Justice Hima Kohli, who recently demitted office as a Supreme Court judge, spent 18 years of her career as a judge at the same accommodation allotted to her as Delhi High Court judge.
In the Part II of the interview, she responds to the "anti-abortion" critique of her judgments, reveals why she refused to recognise the LGBTQIA+ community's right to marriage, and weighs in on the executive and the judiciary rubbing shoulders at religious events.
Edited excerpts follow.
DR: In the judgment where you were a part of the majority, the Supreme Court held that LGBTQIA persons do not have the right to marry. Do you think Indian society in 2024 is still not ready to accept same-sex marriage?
Justice Hima Kohli: So the fact that you are talking of 2024 would mean that it has been less than one year since we delivered the judgment, that was sometime in October 2023. These things, and that is what we felt as a majority, must come first from the society. As judges, judgments relating to your cultural leanings and routings cannot be foisted on the public. It is they who should initiate it enough for the legislature to wake up to it and legislate. And once they do it, it shows it is the will of the people. Should the courts foist its will on the people? To me, the answer will always be no.
The courts must recognise it, which we did, and then the legislature must recognise. The laws cited were not tailored for the purpose of marriage equality, and that was what the majority view was. We could not incorporate things which it (the existing law) was not tailored to deal with. The statutes were entirely on a different format.
On a personal level, I would be the first to respect those relations, but as a judge...we said there are several things the state must do to give them that comfort. But ultimately, who is to decide? It is the society. Whether they want to recognise that relationship and give it validity in law. Once they do it, why would the legislature then not recognise it? Then the courts would interpret it. It should not come from the court and then go downwards, that would not be the right way, as acceptance and resistance would be a big issue.
DR: But one of the prayers was not to direct the executive, but just to declare that there is a right to marriage for LGBTQIA persons. Why did you not agree with that?
Justice Hima Kohli: Because the statutes that were being cited to support those arguments did not cater to that, as simple as that. They were made in different circumstances to cater to a particular set of people which did not include this set, so it could not be brought in and read into like that.
DR: Recently, your verdict holding that your judicial conscience did not allow termination of a pregnancy was upheld by a CJI-led bench, but criticised as a step backwards for abortion law in India. How do you respond to that?
Justice Hima Kohli: Let us be case-centric. That was a case where the lady was not clear which way she wanted to go. It was a case where our bench, which had been constituted to hear the matter, had called in the lady, had interactions with her and her husband, so that we knew which way his wife wanted to go. There was a lot of vacillation in her mind.
A woman who is pregnant goes through a lot of emotions and feelings...sometimes she was comfortable, other times she was not. That is why we referred it to a medical committee. The second report indicated that the foetus is a living being. Then what about the right of the foetus became a question. Because that was the very last stage and the statute did not contemplate beyond 24 weeks...circumstances had to be such for us to ignore that and go forward, for reasons stated in many judgments. There were no birth defects or anything so precarious that the life of the the woman was in danger...and that is why I said that my judicial conscience does not permit it.
One has to balance the rights of the living being in the body of the mother, and the mother. Now, just as an aside, after the matter was over, I found out what happened. We had given the parents the option to give the child up for adoption, but they did not opt for it. They kept the child and they are happily bringing it up. The mother was the first one to say that we did not want the child to go away. It delighted me to know there was a baby in a safe home and with its parents.
DR: So how do you respond to the judgment being anti-abortion?
Justice Hima Kohli: In my mind, there must be checks and balances and that is why the statute has laid down conditions. How can you ignore the Act and the law of the land and go ahead with what is in your own mind? You must abide by the law, the exceptions have been drawn by the Supreme Court. We know what they are - the state of the mind of the woman, whether she has been raped, her circumstances, if she is a minor etc and maybe they can be expanded. Of course a woman has a right over her body, I will be the first one to admit it. There are cases where I have passed such orders in the High Court and we have permitted it without hesitation. But it is case-to-case and you have to see the mindset of the woman, and not of her husband or in-laws or family of the woman. But once the child crosses that rubicon, one has to be doubly cautious to see that there some things to be balanced.
