In that case, Justice Asha held that the right to access the internet is a fundamental right forming part of the right to freedom of speech and expression [Article 19(1)(a)], the right to life (Article 21) and the right to education (Article 21A). It was celebrated globally for the momentum it provided to the efforts at freeing up social exchanges, easing internet shut-downs and breaking down gender stereotypes.
This conversation with Justice Asha, attempts to exploring her early career, passion for law, the causes she finds important, and the factors that have gone into making her judgments what they are.
The legacy of this famously polite and soft-spoken judge lies in her bold endeavours at pioneering the march of law forward.
In Fahima Shirin’s case, a girl student at Sree Narayana Guru College, Kozhikode challenged the ban on use of mobile phones at the women’s hostel from 6 pm to 10 pm every day. The Court quashed the ban as being unconstitutional.
Before considering the legality of the ban itself, the Court made painstaking efforts to locate the duty of the college to provide hostel facilities in the applicable statutes of the University of Calicut (to which the college was affiliated).
“I was a hostel-resident myself when I first came to Ernakulam in 1985 to practice at the High Court," Justice Asha said, remembering the changes this shift brought to her career.
Earlier, when Justice Asha commenced her practice in 1983, she joined the chambers of renowned lawyer Advocate KR Thampan at Irinjalakkuda in Thrissur district.
Even though Justice Asha hailed from Thrissur, she failed to find an opening in law offices in the district.
“I didn’t have any relatives or mentors in the field of law. No law offices in Thrissur would take on women associates without being recommended by their kith or kin. I managed to secure this opportunity to practice under Advocate Thampan at Irinjalakkuda through a friend of mine,” she recounted.
Was this experience fun?
“Not quite. To arrive at the office at 8 am, I had to catch the first bus to Irinjalakkuda at 7:15 am, after a seven-minute walk to the bus-stop. By the time I reached, all the male associates would have already arrived and settled at their desks. In the evening, the long commute meant that I had to catch the 4:45 bus so I could be home before it got dark. I missed out on all the discussions with the senior (Advocate Thampan) that took place in the evenings. I had to wait for occasions where any of the four associates who usually handled appearances before the courts went out of town so that I could appear in a matter myself.”
Justice Asha’s account, not surprisingly, is reminiscent of the struggles of another woman judge, Ruth Bader Ginsburg, who died in office as a judge of the United States Supreme Court.
As a fresh woman graduate in the late 1950s, Ginsburg found it difficult to break into New York’s law firms or Supreme Court clerkships even though she had graduated top of her class.
Ginsburg was only the second woman to be nominated to the United States Supreme Court at the time of her elevation in 1993.
Justice Asha’s passion for law was carefully nurtured through the years and was not a function of her upbringing. She had not even planned on studying law in the first place.
Prior to joining Government Law College, Ernakulam, she had joined Victoria College, Palakkad for a Master’s degree in Chemistry. It was when classes were indefinitely delayed that she considered a shift in careers.
In our conversation, Justice Asha recalled that she would tirelessly read issues of Kerala Law Times (KLT) during her bus commute to advocate Thampan’s office. I was surprised that a fresh law graduate would subscribe to a law journal out of her own funds, leave alone taking the pain to read them on a moving bus.
“Someone suggested reading KLT at our enrolment,” she recalled.
In Fahima Shirin’s case, Justice Asha noted:
“It is for each of the students to decide with self-confidence and self-determination that she would not misuse it and that she would use [mobile phone] only for improving her quality of education” and that “the manner in which as well as the time during which each person can study well, vary from person to person.”
Her passion and hard work paid dividends when she joined the offices of Senior Advocate MR Rajendran Nair in 1985.
Now a resident of a hostel for working women, it became possible for her to fully commit herself to the practice of law. As the Kochi bench of the Central Administrative Tribunal had commenced functioning, Justice Asha was able to handle a wide array of service matters before the tribunal. Her responsibilities multiplied when her senior took office as a Senior Government Pleader.
Justice Asha found equal joy in both drafting the pleadings and arguing matters before the bench. It was not her habit to sit on a new brief. Her productivity was immense as she churned out drafts in quick succession.
“My colleagues would ask if I was making dosas,” she recalled with a smile.
From 1996 to 2001, she served as a Senior Government Pleader. She continued to handle service matters and represented the government before several benches.
The first of these were Benches of Justice KA Abdul Gafoor (who passed away in 2012) and Justice CS Rajan.
“Justice Gafoor was known for his temperament while Justice Rajan was known for his mild manners. I believe I handled both Courts well,” said Justice Asha, hinting that a lawyer's mastery over her briefs is the only way to be truly of value to a judge.
During her tenure as Senior Government Pleader, the last judge to handle the roster of service matters was Justice Kurian Joseph, who later became Chief Justice of the High Court of Himachal Pradesh (2010) and then a judge of the Supreme Court (2013).
Taking advantage of her income as a government pleader, Justice Asha had availed a home loan and purchased a house in Kochi.
After her tenure expired, she considered two options - returning to her former office or joining another office.
