Sanjay Raman Sinha (SRS): How do you see your tenure in the judiciary, both as a judge and an advocate? How fruitful it has been? Is there something you would have liked to have done, especially when so many women issues are still coming up?
Justice Hima Kohli (JHK): The journey was quite long, 18 years as a judge and 22 years as an advocate. In the days of advocacy, I had one set of challenges, and when I became a judge, I faced different set of challenges. As a woman advocate, I faced problems which were peculiar to the community. Women lawyers have their own setbacks because they ordinarily come from a protected background. They don’t have that much interaction on public platforms so they have to change their ways of portraying themselves by being confident and bold so that clients can engage them in matters. The client should have confidence in the advocate. Women advocate should be able to get to argue important cases to demonstrate their mettle and seriousness.
SRS: Women in the legal profession often complain that clients discriminate and they get soft cases (like family, divorce, etc.). They say fees are less as compared to that of male advocates. Mentorship is difficult. What has been your experience?
JHK: Yes, this is ground reality and it lies with the individual to change the ground reality. Such cases are treated “low hanging fruits”, sometimes easy to resolve. But when such cases do come, one still has to do all the ground work needed to show one’s worth, so that on the next occasion one can get more difficult and significant cases. If important cases invariably go to experienced advocates, then how will the youngsters learn?
SRS: Let us talk about your personal career in the same context. What was your experience during initial days then when you became judge? What is your struggle story?
JHK: The struggle started from the very beginning, but when I joined the profession, I never thought it would be so tough. When I started studying law, my family wanted me to become a professor or a lecturer because it is considered as a secure job. The timings are fixed and the job is respectable. Since many of my contemporaries from college were trying to crack the Civil Services exam, I also thought of giving it a try. But later on, I realized that it was not meant for me and if I took it up, I might end up resigning. I wanted to pursue advocacy, but didn’t have any exposure. I had visited the High Court barely once or twice. Being a first-generation lawyer, entry into the legal profession seemed like a maze. However, I made up my mind and wholeheartedly took up legal studies. My career started from the chamber of Justice Sunanda Bhandare. At that time, she was a leading practitioner in the Supreme Court. Later on, she was offered judgeship in the High Court. After she was elevated, I associated myself with her husband, Murli Bhandare, Senior Advocate. However, after spending a couple of months in the Supreme Court, I realized that is not the right place for a raw advocate like me who would not get a chance to appear in court because the stakes in the cases are very high and a client would prefer to go in for an experienced advocate. I then turned to the High Court. There, the working environment was good and some women lawyers were active. I associated with YK Sabharwal, who went on to become the chief justice of India. I gained practical knowledge there, but within one year, he was also elevated as a judge of the Delhi High Court. At his suggestion, I associated with the chamber of Vijendra Jain, but after some time, he too got elevated. It was then that I decided to work independently and my real journey in the litigation career began.
SRS: You gave very progressive and landmark verdicts on many women’s issues. There must have been male judges on the bench with you. Was there sometimes a conflict of ideas? Did you find male judges falling short in their understanding of women’s sensitivities and the life situation?
JHK: As a judge, I have never distinguished between genders in cases. You will be surprised to learn that some male judges are more sensitive than their female counterparts. In several matters, their approach has been quite sympathetic to women causes. Sometimes, there has been a divergence of viewpoints with even women colleagues on the bench, not just the male colleagues. But, there is a two-way communication and a fair and equitous common ground is often arrived at.
SRS: Of late, judges from regional courts have been in controversy for their gender-biased or misogynistic remarks. Do you think that there is a need for proper gender sensitization for judicial personnel at all levels, and also in the law curriculum as well? Is there any system in place for such a gender sensitization exercise?
JHK: Incidents of casual comments by judges like the ones which have been made in recent times while sitting on the dais, is unacceptable and I am of the firm view that it should not happen. Such comments go to show how retrograde the views are. When new judges are appointed in the district courts after clearing the examinations, they are not only given training in the judicial academy, they also participate in lectures given by senior judges which is a part of their orientation sessions. The trainers brief them on courtroom conduct. They are given a chance to observe the work of senior judges first-hand and gain exposure as to the manner the Court is conducted and how to express themselves. Lawyers who are elevated to the bench are also imparted training at the National Judicial Academy at Bhopal. When one sits on the dais, one is not just a person. You are holding the position of a judge. You have to remind yourselves of this constantly and you have to abandon all prejudices and take up the role of a judge who is completely independent and unbiased. This training teaches one to focus on the case without indulging in any general or frivolous comments. A judge must maintain the dignity of the court. If this doesn’t happen, then the whole judiciary is defamed on account of a stray irresponsible comment.
