[EXCLUSIVE] How a junior brother judge did not allow five judgments to be delivered: Supreme Court Justice Indira Banerjee reveals [Part I]

Quality over volume was one of the features of Justice Indira Banerjee's tenure as a Supreme Court judge. Though she seldom spoke during hearings, every now and then, she would ask pointed questions that would leave counsel appearing before her scrambling for answers.

A day after she retired, Justice Banerjee spoke with Bar & Bench's Debayan Roy about her journey in the profession as a first-generation lawyer who opted to study at a nearby law college in Kolkata only because her father, a former IPS officer, did not have the means to afford a hostel education in Delhi.

In Part I of this tell-all interview, Justice Banerjee, who was only the eighth ever woman to be appointed to the Supreme Court, reveals how an apex court judge who was junior to her did not allow five judgments she authored to be delivered in court, and the various struggles that come with being a woman in the profession.

Edited excerpts from the interview follow.

Debayan Roy (DR): After three decades in the legal profession, will you miss the Monday morning rush?

Justice Indira Banerjee (IB):  I don’t know how I will feel tomorrow. Maybe I will miss it. But today, I am enjoying my leisure, my freedom. I have got some lovely books which I have to read. 

DR: Over the course of your career as a judge, how have you seen the Bar evolve? Do you see any differences between today's lawyers and those who appeared before you during the early stages of your career?

IB: This varies from lawyer to lawyer. Those who were well-prepared, they always were. But there were some who were appearing in court without any preparation at all. But otherwise, by and large, the level of assistance from the Bar has been very good.

DR: From the mid 1980s to 2022, what according to you has changed the most for women in the legal profession and what remains constant?

IB: You have women in much greater numbers today in the legal profession. There has been a definite change in the mindset. Once there is a change in the mindset, there is no difference really in a man and a woman. The difficulty which a woman faces in the profession is the time that they have to take out for family commitments.

Let us say a married woman has a child. If you bring a child, you have to give some affection and time. Whether you want to have a child or not is your choice and there is no compulsion. If you do have one, you have to take some time off from the profession. It is usually the woman who makes the greater sacrifice. Although we talk about joint parenting today, it is a mother who plays a far greater role in bringing up children.

Let me give you an example. One of my juniors is practicing in the Calcutta High Court and I consider her exceptional and one of the best juniors. When she was joining the legal profession, she joined a law firm. She got married and she was still working. Then she had a child and when the child was around a year old, she had another child. When the children were around two years old, she got back to the profession. Just then, the elder child got injured.

These breaks, breaks before her marriage, a break when she joined a law firm, a break during her maternity leave, a break when one of them falls ill and gets hospitalized. Every time the momentum was picking up, there was an obstacle. She is doing very well today, but what about the lost years?

In our times, the legal profession was like a service-oriented business. How much work you got would depend on the speed of the service. Now, if there were breaks or gaps, the clients would go away to others. This is one area where a woman falls back.

Look at who comes to court. A few pursue luxury litigation, but apart from them, most are serious and a person who has been denied promotion needs immediate relief. If the lawyer has personal problems, the clients would go elsewhere.

In our times, we used to be told that law is a jealous mistress and once you come into the profession, all that is needed is hard work. You need average intelligence in this profession, but what is really required is hard work, dedication to the client and love for law. If these are there, one will rise in the profession and there is always room at the top.

DR: Do you think that women's representation in the judiciary, especially in the Supreme Court, is mere symbolism? How do we ensure better representation of women across the board?

IB: The fanfare in appointing women judges is not warranted, certainly. When I became a judge, my name was in the headlines as it was the first time the Supreme Court had three women judges. But what benefit did I get as a woman? Nothing.

When judges are appointed to the Supreme Court, there are some factors which are kept in mind. One of which is regional representation; they try to ensure different High Courts are represented. Second is seniority, knowledge of law, competence, and definitely, the reputation which the judge has earned over the years.

