I was asked to decide menu for court function; woman judges can handle heavy matters: Justice Hima Kohli [Part I]

Justice Hima Kohli is one among only eleven woman judges to have graced the Supreme Court in its 75-year history.

In a male-dominated profession, the path to the apex court for a woman practitioner is fraught with a wide array of pitfalls, some of which Justice Kohli also faced during her career.

Born on September 2, 1959, she enrolled with the Bar Council of Delhi in 1984 and practiced in the Delhi High Court after that.

In 2006, she was appointed as a judge of the Delhi High Court. In 2021, she took oath as Chief Justice of the Telangana High Court. In August 2021, the Collegium recommended Justice Kohli for elevation to the Supreme Court. She was appointed as an apex court judge on August 31, 2021, and retired recently after a three-year tenure.

During her tenure at the apex court, Justice Kohli authored around 40 judgments and was part of benches that delivered verdicts in 208 cases

In the first of this two-part interview with Bar & Bench's Debayan Roy, Justice Kohli talks about her journey as a woman lawyer and judge, the allocation of cases at the Supreme Court, and more.

Edited excerpts follow.

Debayan Roy (DR): You once shared that you started your practice from the boot of a car. Can you take us through those early days in the profession?

Justice Hima Kohli: It started with my family thinking that after I had done my MA in History, perhaps I was cut out to do something in the civil services and take the Union Public Service Commission (UPSC) exams. Or perhaps go the academic way like my maternal side of the family who are all professors and lecturers and that was the done thing in the 80s to be safe, secure and well-sorted. It did not appeal to me. But at the same time, I did not know what to do because there was nobody who had ever done law (in my family) or any guidance or any background, so initially I thought I should try my hand at civil services. Campus Law Centre (CLC) was next to my Arts faculty building, so I filled the form and went the legal way. And when I went into the law, I found it very interesting and distinctive, and developed a liking for it. 

I told my parents I will try my (UPSC) preliminaries, and if do make it, it is just to tell you I can do it, but I do not intend to pursue it. So, they took it with a pinch of salt and said they will take a call closer to time. I cleared my prelims, and they were pretty much confident that I would clear the mains, and that is when I put my foot down and said that if I clear mains, I will have no way to get out of the system. So I said nothing doing; I want to do law, and I continued with it. 

I ran my office from the boot of my car, there was no backup, I knew nobody in the legal system, my parents did not know anybody who was a lawyer. It was new to go to courts at that time, and considered the worst thing to have to go there with a lawyer. I went to Sunanda Bhandare's chamber and she was getting elevated as a Delhi High Court judge. I got that entry point, which was a break for me. In those days, getting an entry point was a big deal. Once you get in, you can find your space and take a call further. 

I worked for a while and decided to work in the High Court at YK Sabharwal's chamber. But the challenge came when the third senior I worked with got elevated and I realised there was no chamber or office space I could work from. I had lost my father around the same time...Clients were scarce initially because all the practice had gone and you were working with your senior (who became a judge).

So, the desire to make my mark...that was my inspiration from seniors. I did not know where to set up. There was nowhere to sit or have a conference with anybody…I did not even have a place to put my gown or diary initially, so I only got a locker…forget a chamber. Nobody told us we had to apply for a chamber three years ago. The car was a good starting space because my dad gave me a vehicle that worked for me. So the dickey had all the briefs and all the formats and forms...all basic stationery. That is how I took off. 

DR: You were the first woman Chief Justice of the Telangana High Court since the bifurcation of the High Court in 2019. How was the shift from North to South? Were you able to bring about any notable changes?

Justice Hima Kohli: It was a very enriching experience because I am born and brought in Delhi and hadn’t seen any other part at length, except during holidays. Going to Hyderabad was a brilliant exposure to the culture, the roots, the warmth and extra effort that the people took to make me feel comfortable. I did not expect that, because it was an all-man court. There were no women except one, Justice Sridevi, who had come from UP, also on a transfer. We were in peak COVID-19 times, things were very rough.

I had taken oath in January 2021, which was the time when COVID was on, and I demitted the office there for the Supreme Court (later that year)...so there was not that much of a window. But I think I am glad I was able to make that Court go forward...There was a little resistance I did receive from my colleagues, but they were very supportive by and large.

I told them it was a cause of great concern for litigants that matters kept getting adjourned as they did not know what the next date was, and it was causing corruption at the Registry, as they could play around with the listing. I had a lot of virtual full court meetings that worked well, bounced off ideas with colleagues, and told them that the court master will fix a next date. Thankfully, all matters were never adjourned without a next date which I thought was a comfort for the litigant so they know where the case is going. 

Another thing was the strength of the judges at the Telangana High Court post the split...there were only 24 and we were looking at humongous numbers of matters that were pending for long. I made a request to expedite and we got a strength of 42, virtually double the earlier strength in that duration. While heading the High Court Collegium, I was able to push in 20 names of judges from the Bar as well as the district court, and almost all came through. During peak COVID, we did virtual meetings and we were able to designate 20+ Senior Advocates.