DR: Do you think there was a need to overhaul the criminal laws? Do the new laws achieve the intended objective of 'un-colonialising' the justice system? What are the practical difficulties that the new laws pose to judges? Given the imminent challenges to certain provisions and the gaps in the legislation that the courts have to fill in, does it feel like a Sisyphean task?
Justice Hima Kohli: I would not say that, because Sisyphean implies that it is repetitive and no results are borne from the process. I would say it would be a big challenge for the judiciary and the lawyers and the public prosecutors first to unlearn some things and then to learn new things. It is not easy. The legislature has thrown an enactment at the courts which is a work under progress in every which way.
Many of the things which were colonial needed to be dealt with. But because it is completely overhauled, the comparisons and commonalities between the old and news laws will take a lot of time to settle. We would have spewed a lot of litigation for interpretation of the new enactments based on precedents we had based on the earlier law. So it is going to be a major challenge, for which it is going to be very important for all the judicial academies need to gear up the judges so they can upgrade themselves.
All prosecution arms and police departments need to upgrade themselves, because many of them do not know how it is working on the ground. There is a lot of overhaul that will be required. Because it is a legislation that has been thrust on us, we need to deal with it. We are so used to saying CrPC and IP that the tongue rolls when we have to say BNSS.
One of the fortunate things that happened with the BNSS was that for those inmates who have spent one-third of the time in jail (as opposed to half under the old laws) without trial, we were able to pass orders for them to be released immediately...the state judiciaries also took note and released them.
DR: But was there a need to overhaul the laws completely?
Justice Hima Kohli: Maybe not completely, just partly. Only perhaps those parts that were colonial. Perhaps only amendments to make it easier as a starting point. The executive felt otherwise and thought we should start from a clean slate. It was well-intended perhaps, but whether it works on all levels is going to be a tough question. It is going to burden courts. Aren’t we still struggling with Negotiable Instruments Act volumes? And that is just one Act. Here, it is the entire criminal jurisprudence that will go through the churner.
DR: The system of judicial appointments has been widely criticised for lack of transparency and nepotism. Do you think there needs to be a change? What is your view on the role of consultee judges?
Justice Hima Kohli: Most of the public does not know that the Collegium has one limb of opinions coming from consultee judges. Who are they? They are largely in the Supreme Court only. They are judges who are from a particular High Court and has the hands-on experience of seeing the lawyers and judges enough to know the talent there and what kind of pool is being tapped into for the Supreme Court. So when the Collegium receives the recommendations, they invariably go for them.
Like for me, I am consulted for my input for those from Telangana and Delhi, and I would not be the only one...that is the prerogative of the Collegium as to how many consultee judges they want to refer to if there are too many. That is one of the factors looked into by the Collegium, and their inputs are taken into account, which I think is imperative. But again, if that consultee judge is only one part of the process, and the Collegium has to take an overall view,
Sometimes it is good to give reasons when you decide to appoint somebody. But at other times, when you give reasons, you impinge on the privacy of another candidate seriously. This is someone who has no say in the matter, except that he or she has given consent to be considered. They may land up in a mess because it is not just him or her, it is the whole family involved in the appointment...they may face a backlash because he or she is helpless; they have no answers to give, because nobody asked them...So it is all very well to be transparent up to a point, but there has to be a line drawn after a point, where some things are left within the four walls of the Collegium instead of everything coming out in the public domain, because it damages that candidate.
DR: Many lawyers called for a reconsideration of the process of designating Senior Advocates of the Supreme Court after the latest round of designation. Do you think it needs to be reformed?
Justice Hima Kohli: Earlier, the designation system in all courts were different. It would just go to the full court, names would be circulated, and we would mostly go by secret voting. It would not be open unless the candidate was so good that they do not deserve to be put to vote. That was working. Then sometimes there were cliques and lawyers resisted it, and they said there was no transparency, and names were dropped because judges did not like some names. And that is when the committee comprising bar representatives and all that came along. The role of the full court got diluted to that extent. In the Supreme Court, it is the committee that now, as in other courts, interacts with a particular candidate, and thereafter gives its view.
I think the role of the full court should be a bit larger thereafter, and it should be in deference to the committee that works hard to interview hundreds of lawyers. It's not easy; their judicial time is eaten into...But when you haven’t seem them appear, I think it becomes important for the members of the committee to consult those judges in whose jurisdiction the candidates have appeared in...If I don't know a person, and my colleague is a taxation specialist, and he has seen that person appear, I see no harm in asking my colleague how is this candidate and what is their reputation.
