'Fearless, Symbol Of Women Empowerment' : A Look At Justice Hima Kohli's Term

After a tenure of nearly three years, the Supreme Court has bid farewell to one of its three sitting women judges - Justice Hima Kohli.

An alumna of Campus Law Centre, Delhi, Justice Kohli obtained her law degree in the year 1984. In the early stages of her career as an Advocate, she worked with three seasoned lawyers, who eventually went on to adorn offices as Delhi High Court judges (Justice Sunanda Bhandare and Justice Vijender Jain) and Chief Justice of India (Justice YK Sabherwal).

In over 20 years of practice, Justice Kohli represented the Government of Delhi in several important public interest litigations. She was also a Legal Advisor to the Public Grievances Commission, Delhi Pollution Control Committee, National Agricultural Co-operative Marketing Federation of India, National Co-operative Development Corporation, private organizations, banks, etc.

In December, 2004, she was appointed as Additional Standing Counsel (Civil), GNCTD at the Delhi High Court, and about 1.5 years thereafter, as Additional Judge of the High Court. She finally took oath as a permanent judge in 2007.

Justice Kohli continued to remain a Judge at the Delhi High Court until 2021, when she was transferred to the Telangana High Court and earned the distinction of becoming its first woman Chief Justice. Six months later, on 31 August, 2021, she was appointed as a Judge of the Supreme Court.

During the three years of Judgeship at the Supreme Court, Justice Kohli was part of many important matters, like the same-sex marriage case, the Pegasus spyware probe case, the Patanjali contempt case, the GNCTD v. Union of India case, etc. She also acted as Chairperson of the Court's Internal Complaints Committee.

In celebration of her contribution to the legal field, let's revisit some of Justice Kohli's noteworthy decisions and opinions.

On Gender-Specific Issues

♦ Sexual harassment at workplace (Aureliano Fernandes v. State Of Goa And Others)

While dealing with the issue of sexual harassment of women at the workplace, Justice Kohli vociferously opined that the salutary objects of the Prevention of Sexual Harassment of Women at Workplace (POSH) Act will remain unfulfilled unless there is strict adherence to its enforcement regime and a proactive approach on part of all state and non-state actors.

"If the working environment continues to remain hostile, insensitive and unresponsive to the needs of women employees, then the Act will remain an empty formality. If the authorities/managements/employers cannot assure them a safe and secure work place, they will fear stepping out of their homes to make a dignified living and exploit their talent and skills to the hilt", she said.

The judge, part of a bench presided by Justice AS Bopanna, authored the judgment, issuing a slew of directions for proper implementation of the POSH Act. This bench also directed the Union Government, State Governments and Union Territories to verify if all the Ministries, Departments, other government bodies had constituted committees where victims of sexual harassment could lodge their complaints.

Further, statutory bodies of professionals such as the Bar Council of India, the National Medical Commission, the Institute of Chartered Accountants of India were directed to constitute such committees.

Interestingly, the rendering of the judgment coincided with the completion of a decade since POSH Act was legislated. Given the serious lapses in the enforcement of the Act over this decade, the Bench underlined that being a victim of sexual harassment brought down self-esteem of a person as well as their emotional, mental and physical health. Despite this, if incidents were going unreported, one of the reasons could be uncertainty about “who to approach under the Act for redressal of grievance”.

To ameliorate the malady, it is imperative that victims be educated about the import and working of the Act, the bench said.

♦ Legal recognition to same-sex marriage [Supriyo v. Union of India (and connected matters)]

Justice Kohli was part of a 5-judge Supreme Court Bench, which refused to grant legal recognition for queer marriages in India saying that it was a matter for the legislature to decide.

Dissenting from the view taken by CJI DY Chandrachud, Justice Kohli concurred with Justice Ravindra Bhat's opinion that an entitlement to civil union could only be through enacted law. She spoke through Justice Bhat's judgment that the Supreme Court could not ask the State to create a legal status for queer marriages.

Further, the judge was in agreement with the distinction created by Justice Bhat between earlier cases on queer rights (where the Court protected queer persons from violence or criminalization based on State's duty to protect citizen's right) and the case at hand.

Be that as it may, Justice Kohli agreed with the view that queer couples have a right to relationship. This opinion was however qualified by the observation that there was no unqualified right to marry which could be treated as a fundamental right.

"While we agree, that there is a right - which we will characterise as a 'right to relationship' to avoid confusion – we squarely recognise it to fall within Article 21, as already recognised in the afore-cited cases. The right to relationship here, includes the right to choose a partner, cohabit and enjoy physical intimacy with them, to live the way they wish to, and other rights that flow from the right to privacy, autonomy and dignity."

