Justice Hima Kohli at Idea Exchange: ‘The safeguards for judicial autonomy must come from within’

When I became a judge, we had some women in the Delhi High Court. All, except one, were from the district judiciary and then others also came in. So one had a comfort zone. But in the Supreme Court (SC), I was only the ninth women judge to be appointed. We are talking of a span of seven decades. When my two
female colleagues and I came, Justice Indira Banerjee was there and happily welcoming us. So it felt good to be at least four, if not more.

I only hope that I look to see the day when we have a buzzing SC of maybe 50 per cent women representing the population in proportion to the women population of 48.5 per cent in the country. But that will take a bit of time, let’s be honest.

Apurva Vishwanath: How important is it to have representation based on identities — gender, minorities, caste…

It gives a balance. It gets more people with their experiences onto the bench, it adds value and what are hands-on experiences. All those layers which you carry with you, they do add to matters that are constitutionally important. I’m not saying communities at all, it should not be done that way in any case. Merit should count and if that is the only count, I would say that maybe then many would be sidelined and not have a representation at all, which would to an extent create an imbalance of sorts. So those life experiences they carry would count to mull over and interpret the Constitution in particular manners. It broadens the path.

On how India looks at abortion I wouldn’t say that the right of the foetus overcomes the right of the mother because ultimately she owns the body in which the child is living

Apurva Vishwanath: In an abortion case you decided, you disagreed with Justice Nagarathna and said your conscience doesn’t permit you to allow termination of pregnancy… It led to a debate around the rights of the foetus versus a woman’s right to choose. Are we changing how we look at abortion in India?

To start with, I didn’t say my conscience, I said my judicial conscience. So that makes a difference. I always prefer to keep myself as me away when I am on the bench because we have to look at things judicially. The counsels put before us that the woman was reluctant, and that they had a complete family. We sent the case to a body of experts (doctors) since the lady had crossed the Rubicon of 24 weeks (statutory limit for termination of pregnancy). The way the report came, it was worded to my mind a bit guardedly, and as an afterthought. So I gave consent for the abortion. Then came the second report by the same set of experts. Now, they were more candid that the foetus had a life by then and they didn’t see anything unhealthy about the foetus and that the life of the woman would not be in danger. In that process, and in the interaction with the woman, and going through the records, to my mind, it was a case where maybe the child, the foetus, who had a life, took precedence over the mother’s resistance to having the child.

Former Supreme Court Judge Hima Kohli during Idea Exchange at Indian Express Noida office (Express photo by Abhinav Saha)

As an aside, I later checked on the case to make sure the child has a home. I was told they had a baby boy who the parents didn’t want to part with and insisted that they wanted to keep the child as part of the family, and they had settled well. It was very heartening for me to know that. Not that that would have counted when the decision was taken, but post-decision it felt good to know that the child remained in the same family and remained with the  biological parents.

Apurva Vishwanath: The decision came when there was a parallel conversation in the US on the Dobbs verdict, and foetal heartbeat as a yardstick. So it did seem like that was a turning point in how India looks at abortion.

I think it was very case-specific. There was no message that was being given that a woman can’t drop a pregnancy in circumstances contemplated under the statute. So I wouldn’t say that the right of the foetus overcomes the right of the mother because ultimately she owns the body in which the child is living. So one can’t make small of it. I don’t think so.

Apurva Vishwanath: On the same-sex marriage case, all five of you on the bench had delivered judgments overwhelmingly in favour of liberty in your long tenures. So, what was going on in your mind when you were hearing the case?

See, I’ll be very candid. We were open to everything. In my mind, we were very clear that they are entitled to many rights. Several of them were put on the record and we said that the respect that goes with this, one must respect the relationship, one must respect their independence, one must ensure that they have all those rights of opening bank accounts, of provident fund accounts, of having joint accounts, all of that, transfer of properties, everything. But the fundamental issue at that time was recognition of marriage under a particular statute. I agreed with Justice (S Ravindra) Bhat that the statute was not tailored for this particular relationship. One could not read so much into it, or read it down so much into the statute, to be able to give it a sanctity in law.