SRS: You were the chairperson of the Supreme Court’s Gender Sensitisation and Internal Complaints Committee. Can you detail the Committee’s work and how fruitful was your tenure?
JHK: It is a matter of chance that I headed the Internal Complaints Committee, not only in the Supreme Court, but also in the Delhi High Court. The rule is that only a woman is to head the Internal Committee. In the Supreme Court, I was given this assignment after Justice Indira Banerjee demitted office as I was the next senior most woman judge. The Committee has organized several training programmes and workshops. We revamped the website of the Supreme Court so that a complaint can be lodged easily. The page on the website was made more visible and accessible so that a victim could file a complaint virtually as well. We examine a complaint and decide on the further course of action. The first thing is to determine the nature of the complaint. If it is an advocate versus advocate type of complaint, it has to be dealt with by the Bar Council; if it is an employee of the Court versus advocate, it remains with us; if it is an employee versus employee, it will also come to us. Much depends on who the complainant is and who is the aggressor.
The second aspect is the on-going training programmes and workshops. We invite professionals from outside, especially those who are trained in this field and seek their advise and experience to address cases of sexual harassment at the workplace. In the workshops, professionals and trainers interact with the audience. The target audience could be employees of different cadres from the Registry, members of the Supreme Court Bar Association, members of Supreme Court Advocates-On-Record Association, canteen staff, security officers, fixed-term employees, etc.
A special invitee is also appointed by the chief justice of India. We all work together, not only to expose the lawyers and the workforce to the training, but also explain to them a variety of aspects related to sexual harassment at the workplace. For example, how to deal with the juniors and lady colleagues. We do these training for staff as well.
In the Registry, there is a hierarchy of staff. There are also clerical staff and other staff attached to lawyers. Even the staff in our home offices is imparted training. Those who are deputed by the police to man the gates of the Supreme Court complex are also sensitized. In these training sessions, the chief justice and other judges are invited to address the gathering. Apart from that, we have made efforts to light up poorly-lit spots in the court premises that ladies frequent, increased the number of streetlights in and around the court vicinity. We have also got the foliage of heavy trees pruned for the streetlights to filter in. These are small details on which we have worked collectively. The Committee is always available and anyone can file a complaint virtually 24×7. Whenever complaints of sexual harassment have been received, we have taken appropriate action.
SRS: With reference to some controversial remarks by a High Court judge, the CJI had stressed on the need for evolving a blueprint for judicial process and propriety. Four apex court senior judges are deliberating on the issue. How do you see the problem? There has been a previous attempt to codify judicial ethics when in 1997 the Restatement of Values of Judicial Life document was prepared. This was a guideline for the judges. So, do we need to widen the scope? How to increase compliance with the norms of judicial propriety?
JHK: A lot has changed since 1997. The role of the media has increased tremendously. Arguments that were advanced and heard within the four walls of the court are now freely reported and known outside. The role and reach of the social media has dramatically increased. Live streaming of court proceedings has taken place. There is already a code of conduct known as the Bangalore Principles of Judicial Conduct that is in place. If the chief justice has constituted a committee to fine-tune it, then it is necessary to take it forward. Judges indulging in loose comments, affect the image of entire judicial institution. The old adage, one bad fish spoils the whole pond applies. Comments of such a nature does affect the judiciary’s image adversely.
SRS: You talked about live streaming and social media. With these the public glare has increased substantially. Judicial proceedings and judges’ observations make headlines everyday. So, naturally media pressure has increased on the judges. There is often “media trial” as well. You must have felt the media pressure, too. How did you handle it and how do the judges react?
JHK: Well, I was never on the social media. Even today, after laying down office, I am not on social media. To keep one’s balance and objectivity, you need some solitude. In that space, you can think and reflect. If your intention is right, your approach will be right.
By and large, I think it is better for judges not to be too much into the media. Yet, you can never be completely isolated. We all live in this world. We have to perform our duties. We have to meet colleagues, lawyers, friends and acquaintances. We get to speak to them. We have to stay in touch with the reality all around us. But that should not affect our work. This distancing depends on you. How much pressure do you let yourself come under. So, one must keep oneself strong and in balance.
SRS: You gave a historical verdict on the PoSH Act. Recently, there was a case related to the PoSH Act in the Supreme Court. The Court said that the LGBT+ community does not fall within the ambit of the PoSH Act. But the fact is that the community does face sexual harassment. Should there be some law or mechanism to cater to their problems as well?