It was further Justice Kohli's opinion that if queer couples' right to enjoyment of their relationship is under threat of violence, the state is bound to extend necessary protection. While recognizing that denial of benefits such as a Provident Fund, ESI, pension etc. to queer partners could have an adverse and a discriminatory effect, the judge opined that addressing the concerns would involve a range of policy choices. Thus, a High Powered Committee formed by the Union shall examine the aspects.

♦ Termination of Pregnancy

In 2023, a bench comprising Justices Kohli and BV Nagarathna allowed medical termination of pregnancy of a married woman who was 26 weeks pregnant. The woman was a mother of two children, who told the Court that she was suffering from post-partum depression and was not in a position to raise a third child, emotionally, financially and mentally.

Subsequently, however, a recall application was filed against the order by the Union, stating that as per the medical board, the foetus had a viable chance of being born. Under these circumstances, Justice Kohli refused to permit termination of the pregnancy, saying her "judicial conscience" precluded her from doing so, in light of the medical report about the possibility of survival of the foetus.

However, as the second judge on the bench - Justice BV Nagarathna, was in favor of permitting the termination, the issue was referred to a larger bench. Ultimately, a three-judge bench led by CJI Chandrachud rejected the petitioner's plea for termination of pregnancy.

On Decongestion of Prisons (In Re-Inhuman Conditions In 1382 Prisons)

During her tenure at the Supreme Court, Justice Kohli presided over a public interest litigation initiated to address the issue of overcrowding in prisons of India. In this case, the States/Union Territories across India were directed to constitute District-level Committees to assess and report on available infrastructure in jails and give a decision on the number of additional jails required in terms of the Model Prison Manual, 2016.

Statedly, the data collected was an eye-opener even for the state governments. Senior Advocate Gaurav Aggarwal (who was acting as Amicus in the matter) lauded the exercise, saying, "First time I think it would have happened...that actually jail wise somebody has gone with the judicial side, administrative side, police side and the DLSA side to examine and they have identified that yes there is overcrowding, whether we can use the premises for construction, whether we need a new construction or not. I think that assessment state government had never done to the best of my recollection".

Underlining that there was nothing adversarial about the case, Justice Kohli was heard voicing at one point that overcrowded prisons were not the idea of punishment.

"...nothing could be more important than the fact that, maybe a person's right to moving around freely is curtailed but doesn't mean he/she has to stay in a place which is so dingy, so difficult, so crowded, in such conditions that the person goes out more ill...That's not the idea of punishment", the judge said.

The directions in this case have led to state-wise assessment of jail infrastructure across India and given a nudge to the projects for expansion of jails to adequately accommodate inmates.

On Public Health

♦ Ramping up of testing, state response during Covid-19 pandemic (Rakesh Malhotra v. Govt. of NCT of Delhi)

While she was a Judge at the Delhi High Court, Justice Kohli came in seisin of a public interest litigation seeking a direction to the Delhi Government for ramping up of testing facilities for patients of Covid-19.

Alongside Justice Subramonium Prasad, the judge passed numerous orders which had the cumulative effect of increasing the number of labs for testing Covid-19 and decreasing the waiting period for the test results.

Apprehending that Delhi was fast heading towards becoming the "corona capital" of the country, the Justice Kohli-led bench directed in June 2020 that all private hospitals in Delhi, which were called upon to reserve 20% beds for admitting Covid-19 patients, were equipped with labs to conduct the Covid-19 test and had sanction of the ICMR to do so, proceed to conduct tests on persons who sought admission in the hospital for undergoing surgeries/procedures of other nature as well.

Few months later, the bench also directed that hospitals and labs not take more than 24 hours to communicate Covid-19 test results and the same be communicated on the mobile phones of the patients within that time.

Pertinently, the judge also nudged the Delhi government to pro-actively engage Resident Welfare Associations and Market Welfare Associations for better implementation of the Covid-19 prevention regime, to take a call on the need for night curfews, to maintain strict norms around movement of public and its adherence to protocols in place (such as use of masks, social distancing) etc.

♦ Patanjali misleading ads case (Indian Medical Association v. Union of India)

Justice Kohli was the senior judge presiding over the Patanjali misleading ads contempt case in the Supreme Court. Though the contempt proceedings initiated against Patanjali, its co-founder Baba Ramdev and managing director Acharya Balkrishna were eventually closed, the bench led by Justice Kohli sent out a strong message during the proceedings that the Supreme Court was not going to permit fast-moving consumer goods (FMCG) companies to take consumers for a ride through their misleading ads.