Former SC Judge Hima Kohli (Express Photo by Abhinav Saha)

At the end of the day, these things should come from society and go up. It can’t be foisted by the judiciary and filtered down. That’s not the route. If society is
more accepting, if society evolves and grows as it does, and all of us are doing it from time to time, this may be a reality in the near future.

Apurva Vishwanath: Would it have been better for the High Courts to have heard the issue before the SC took it up?

I can’t comment on that because that was the prerogative of the Chief Justice of India to have taken it up. They were pending matters, it’s not as if he pulled it out from various courts. Perhaps, that was done earlier, prior to him, I don’t recall. To my mind, it works better when we have the benefit of one or two judgements from High Courts. We do this, for example, in taxation matters where even when the government comes up and says, club them all, bring them to the SC, we say, all right, let us have one HC hear the case, where it is at an advanced stage, and then you come to us. So there are ways and to my mind having the benefit of one judgment coming from a constitutional court is certainly required in many matters.

Ajoy Karpuram: The court is dealing with an unprecedented pendency crisis. Should the SC be more discerning about what cases it chooses to hear?

Constitution benches were pending for a long time. I would attribute a large part to the Covid phase. Constitution benches can’t be pushed beyond a point as many times other cases which are pending before several High Courts and the SC as well, have to be deferred to await the outcome of the Constitution bench’s answers.

On keeping private life away from public domain Anything which is very personal and private, I would not like to come out with it in the public domain. I’d rather keep it to myself because as a judge I need to draw the line

On the SC taking in too many matters, maybe we open the doors wider sometimes to ensure that the last man in the queue has that satisfaction, and we think that he deserves the satisfaction of the order being tested which has been passed by the court below, which could be the HC or the district court. We have a huge population. The judge to population ratio is around 20 judges to a population of10 lakh .

Vandita Mishra: Recently, a video of the Chief Justice of India and the Prime Minister praying together caused a lot of controversy in the bar as well as outside it. It raises concerns on the extent of the presence of religion in the public domain and on the separation of powers. How would you look at this?

I’ve always drawn that distinction because I feel that some things are very private and personal and should remain in the private domain. Other things in which I engage as a judge should come in the public domain and remain there. Let’s draw the distinction between religion and spirituality. The nuances are different and religion would have a different nuance, more personal. Anything which is very personal and private, I would not like to come out with it in the public domain. I’d rather keep it to myself because as a judge I need to draw the line and keep that because at the end of the day, what am I looking at? Who’s the ultimate consumer of justice? A litigant. And a litigant could be coming from various backgrounds. He or she is not concerned with what my private life is all about. He’s concerned with how I deal with a matter and how I decide a matter. The impression shouldn’t go for any reason that my view was coloured in any manner.

Justice Hima Kohli (Express photo by Abhinav Saha)

With regard to separation of powers, there is and has been a friction. It’s healthy. If there is separation of powers, it’s meant to keep the three wings insulated, and particularly the judiciary so that it remains in balance. But when it comes to aspects relating to the administration of justice, not dispensation of justice, it requires manpower, infrastructure and things for which the judiciary has to look at the executive and the legislature.

Parveen Dogra: It is being reported on how Gurmeet Ram Rahim comes out of jail just before elections and it looks like a mockery of the judicial process. Your comment?

Furlough is the prerogative of the state. It’s not to do with the court. It’s only when it is refused that the aggrieved parties come to court. So if the executive has faltered, it is for somebody to point it out to the court.

Aakash Joshi: In a lot of cases, we see post-retirement appointments, often political appointments of judges.