DR: When you were elevated to the Supreme Court, there were only a handful of women judges there. And as you demit office, the number has only reduced. When do you see this scenario changing?

Justice Hima Kohli: For my generation - and I hope it does not happen in the future - there was a situation when there were no women, then one woman, symbolic in the true sense. Justice Indira Banerjee was there before us and then we three joined - Justice BV Nagarathna and Justice Bela Trivedi, so it was big deal. There was never ever such strength in the Court and much credit goes to then Chief Justice of India NV Ramana, who agreed that out of nine (new appointees at the time), there should be three women. At the end of the day, there needs to be a pool to select from, both lawyers and judicial officers, for both Supreme Court and High Courts. While we have many women in the district judiciary...there are few in some High Courts where there were few serious practitioners ...so advocates were few to select from... and I faced this in Telangana, but I could still designate some women seniors for the first time and that was a big deal. 

Similarly in the Supreme Court, if the pool is too small to select from, and you are looking only at Chief justices or go down the line and look at puisne judges, which has been the trend recently for both men and women...for the sake of getting more women, if they must go a little further down, I see no harm up to a point. But perhaps not overlooking the woman Chief justice, who, through the dint of hard work, has made it to the top and should remain in the zone of contention. So the problem is in enlarging the pool....the more they are mainstreamed and in active litigation practice, the larger the pool is for selection.

DR: As a woman judge in the Supreme Court, did you ever face any kind of gendered bias, especially from your colleagues? Has such bias completely departed from the apex court?

Justice Hima Kohli: Let us make it larger when it comes to feeling gender bias from the High Courts too. That is how we go up. We are not talking about (just) three years, but maybe twenty, when you enter the system. Initially, one does find (gender bias), and I am not generalising because I have had all kinds of supportive male colleagues and those who have not helped. You have to work harder to prove your point and be taken seriously. Much lies in your own hand also because of how you conduct yourself, sometimes you give respect and the other reciprocates. But then again, people think women must get lighter work, lighter jurisdictions, stuff like that which would be not so heavy, maybe not Constitution or Full Bench issues, compared to men. Which I think is not fair.

Speaking for myself, I think except for two Full Benches, I never got to sit in that in so many years! There is nothing wrong as a judge in asking to be given heavier benches, with more work needing constitutional issues to be fleshed out. It is happening now and I am happily seeing it in the High Courts.

If there are official functions in the courts - and there are plenty in the courts - who would be the go-to person for the menu? A lady judge. Why would it be a lady judge? Is it that men do not need variety? It should not be a woman judge merely because she would know what is better to cook etc. In the Delhi High Court, when I was asked to fix the menu for an event, I said that it must go to the committee which looks into it and not just a lady judge.  

I should not be made to feel like that. But for men I suppose it may come naturally and somebody needs to tell them. You must command the respect, and it will come to you!

Why can't you be a part of infrastructure committees etc? Merely because you are a woman? Or like juveniles and family courts only? Why can't it be IPR, arbitration or purely commercial matters too? It should come as easily to you as any male colleague. You have done that work in different phases of your life as a lawyer.

DR: And what about the Supreme Court?

Justice Hima Kohli: There, I haven’t felt that kind of abrasion vis-a-vis my male colleagues who have been more than supportive. They treated me equally, I will be the first to admit, and must credit them for all the respect I got, I am grateful. I got to sit in Constitution Benches with the CJI. So, I cannot complain on that front. This is not a court that is jurisdiction-centric, so it is a mixed bag. It is not that some sets of matters are thrown at you. They were much more accepting. In fact, the three of us (women judges) were really welcomed warmly by most of our colleagues.

DR: The Kolkata rape and murder case has sparked social media confessions by women lawyers on how they have been harassed in office by their male superiors or colleagues. Is it just those women with a very strong support system who will survive in this profession while others quit?

Justice Hima Kohli: It was a matter of chance that in Delhi, I was heading the Internal Complaints Committee (ICC), and we came across such cases. I am sorry to say that we discovered that there was no ICC set up by the Bar Council of Delhi. And complaints that came from women lawyers had to be directed there, because we in our position were supposed to handle it within the Court...I remember heading committee meetings and calling them and asking where are those systems and why are they not there? Where will a women lawyer go if they are harassed by a colleague or staff or maybe even a male judge if they had a complaint?

We asked the Bar Council of India (BCI) who was the appellate authority. People did not even know it is the Bar Council of the State and not the Bar Association which issupposed to take it up....That is why, when I got an opportunity in the Supreme Court, I flagged this issue and said that all ICCs need to be revamped and implemented according to the statute, because I found that there was a complete vacuum. If it can happen in city-state like Delhi, it can happen in all High Courts. We requested that courts set up dashboards and create the spaces. We said that lodging a complaint physically should not be the sole option...very few as you said are willing to come forward, and if they do, they do not know whether it will die a natural death.