It also declared that the fundamental right to health encompasses the right of a consumer to be made aware of the quality of products being offered for sale by manufacturers, service providers, advertisers and advertising agencies.

During these proceedings, Justice Kohli expressed the view that FMCG companies' misleading ads affect health of babies, school going children and senior citizens who consume their products on the basis of the misrepresentations. Accordingly, the Court delved deeper into the status of implementation of the Drugs and Magic Remedies (Objectionable Advertisements) Act 1954 (and the Rules), the Drugs and Cosmetic Act 1940 (and Rules) and the Consumer Protection Act.

The latest development in this case came when a Justice Kohli-led bench stayed the operation of a notification issued by the Centre to omit Rule 170 of the Drugs and Cosmetics Rules 1945 (which prohibits advertisements of Ayurvedic, Siddha, or Unani drugs without licensing authorities' approval).

Pertinently, this case also led Baba Ramdev and Acharya Balkrishna to issue public apologies for publishing misleading advertisements on allopathic medicines, in violation of a Court undertaking.

On Delhi Govt's Control Over 'Services' (Government of NCT of Delhi v. Union of India)

Justice Kohli was part of the Constitution Bench that delivered the 2023 judgment upholding Delhi government's control of "Services", excluding public order, police and land.

Vide this judgment, the Supreme Court held that the National Capital Territory of Delhi had legislative and executive power over administrative services in the National Capital, excluding matters relating to public order, police and land.

If services are excluded from its legislative and executive domain, the ministers and the Executive, who are charged with formulating policies in the territory of NCT of Delhi would be excluded from controlling the civil service officers who implement such executive decisions, the Court said.

The Constitution Bench, including Justice Kohli, further observed that if the officers felt insulated from the control of the government, it would dilute accountability and affect governance. Thus, in a democratic form of government, real power of administration must rest with the elected arm of the government.

Importance of federal structure of the country was also underlined by the bench, saying that it shall be ensured that governance of State is not taken over by the Union.

On Independence Of Judiciary

In March, 2023, Justice Kohli addressed a symposium on 'Independent Judiciary: Critical for a Vibrant Democracy' organized by FICCI. In this event, she underlined the judiciary's role as the conscious keeper of the Constitution and stressed that its independence is pivotal for smooth governance of a democratic system.

“Independence of the judiciary is not just a principle but a moral imperative. The relevance of an independent judiciary cannot be overstated especially in a country like India which is not just a 'Democratic Republic' but has been described in the Constitution, as a 'Sovereign, Socialist and Secular, Democratic Republic'," Justice Kohli said.

The judge emphatically observed that the judiciary's function of providing checks and balances on other branches of the State is decisive in preventing concentration of power in any one branch. "Absent the judiciary's role of maintaining checks and balances, democratic institutions would be vulnerable to corruption, abuse of power and erosion of the trust of the citizen in the government", she said.

Speaking on the relation between independence of judiciary as a unit and impartiality and integrity of individual judges, Justice Kohli commented, “Judges must remain free from any political, personal, or extraneous influences that may compromise their independence or impartiality. Guided by the principles of justice, fairness and impartiality, they are expected to be honest to their oath and ensure that justice is dispensed without fear or favor, affection or ill will".

In the upholding of democracy, she said that media organizations and persons also have a critical role. Further, she stressed that the judiciary must be allowed to interpret the Constitution and make decisions based solely on the Constitution and the laws: "It is this interpretation that offers a guarantee for the Constitution to remain a living document that keeps on evolving over time, while remaining rooted in its fundamental values and principles".

Farewell to the "Fierce Protector of Women's Rights"

Quite apparently, Justice Kohli is revered as a judge who heralded the cause of women empowerment. Not only through her decisions, but also as Chairperson of the Internal Complaints Committees of the Delhi High Court and the Supreme Court, she brought increased attention to women's rights and issues.

Her nuanced understanding of these issues, and unshielded recognition of the power differential that exists in society between men and women, have given shape to certain decisions (like in a dowry death case) which will guide future generations on how to deal with women-centric crimes.

On the eve of her retirement, here is what Senior Advocate Rebecca John had to say in an exclusive with LiveLaw: 

“Justice Hima Kohli's contribution to the legal field both as a lawyer and as a judge is commendable...Speaking for myself, I admired the robustness and fairness that she brought (first as a member and then as Chairperson) to the Internal Complaints Committee set up under the POSH Act by the Delhi High Court. We dealt with difficult cases and situations and she intuitively brought clarity to these proceedings. She was instrumental in setting up Internal complaint committees at the Bar Council of India and Bar Council of Delhi as she felt that statutory bodies must have functional Committees under the POSH Act. During my interactions with her as a member of the Delhi High Court IC , I found her understanding of issues relating to sexual harassment at the workplace to be comprehensive and consistent.