However, Justice Kurian Joseph persuaded her to set up an independent practice.
“I had my worries about paying up the loan. However, when you become an independent practitioner, the recognition you receive as a lawyer increases multifold.”
Her work primarily focused on service law.
“While it is important that women lawyers consider this move in their career, it is even more important that they learn to demand adequate remuneration for their services. Service of a lawyer is neither less professional, nor less demanding only because it is a woman who is providing it.”
Even though Justice Asha’s name was considered for elevation as a judge of the High Court by the High Court collegium in 2009, the proposal did not reach the Supreme Court Collegium. Her name was again considered and recommended in 2014.
As she was elevated, she joined four of her classmates from Government Law College, Ernakulam - Justice VK Mohanan, Justice PR Ramachandra Menon, Justice CK Abdul Rahim and Justice AM Shafique.
They were later joined by yet another classmate, Justice B Sudheendrakumar, who retired from office the very same day Justice Asha did.
In her farewell speech, Justice Asha highlighted all three women lawyers were elevated from the Bar in the history of High Court of Kerala spanning 64 years.
The late Justice KK Usha was the first woman to be so recognized (who served as a judge of the High Court during 1991–2001 and later as its Chief Justice during 2000-2001). Justice Asha was the second, after a span of 23 years.
Shortly thereafter, she was joined by Justice Anu Sivaraman. Justice Asha’s observation that “erudite and competent young women lawyers, dedicated to the profession, are available in abundance in the Bar” resonates with the early days of her own career.
In Supreme Court Advocates-on-Record Association v. Union of India (popularly known as the NJAC case), the opinion authored by Justice JS Khehar referred to the observations of Justice Yvonne Mokgoro, a former judge of the Constitutional Court of South Africa:
“In a society such as ours, where patriarchy is so deeply entrenched, affecting adversely the everyday lives of so many women, including women in the law, the strategic value of women’s participation on the Bench and positions of power and authority should not be underestimated.”
In the context of this observation, I asked Justice Asha if she believed women judges have any additional responsibility to uphold the cause of gender equality. She answered in the negative.
“Men are just as capable. However, women need more representation on the bench because they deserve equal recognition for their calibre and industry in the practice of law,” she said.
A strong commitment to constitutional ideals provides a solid foundation for Justice Asha’s judgments favouring disadvantaged sections. Her judgment in Kochammini Thampuran v. State of Kerala begins with a quote from Denning’s work ‘Due Process of Law’ (1979):
“A woman feels as keenly, thinks as clearly, as a man. She in her sphere does work as useful as man does in his. She has as much right to her freedom -- to develop her personality to the full – as a man.”
While upholding the rights of women members of the erstwhile royal family to participate in the administration of palace properties in this case, she placed reliance on Article 51A(e) of the Constitution of India that requires the State to renounce practices that are derogatory to the dignity of women.
She located a positive duty on part of the State to do away with discriminatory provisions, even in the absence of any representation from the aggrieved women.
In upholding the Government of Kerala’s directives to aided educational institutions to reserve a specified quota for Persons With Disabilities in admission, in the case of Renjith v. State of Kerala, Justice Asha invoked Article 41 of the Constitution of India that required the State to secure right to work to those in disablement.
She had also pushed for an expansive application of provisions relating to maternity benefits.
When asked if she found it difficult to remain impartial when causes dear to her are at stake, she said:
“When in doubt, one might have to appeal to her own sense of right of wrong.”
She added with emphasis: “Only when in doubt.”
It is Justice Asha’s unrelenting effort to locate an answer in contextual interpretation of law and not any subjective sense of justice that separates her judgments from her persona and makes them trusted precedents.
“I enjoyed hearing the ‘miscellaneous’ matters. It presented a wide variety of issues and challenges,” Justice Asha said of her time at the bench hearing writ petitions whose subject-matters were not classified under other categories.
Her ability to separate questions of law from political questions and to find their answers in impeccable legal reasoning was noted. In Secretary, Kerala Legislative Assembly v. Election Commission of India she gave directions to the Election Commission of India to hold elections to three Rajya Sabha seats from Kerala as per its original schedule before another electorate came into existence on May 2, 2020 after elections to Kerala Legislative Assembly.
She also had to navigate tough questions pertaining to medical termination of pregnancies, including when minor victims of rape were involved. In a widely reported litigation, a number of postgraduate students of a self-financed medical college had approached the High Court seeking directions to the management to commence the course.
When the management would not comply with her interim orders, Justice Asha issued warrants to arrest those in charge. On their appearance, they were arrested and released on bail. The case was closed and the bail bonds were cancelled only after the college commenced functioning.
However, Justice Asha is vividly conscious of where the role of the Court ends and that of society begins. When I asked her if her judgment in Fahima Shirin’s case provided a legal foundation for the State’s obligation to bridge the increasingly prominent digital-divide, she said “that’s up to you all”.
Surya Binoy is a lawyer practicing before the High Court of Kerala.
Disclosure: Binoy held vakalat in the Fahima Shirin case.