It is not necessary that we know everybody, because it is such a big Bar...If a candidate does only criminal, and I am hearing only civil matters, how can I vote for or against that candidate? I would need some solid input which should not be only personal to me...objectivity should not be compromised in designations.
DR: How do you view judges participating in religious functions in the public domain? What is your take on the mingling of the executive and the judiciary on such platforms?
Justice Hima Kohli: I will speak for myself, since the question is directed towards me. Strictly speaking, judges should not wear religiosity on their sleeves in the public domain. I think faith and spirituality are very different from religion, and one must draw a distinction between the two. One can be an agnostic and still have faith in humankind and the tenets that all religions teach us. I firmly believe that we should not carry that in public domain, it is too private. It should remain within me and my four walls...it is very important that when we are brought up and brought into the system, it is humanity and our Constitution that is our religion.
Sovereign, socialist, secular, democratic republic means that everything that is in public domain must be accepted by various classes of people. And they should not have any such impression that the personal leanings of a judge would interfere in the dispensation of justice.
There are public spaces where the judiciary and the executive interact, that has to happen. We must meet the executive very often merely to carry forward the judiciary's agenda of more courts, more human resources etc that comes from them. So, you cannot just live in an isolated tower, it is not possible. There has to be an interface, otherwise the system will suffer. So when it comes to such fora, coming in a public space and meeting on any occasion like this, I do not see anything wrong. Because everybody is around you in a public space, maybe you bump into somebody, that is okay.
I have never, speaking for myself, in my private domain, permitted any such entry into or allowed anybody to enter who is not part of my immediate core family.
DR: As a judge, did you ever feel any pressure from the executive while performing your duty? Have you come across any such experiences of other judges?
Justice Hima Kohli: You are being very kind by not saying that I was tough, which everybody says! I have never been one to fall in line, or fit into a box. I have never had an occasion of anybody having the gumption to come up to me and try to influence me. When litigants try to reach out to you through somebody, I have not only made sure to recuse from the matter, but I've also made sure that it comes on the record. There is no reason for anybody to reach out to you on a personal level for a matter, we cannot permit it.
I have come across a couple of times in the High Courts, some colleague or the other who seemed to be...we do not talk work outside of the court. When we meet over lunch or tea, we do not discuss matters inside our courts, because that is between me and my bench partner and nobody else's business, including the Chief Justice...It is for that particular judge to live by his or her own leanings or thoughts...there has never been any pressure, thank the lord for that. I would have never taken it or accepted such pressure.
But in some lower courts, there could be; youngsters sometimes get overawed when they come into the judiciary. But then they grow and resist it. The very fact that we are thriving and surviving as a democracy shows that these are just aberrations.
DR: We have seen scores of cases in which the government has not been cooperative. Case in point - Justice Kaul was at his wit's end over the Centre's delay in processing judicial appointments. What does the Court do in such scenarios?
Justice Hima Kohli: It is an ongoing process. The CJI is handling that matter and some of these cases where names are stuck. It's important to keep the conversation going instead of just brushing it under the carpet. There must be answers from the Centre; if there is resistance, they have to give reasons. Sometimes there is a little resistance in putting it in public domain, that must be dealt with by the bench. It is important to have some collaboration.
It is never a cosy relationship between the judiciary and the executive, and it should never be. It is an ongoing process, onward journey that has to be dealt with from time to time....so that the names can be pushed forward as quickly as you can, because there are deadlines for some judges who are bound to demit office. By the time it is cleared, sometimes it is a dead cause, and that should be resisted.
DR: One of your judgments did away with the practice of putting caste names in the litigant information sheet. How shocked were you to find out that caste names were still being mentioned?
Justice Hima Kohli: In one word, utterly. I couldn't imagine that in an affidavit or memo of parties filed in a court of law, one needs to know more than the name, address or occupation of the litigant. It can never be accepted that caste, communities, religion etc should be in the form of any kind of document to be filed in court. It was surprisingly happening. When I checked with the Registry and the advocates-on-record, they said that the norm is whatever is filed in the courts below has to be replicated without deletions. That is why our bench decided the order has to go down to the last court of the land.