DR: What can be done to ensure that women lawyers feel safer working late hours in the same chamber as her harasser?

Justice Hima Kohli: Chambers and law firms both work late hours. Speaking for myself, our law researchers would work till late hours. One would always be worried about them and take responsibility for them to reach home. These days, youngsters are so forward-looking; they will say we booked a cab, and I would say we need to track you as a responsibility, because many of them have come from out of Delhi to make a living. So women need to be vocal.

There is some extent of misuse of this provision sometimes, which we have come across when we deal with complaints. This gives a bad name to the whole thing because sometimes even some frivolous cases come that have other vested interests...It dilutes the cause. So, it is very important that women realise how important this tool is and use it correctly and not to hesitate.

I remember in the Delhi High Court, we had a woman making a complaint against her colleague. I had passed an order directing that the High Court provide her conveyance from the Court to the closest metro or the house, as negotiating the last mile was a challenge for her...Some things you must do to go the extra mile. Ideally, so she does not have to see the man again...We have passed orders like that and it is for the ICC to do so and see it implemented.

DR: Do you think the allocation of cases in the Supreme Court on the basis of subject matter expertise of judges can be improved?

Justice Hima Kohli: It is up to the CJI. The question is perhaps to be directed to the institution. Perhaps it is better if one’s jurisdiction is not limited to one court...We find that here everything is thrown your way - bail, GST, specific performance, family court. If it is rotated more often, perhaps that would be better than the six-month rotation. Because some bench would only end up doing routine civil or Motor Accidents Claims Tribunal (MACT) matters.

DR: In the recent past, some politically sensitive cases have being assigned to particular benches that are not relief-oriented. Some litigants have even withdrawn cases on knowing before whom their case will be listed. Is there a need for introspection on this aspect?

Justice Hima Kohli: The introspection would be, at one level, on the person at whose hand it is to assign those matters. On the other, it is with those who are dealing with such matters. In the recent past, if you bear with me, there has been introspection. You have been noticing it - that it has been said that it is not the way to go about when it comes to bail, personal liberty. That PMLA, UAPA cannot be the only guiding factor in such matters that need to be kept in mind. And I am happy for it and I am glad, and perhaps it is part of our introspection. Some of us are made that way and some are not. Not just those matters, the mind of a judge is by and large known to the Bar having appeared so often. Many times, (as lawyer), even I have said there is a pro-landlord bench.

DR: Have you ever withdrawn a case on those grounds as a lawyer?

Justice Hima Kohli: Maybe deferred it, in the interest of my client (laughs). Or said that we are in no hurry to take it up. All kinds of excuses, you know! (As a judge). sometimes, the Bar knew before we did as to what our rosters would be. So that is also part of being a lawyer is it not?

DR: The apex court has been criticised for not following its own verdicts on bail being the rule and jail the exception (re cases of Sisodia, Kejriwal, Bhima Koregaon accused). Do draconian bail provisions under UAPA and PMLA prevent the courts from implementing this basic criminal law principle?

Justice Hima Kohli: The need to reconsider should come from the legislature, I would not be one to speak about their domain. And you are also aware of the fact that once courts decide in a particular manner, the legislature overcomes the judgment if it is not acceptable to them. That is their prerogative as an elected body coming from the public.

But when it comes to courts, one must always keep in mind that the fundamental principles of freedom and right to liberty cannot be compromised. In certain circumstances, as you said, they are draconian laws that must be interpreted strictly. But that does not mean only in favour of the ED or the CBI. Strictly means on both sides.

If you find there is fault on the part of the agency or any party, then you have to take it to the root of the right to personal liberty in our Constitution that we live, breathe and swear by. These tenets should not be compromised in any which way. The message should be that even in these statutes, bail is the rule, and when trial is not starting or taking long, courts have to look at personal liberty not being compromised.

DR: You became a household name during the Patanjali contempt case proceedings, when the Court did not mince words. Do you think such a way of handling cases have become a rarity now in the top court? If so, why?

Justice Hima Kohli: So part of the question is answered by you in saying it is rare and does not happen that often. Contempt is a jurisdiction that we do use rarely. Ordinarily, we do not use it to prove a point or show that the Court is so superior to others that it can call the shots, that is not the case. When we are talking about the majesty of law, we mean the Court's respect in the eyes of the public...once started it must be taken to its logical conclusion without there being any negotiation. If an order is not implemented, it reduces the majesty of the Court, not even the judge. It is a very important jurisdiction. It should be used sparingly, but when used, it should be taken to its logical conclusion unless there are reasons not to. 

Like when a person apologises and it is only lip service, you can make out while in court. At the same time, it is not that you should take every contempt to the farther end of sending people to jail; that is not the purpose and will dilute the contempt jurisdiction. The person should know nobody is above the law. That should apply irrespectively across the board, irrespective of faces or personalities. Then the last man in the queue should also know that if he violates a court undertaking, there are serious consequences to follow.