Justice Kohli was the founding member of “Women in Law and Litigation (WILL)" set up at the Delhi High Court, as a platform to bring women lawyers together. In her interactions with other members of WILL, she emphasised the need for senior lawyers to mentor junior lawyers, particularly women lawyers and with that goal in mind WILL organised several lecture series on topical issues. During the Covid years, WILL brought together several senior women lawyers who conducted online lectures on important issues of law. Justice Kohli took a personal interest in all these events as she felt the need to make WILL an inclusive platform where women lawyers could learn, interact and evolve."

Looking back on her experience appearing as a senior counsel before Justice Kohli, Senior Advocate Shobha Gupta also shared with us an anecdote: 

"I know Justice Hima Kohli from my days of a young lawyer in Delhi High Court. What a journey of commitment and perseverance. A career so well pursued. A very deserving symbol of empowered women. I had a privilege to appear before the bench led by Justice Kohli in my first brief as a senior counsel and though I was the second counsel, she in her hallmark manner very politely but subtly asked the lead senior counsel 'let us have the privilege to hear the newly designated senior counsel'. That made my day and gave me the pleasure of arguing my first senior brief before a very strong woman judge, with whom I am always so hugely impressed, because the power of womanhood she reflects with her sheer presence even if she doesn't speak a word. She happens to be our 9th women judge in SC, I wish she were the 90th if not more. Despite having strong and very worthy women judges like Justice Fatima Bibi, Justice Sujata Manohar, Justice Ruma Pal, Justice Hima Kohli, Justice B.V. Nagarathna (sitting judge of SC who is going to become the first woman chief justice of India) to name a few, one wonders why we as a country are still lagging behind and failing to have more and more women judges in High Courts and Supreme Court. Justice Hima Kohli though had a very limited stint in SC, she would always be very fondly remembered by a feminist lawyer like me for her sheer grit, a no-nonsense approach and the pointed and sharp questions. The young women lawyers have a very worthy role model in Justice Kohli to follow. I wish a very relaxing, healthy and refreshing re-attiring life for Justice Kohli."

Senior Advocate Rana Mukherjee, on the other hand, lauded the judge for standing strong and tall amidst a "male-dominated judiciary":

"Justice Hima Kohli a fearless Judge having the unique distinction of getting mentored by 3 High Court Judges one of whom later on became the Chief Justice of the Supreme Court of India has been a fearless Judge advancing the cause of women's right was tough in court yet compassionate to a fault. Her famous quote “Practice of law is not an old boy's club" cut hard. She was one of the many Lady Judge(s) who stood tall in an otherwise crowded male dominated Judiciary."

Reminiscing the tech-savviness exhibited by Justice Kohli during a matter, Senior Advocate Shirin Khajuria had the following experience to share:

"There was a voluminous matter before justice Kohli running into many pages and volumes. I was using hard copies as I thought it was a quicker way of moving through the files. But I was taken completely by surprise when Justice Kohli opened the relevant page on her iPad even before I had retrieved the relevant volume! A learning I have taken to heart !"

Advocate-on-Record Mohini Priya, speaking for women lawyers like her who were inspired by the judge, commended Justice Kohli's understanding of the human stories underlying the cases she was presented with:

“As one of the three women judges of the Supreme Court, Justice Hima Kohli has had a profound impact on me on a professional as well as personal level. I have always admired her ability to balance the rigorous demands of legal judgment with a genuine understanding of the human stories behind each case specially when it related to rights of women and the underprivileged. I recall being present in the proceedings when she, along with Justice AS Bopanna, issued groundbreaking directions to ensure the effective implementation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Witnessing her hold a prominent Yoga Guru accountable for misleading advertisements was a powerful testament to her dedication to legal integrity. Her straightforward and fearless approach continues to be an inspiration for many women lawyers like me.”

On August 30, during the ceremonial bench proceedings held to bid farewell to her, CJI Chandrachud also lauded the fierce dedication with which Justice Kohli stood for the rights of women and ensured that they enjoyed equal working conditions in the legal profession.

Senior Advocate and President of SCBA Kapil Sibal, on his end, applauded the sharp sightedness of Justice Kohli and remarked that she was destined to become a judge. "When we come to your court, and see you with your glasses down on your nose and you looking up, we know we are in trouble...nobody can finesse you, nobody can throw a googly at you. You were destined to be a judge!" he said.

(The author is a Desk Editor/Supreme Court Correspondent at LiveLaw. She may be contacted at debby@livelaw.in)