One cannot help but read back or speculate on motives then at the time of politically sensitive matters when the judgments were made. You can’t taint an entire body of work done by a judge, which is a time span that can run up to one or two decades, on a presumption that at the end of that tenure, something was offered to him, so she or he walks backwards and starts from the starting point to give a particular slant to the judgment. If you’re talking of the last phase, perhaps, then again it is a call of that particular judge to accept an assignment or not. But to say that there would be a slant on all that he or she has decided over a span of a couple of decades would be really carrying it a bit far.

On political appointments of retired judges You can’t taint an entire body of work done by a judge, which is a time span that can run up to one or two decades, on a presumption that at the end of the tenure he was offered something

Apurva Vishwanath: What about political posts? Like a Rajya Sabha membership or governorship?

There are demarcations. Speaking for myself, I would never look at (them). I wouldn’t go that way. Tribunals etc are involved in judicial work, which is pretty par for the course.

Aakash Joshi: What do you make of the live telecast and how has the court changed?

I think it’s the perfect thing to do in today’s day and time. We are living in the world of AI (Artificial Intelligence). So how can we insulate ourselves completely from being put on the domain for the public to see how courts function? The public doesn’t know how courts function. If they actually log in, they see how courts function. It gives them an idea of what goes on in a court. The more the sunlight, the better it is for all of us. There’s no harm in it at all.

Former Supreme Court Judge Hima Kohli (Express photo by Abhinav Saha)

There are also downsides. For that, perhaps the media needs to introspect. Out-of-context statements quoted can create some kind of misimpressions.
Apurva Vishwanath: Looking back,

do you think the way the sexual harassment complaint against former CJI Ranjan Gogoi was handled dented the judiciary’s image?

Perhaps the very fact that you’re asking this question gives an impression that there has been a dent. Otherwise, maybe, you wouldn’t be asking this question and in your question seems to be the answer.

P Vaidyanathan Iyer: Can we really take the independence of the judiciary for granted? What are the challenges ahead?

I think 75 years has done us good. We have evolved. When the Constitution is a living document, then there are judges who put life in that document, they interpret it in manners to bring it to the next level, to read into its rights that perhaps were not contemplated by the Constitution makers. Had it not evolved, many judgments would still be holding good, which have now been quashed and set aside. The institution is growing, is willing to learn from its own experience and grow further. Perhaps the anxiety is that does it continue to remain as insulated as it should, from any pulls and pressures.

That would depend on what kind of judges man those courts and I don’t use that word in a gendered sense. As long as that growth is going on well, there is a chart that shows that upward movement, we are on par.

P Vaidyanathan Iyer: You spoke about the institution being insulated from the pulls and pressures. Are there enough safeguards for that?

The safeguards, if required, are internal. There should be introspection. You’re not talking of external safeguards, you’re talking of introspection, it should come from within, it has to. If it doesn’t, then how many barriers will you create?

Those should be self-built and those should remain. As a judge, you learn from your senior colleagues on how they would conduct themselves. But I always think that isolation shouldn’t mean that you live in an ivory tower, your hands should be on the pulse of society. As judges, one can’t be cut out from reality.
Damini Nath: Should judges’ assets be declared and should they be in the public domain?

Just to tell you, the assets are declared. I think it’s more important that they are declared and kept in a sealed cover with the Chief Justice, which is a procedure. Whenever required, it is also updated.

Raj Kamal Jha: Should the government have a seat at the table in deciding who should be judges?

The government already has a role when the Intelligence Bureau reports are called for. How do we assume the government doesn’t have a role? What is an IB clearance? The input that the government gives about a candidate. Those inputs come to the Collegium. The Collegium goes through those inputs and if it has questions to ask on those IB reports, there are further interactions with the government. That interface is always there. We must make it clear that that interface is the role they have.

Raj Kamal Jha: Should the government have a veto?

They shouldn’t have a veto because within the system the Collegium has inputs from several sources, and it is after taking a well-rounded view that the Collegium takes a call.