made by a minister.

On the other hand, Justice Nagarathna in her dissent ruled that a statement made by a minister, if traceable to any affairs of the State or for protecting the government, can be vicariously attributed to the government, as long as the statement represents the larger view of the government. However, she clarified that if such a statement is not consistent with the view of the government, then it will be seen as a stray opinion of the minister.

The Dissenting Judge

By authoring 2 important dissents in the first 2 working days of 2023, Justice BV Nagarathna has already established herself as a Judge who is undeterred by the mounting pressures of 'collective conscience of the public'; a Judge who is not afraid to call out state excesses and launch a scathing attack against hate speech.

Few months ago, she batted for abortion rights, expressing disagreement with the presiding judge of the bench, and gave primacy to the woman's choice. "The pregnant lady is not interested in continuing with the pregnancy. In such a situation whether the child to be born is viable or if the child would be a healthy child are not relevant considerations. What is to be focused upon is, whether, the pregnant lady intends to give birth to a child or not," Justice Nagarathna said.

08th March i.e., women's day, must be celebrated keeping such inspirational women at the helm of our praise. Just as Justice HR Khanna was lauded for his fearless dissent in the infamous ADM Jabalpur judgment, so must Justice Nagarathna, especially at a time when such indomitable courage and independent thought have rarelyy fallen from the Benches of the Hon'ble Supreme Court in recent times.

It becomes even more difficult to exhibit such courage and spirit when every decision, every word authored/spoken by a Judge is subjected to unrelenting, unforgiving scrutiny; where post-retiral benefits have become a potent tool at the hands of the state to perhaps slightly tilt the scales in its favour. Even a bare perusal of Justice Nagarathna's dissent in the Demonetization case would make it manifestly evident that it was based solely on the legislative intent of the RBI Act and the procedure established by law, unlike the majority opinion, which unfortunately did not appreciate the true position of law. Perhaps the said dissenting opinion can be a foundation on which future Indian jurisprudence can flourish.

It is pertinent to recall a recent case, where a Suo Motu writ petition was registered by a Bench consisting of Justices Nagarathna and AG Masih regarding termination of services of 6 female civil judges in Madhya Pradesh. Justices Nagarathna and Masih further expressed concerns about civil liberties of common citizens, and stated that in recent years the machinery of criminal justice is being misused by certain persons for their vested interests and for achieving their oblique motives and agenda. The same Bench, while reserving a judgment on the issue of right of a muslim woman to seek maintenance under Section 125 Cr.P.C. held as under: “If the Parliament had the intention to extinguish such rights of the Muslim woman, it would only be reasonable to expect the Parliament to speak in definite and specific language about such extinguishment. Parliament must have been aware that when the 1986 Act was enacted, a number of orders must have passed in favour of divorced Muslim women under Section 125...Message appears to us to be loud and clear...Both rights, under Section 125 of the Code and Section 3 were conferred on the divorced women. She has the right to choose.”

Today's situation is akin to Charles Dickens' famous line, “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of light, it was the season of darkness, it was the spring of hope, it was the winter of despair”.

In such worst of times, age of foolishness, epoch of incredulity, seasons of darkness, and winters of despair, we often need judges like Justice BV Nagarathna who can offer an equally resistant age of wisdom, epoch of belief, season of light, and spring of hope. The backbone of this country's judiciary, and thus by extension, the edifice of India's principles of constitutionalism, are made up of such judges. This women's day, we can only hope to have many such female judges on the Bench in the future; perhaps it's a pipe dream, but Justice Nagarathna has shown us that sliver of hope which may just make that dream come true.

(Areeb Uddin Ahmed is an advocate practicing at the Allahabad High Court; Musheer Zaidi is an advocate practicing in Delhi)