As far as the Calcutta High Court is concerned, the last elevation before me was in 2013, when Justice PC Ghose was appointed to the top court. After that, there were no elevations. Justice Ghose retired in May 2017. From May 2017 till August 2018 (when I was appointed), Calcutta was not represented in the Supreme Court. I was the senior-most non-Bombay judge in the country, and fourth in seniority across the country. There were three Bombay judges in the Supreme Court already.

If there have been so few women so far, there is a problem in the mindset. The biggest obstacle to women's equality is the stereotyping of men and women in the mindset of people that if a woman is giving time to her profession, she is neglecting her home.

I have been told by judges abroad about the kind of discrimination judges face there as well. Ruth Bader Ginsburg was asked if she was happy when another woman judge was appointed. She said she will be happy only when all judges in the US Supreme Court are women. She asked why raise eyebrows when a woman judge is appointed, when no one batted an eyelid when all judges in the apex court were men.

Another factor here is the aspect of commuting. I have been unfair to women sometimes, as when women personal assistants (PAs) were deputed to me, I did not take them in. When Justice Ashok Ganguly deputed a woman PA to me, I declined.

There was a selfish reason when I objected to having a woman in my chamber. I myself did not choose to keep a woman PA while in the Calcutta High Court and opted for a male, since I worked till very late at night and if I had a woman PA, I had to ensure her safe travel and also that she was escorted by someone. She also would need to get to her children and family. But with a man, it was only a train ride even at 11 pm or at the maximum, I had to book an Ola for him to commute.

In the Supreme Court, I had a woman PA, since she drives and she does not stay far away.

It is all very easy to say that women should have the freedom to move about freely, but whether it would be safe for me even at the age of 65 to walk down the street alone, unescorted, is a question mark.

I was myself denied a job at a law firm in Calcutta, not because they discriminated against me for my gender, but because they used to brief counsel sometimes at midnight, and a woman would be needing means of travel and escort if she is present as well.

DR: During your time at the Supreme Court, you were a member of more than 400 benches, many of which you headed. Do you think male judges still find it a little difficult to digest a woman judge heading a bench?

IB: You are embarrassing me. You perhaps know the answer. I have sat with Justice AS Bopanna, who was the most courteous, but unfortunately, the duration of that bench was short-lived. Justice V Ramasubramanian was the same.

Every judge has the right to speak and some have a right not to speak. Some are talkative in nature, and I have not had the chance to see that judge sitting with another male judge who was senior on the bench. There are judges who are quieter, but there is a feeling that they are finding it difficult to swallow that the bench is headed by a woman. I think some mindset is working here.

DR: Have you been spoken over by a male judge while on the bench?

IB: Very often. Very often.

DR: Why do you think this happens?

Justice Banerjee: I do not know

DR: How did it make you feel?

IB: If the question is relevant, it is fine. I am not a very talkative person on the bench.

DR: Has there been an occasion when the hierarchy of judges got disrupted on the bench, merely because you were a woman?

IB: Yes. Sometimes I feel that if something has happened, you give benefit of doubt. But it may not have happened with some other senior judge.

Let me tell you clearly, one particular junior judge on the bench...I do not know if he was put with me on the bench knowing my nature not to gun after anyone.

There are serious things which have happened. Five judgments were authored by me after burning the midnight oil. Not only me, but there were court masters who spent the whole night in my residence and judgments were prepared.

The next morning, the office of the junior judge instructed my office to not list the matter because he did not get time to read the judgments. If reading for Friday briefs is important, then is it not important that you read the judgments to be delivered in cases which have been heard for 10 days? You just say whether you agree with the conclusion or you do not agree. Posterity would not know that the judgment was ready.

Whether it is that I authored the judgment, or I am a woman judge or whether it is that he would not have the guts to do this if the senior judge was Justice DY Chandrachud and not me, I do not know.

One judgment was lengthy and the other four were only five pages long. Now all the cases would have to be re-heard entirely, because I have now retired and I have not pronounced the judgment in open court. Every other judge has cooperated.

I always believe that the interest of the judiciary will always be foremost in my mind. The judge could have cleared three and said that I could not read one, or that he did not agree.

I also take responsibility for giving the judgments at the last moment, because of my burnt finger and bereavement in the family. It is due to me also...

Stay tuned for Part II of the interview.