JHK: Just to share with you, the Gender Sensitization Committee was of the view that the LGBTQ+ community should also be included. But strictly speaking, the focus of the Committee constituted under the PoSH Act is on women alone. So, when the Supreme Court judgment came, our Committee forwarded it to the chief justice of India for appropriate orders. The idea was to take the matter further and make the Committee more broad-based, so that those who are in the LGBTQ+ category can also get covered under the Committee.
SRS: The face-off between the judiciary and the government on judges’ appointment issue is a recurring problem. What is your take on it? A SOP or Memorandum of Procedure of appointment of High Court judges is already there. Why is it not functional? Why is there a conflict?
JHK: To my mind, there should always be some friction between the Judiciary and the Executive. It bodes well for the democracy. However, one cannot treat it as a “fight”, it is a friction. Why is it friction? There are three branches of the government in our country: Executive, Legislature and Judiciary. They cannot be on the same page on every issue. There are differences and there should be differences, because each one is catering to a different facet of the Constitution. As judges, we swear by the Constitution; we treat it as our religion. We are required to uphold the constitutional principles and take them forward. The Legislature has its own perspective. The Executive too has its own mandate. That is why there is friction. And it has always been there. But we should not take it to the level of a war. This should not be a war zone. We have to continue the discussion, both backroom discussion and courtroom interaction should happen. The public should also know what is happening. There ought to be transparency in the relationship. As long as the discussion continues on pending issues, there is no problem, even if there is some resultant friction. However, there should not be any politics on appointments. The system has wheels within wheels and the wheels have spokes. The spokes within the wheels should work in harmony and not at cross purposes so that the country and its governance functions properly.
SRS: Questions have been raised on the transparency of the Collegium system as well. Can’t the judges appointment deliberations be made public? This will curtail allegations of opacity.
JHK: Transparency is maintained in the Collegium deliberations, as much as is possible. Whenever appointments are made, reasons have been given for the selection of the candidate. These reasons are factored in the Collegium’s deliberations on the appointment of judges. Collegium recommendations are published and uploaded on the website of the Supreme Court.
But details of every discussion or debate can’t be made public as it can work against the interest of the concerned candidate. What if the selection is not made? He or she has a life and a career. It may get adversely impacted. Clients may stop approaching the advocate for work. We are not here to demolish their careers. Let us not forget that input does come from the government, Intelligence Bureau clearances have to be given. After receiving these inputs, the file moves forward. So, it is the government that gives those inputs, and one can’t bring all the information received in public domain, though, they are taken into consideration by the Collegium. The interaction between the Collegium and the government is a healthy process. The emphasis must be on adhering to the timelines to complete the process.
SRS: On matters of judicial overreach, the judiciary has often been both commended and criticized. There is an underlying issue of complete justice or public good versus separation of powers. Is the judiciary crossing the Laxman Rekha quite often?
JHK: Yes, so the question to pose is: how far and no further? If we look at cases related to say pollution and environment, courts have given landmark judgments and directed the government to lay down policies to address issues. In early days, the environmental laws had not evolved. It was the Supreme Court that had set the ball rolling. We have cases where series of ongoing orders have been passed over a long period of time, what is called the writ of continuing mandamus. Whether it was a case of forest conservation which is still continuing since the 1980’s or protection of coastal regions or hilly terrain, series of orders have been passed to protect the areas.
When to preserve the environment, the Supreme Court strongly feels that public interest powers vested in it under Article 32 of the Constitution of India need to be exercised, then it does so. Yes, I agree that there has to be a line drawn somewhere. Many a time, the government protests against the views expressed by Courts in judgments and Parliament brings in a law to overturn a judgement, but that’s all right. Courts do not question it because members of the Legislature are representatives of public and they have the mandate of the public to govern the country.
SRS: There is a never-ending uptick in the pendency rate and the judge-to-people ratio is significantly high. This leads to a high work pressure on judges. What are the support systems available to a judge to handle such a voluminous caseload and how you have been coping with it?
JHK: Court holidays are often a point of controversy. Public should be made aware that our work in court is not a 9 to 5 one. We may sit in court at 10.30 am in the morning and rise at 4.00-4.30 pm, but we have to study all the case files the previous evening and through the night. That means that when we return at home by 4.30-5.00 pm, we hardly get any time to rest. After a cup of tea, we immediately sit down to study the files of the next day. Even during the lunch recess, we are on a table going through urgent orders. This is the kind of pressure under which we work, day in day out. In the Supreme Court, we have to deal with around 60 to 80 cases per day which have to be read before we sit in court, and this is what we are required to do from 4.30 pm to the next morning. We barely have time to have a meal and speak to the family for a few minutes, that’s it. In the mornings too, we have to read the leftover files. The pressure is immense. Our support system are the law clerks and our personal staff who work with us 24×7. The law clerks read the files and assist us by preparing case briefs. Summer vacations, October vacations and Winter vacations are meant for working on longer and complicated judgements. Work-life balance is an imbalance for the judge. We have very little time to exercise or socialize. Judges are also appointed to several committees by the chief justice. Ultimately, it is our family that is our solid support system, the silent sufferers.