That there is absolutely no requirement of mentioning caste etc of any litigant, and wherever it was, it should be deleted. When we are talking about a secular country, what would be the reason for the court to know the community or religion of the litigant? It is not any way in the domain of a court. We are only looking a matter, and the law that is to be applied, and no more. So it was imperative for the message to go that caste, community, religious lines have no place in a court of law.
DR: While calling for minimal interference in arbitration in previous judgments, the Supreme Court recently set aside an award at the curative stage. Don't you think such decisions hold India back from becoming an international arbitration hub?
Justice Hima Kohli: This case was thrown at me at the London International Dispute Week in June, where I had a speaking assignment. The saving grace in that case was that it was a domestic arbitration and did not have international ramifications. Therefore, their anxiety that it could translate into something like an international award, was assuaged. That part was difficult for me to negotiate! What weighed with the bench in that case is in public domain. Some damage control needs to be done on the international platform to assure them that our courts respect awards and ordinarily do not interfere. Knowing that arbitration is a forum of choice for the parties, it is not the job of the courts to foist its own view.
DR: How do you think the imminent entry of UK law firms and lawyers will affect the dispute resolution field in India?
Justice Hima Kohli: I think we will get bit of international flavour... There are norms that the BCI has set up...it is a way forward. We are now living in a global village. We cannot cut ourselves away beyond a point. The fear in the minds of Indian lawyers and firms that our work will be completely taken over - there has to be a balance between both. The professionalism that comes in will give us a boost and impetus to improve ourselves as lawyers...There should be an exchange in that Indian lawyers should also have an equal opportunity to blossom...we need to deal with it and explain it to lawyers. You have to jump into the mainstream and make a mark for yourself. We have the stalwarts, who are just a handful in our profession. We need a whole lot of lawyers to be seen on international platforms. There are a few hiccups, but a work in progress is better than no work at all.
DR: You said at a conference a few years ago - "It is a lonely life as a judge. It is like goldfish in a bowl." Could you elaborate on that? Is a part of you relieved that it's over?
Justice Hima Kohli: First, I am grateful for having traversed the whole path. It was a great learning experience. I was not complaining when I said that; I went that way because I wanted to....The only thing is that somebody who comes into that system should know that if you are a pure people's person, you cannot survive unless you are very strong mentally, you have a lot of resilience and core family backup. It is a lonely existence as a judge.
We are people's persons as lawyers, we meet everyone freely. You do not have to think twice when someone is meeting you...But when you become a judge you have to step back from all of it. You are wearing the mantle of somebody who should be seen and perceived to be uninfluenced by people around you...and that means stepping back from others from those who may end up in your court as a litigant. You must know where to draw the line. From my experience, it is not that judges lead a completely secluded life. There are functions where we meet at conferences, social functions etc. That doesn't compromise a judge...You have to be strong and determined to lead that life and accept it...
Unfortunately, the family doesn't have a choice. That is a fallout, because when people reach out to you through them, they also have to be equally cautious. that they build a wall around and keep you protected from elements who need not come into immediate contact with you. So the family has an equal responsibility to discharge, which we tend to forget.
DR: For a lot of lawyers who are social and active on social media, that might be difficult.
Justice Hima Kohli: Yes, it will be thrown at them at some stage. For some names who have been considered for judgeship, question marks have been raised because they given views online.
But we are all evolving as judges and humans. One statement alone cannot be held against you, it must be consistent over a particular period. But by and large, if it is a known political leaning and it can influence a person as judge in a matter before her, then one must be cautious. Because at the end of the day, neutrality is the first requirement of a judge. Objectivity and neutrality being compromised can affect a judge.
DR: Will you be accepting any post-retirement position?
Justice Hima Kohli: Nothing has come my way as of now. If something does, I'll think about, if am able to really contribute in some way. I am happy to say that having stepped out of office - it's been two weeks - it is nice to be reached out to by lawyers and others for arbitrations and opinions. It is a trickle. It feels that you have a role to play and stay relevant in the system.
I am only open to it only if it is something very special coming my way. But I am not hankering for anything at this point, nobody has reached out.