SRS: One question that is always on the minds of people is that how much political pressure is on the judges. What has been your experience?
JHK: God has been kind that I have not experienced that kind of political pressure. Nobody has tried to reach out to me outside the court. When a couple of times someone tried to influence me, I recused and transferred that case from my court and also wrote in the order that I was approached. At the end of the day, it is for the individual to take a call as to whether to come under the pressure or not.
SRS: The chief justice has broken many protocols set for the judges. He makes media appearances and when there was Ganesh Puja at his residence, the prime minister was invited. This had raised many eyebrows. How do you see this trend?
JHK: I am speaking for myself while answering this question. As far as the issue of a sitting judge giving interviews to the media is concerned, my take is that if the issue is about the administrative aspects related to courts or promoting a justice-related cause, like the National Legal Services Authority, Juvenile Justice Courts, their outreach, PoSH, POCSO and other laws, etc., and explaining judicial initiatives, then it is fine. A sitting judge can and should give such interviews as it is for an institutional cause. It is our duty to promote and publicize positive judicial initiatives. I don’t think there is anything wrong with those kind of interfaces with the press or the media.
However, when it comes to personal issues and personal preferences, I have always maintained that distinction. I feel that my personal beliefs or my religious leanings should remain private. If I am a sitting judge, then any act which makes the litigant question my neutrality, should be avoided. The litigant’s faith in the judicial system should not be shaken due to my acts. The litigant should believe that the judge is objective. This is my personal view.
SRS: You started your career as a first-generation lawyer and you had said that your first office was a car boot. What is your message for today’s first-generation lawyers?
JHK: My message is that there is no substitute for hard work. First thing, no matter how much you study or how hard you work, you must realize that the career you have chosen is not a 9 to 5 job. When you get into serious practice, you will have no time. You may be called by a client at any time of the day. Secondly, when you enter the legal profession, your aim should not be just to earn money. If you keep working hard, money will come automatically. Always do justice to your case. When we are judges, we try to do justice to the matter at hand. When you are lawyers, you are doing justice to your client by presenting his/her case in the best possible manner. If you are sincere and fair, the fees will follow. There are some cases which you should also do because the litigant cannot afford to pay the fees. Yes, you have to do pro bono work as a pay back to the society.
We always say that a lawyer is the face of the court because he/she is the first interface of the litigant with the judicial system. As a community, we owe it to the entire country that we should do something which is good for the society. It is a guarantee that if you do good, it will come back to you manifold. I remember some of my clients in old Delhi, who did not have money for the fees, used to pay me in kind. There was a paan seller who used to tie the fees in the leaves of the paan and I used to happily accept it. When he had some money, he would pay my fees. I also remember a young lady who used to iron clothes in Chandni Chowk. She couldn’t afford my fees. So, she used to offer to wash, starch and iron my cotton sarees that I wore to court. My message is that do not let anyone leave your door empty-handed.
SRS: At the time of your retirement, you had said that it is time for—re-attirement. Can you elaborate on it? And what are your future plans?
JHK: Re-attirement does not mean that I step out of the uniform and wear civilian clothes. Physically, re-attiring may mean that I will now resume wearing coloured clothes. My wardrobe will change when I take off my whites and blacks and wear something bright. Re-attirement means mentally reconditioning myself. Mentally re-attiring means getting out of the mode of a judge and getting into something new and interesting. It is not necessary that we must give up what we have been doing. So, re-attiring also means continuing to engage in the field of law and be paid a fee which commensurates with the work till recently, I was doing for decades as a service. I am a trained mediator and will do arbitration and mediation work. I’d also like to address law students and share my knowledge and experience with them.
My retirement means that I will spend some more time with my family and revert back to my long-neglected hobbies. I will get close to nature and travel around. My sister is fond of gardening and plants. I used to follow her like an understudy. I might take up gardening as a relaxation. These are things which keep you grounded and connected with mother Earth. I used to write poetry which has completely taken the back seat. I may revive poetry writing. I have now got a chance to live for myself. So, these are also things which will be a part of my re-attirement.