A call from the High Court is a big thing, whoever and wherever one is in life. Especially when you are a 25-year-old Magistrate, and it is your parent High Court. It fills you with excitement and dread.
One late afternoon, during my stint as a Magistrate at the Dwarka Courts, I got a call. I had just finished the day’s proceedings and was making corrections to some order sheets when the landline rang, startling me in the way that landlines often do.
It was someone from the office of Justice Gita Mittal summoning me for a meeting with her. The agenda wasn’t discussed. “Damn!” I thought. This has to be about that judgment which I’d written; the one where I wasn’t totally convinced if my appreciation of evidence was correct but went ahead with it regardless. Or was it those unconventional community service orders, or the arguably unduly lenient approach to offenders under the Railway Protection Act? ‘Chickens coming back home to roost!’ I thought, on my way to the High Court. I reached there and was led into a graceful chamber. Sitting at the very edge of my seat, I kept straightening the knot of my tie, as if that would help me unknot the problem that I had possibly got myself into.
But all these thoughts vanished the moment Justice Mittal looked up from her papers. Boundless energy and compassion radiated from her. As it turned out, the meeting was in connection with a reference (under Section 395 of the CrPC) that I had the occasion to make on a legal question that, in my humble opinion, needed clarity. This reference was marked to a Division Bench headed by Justice Mittal. She was generous in her praise for the effort, and the free-wheeling conversation went on from the reference, to trial court judging, family, and the books that both of us were reading. She was extremely warm and genuinely interested in who I was, and, in general, in the challenges that trial court judges faced and the ways and means by which things could be made better.
She had the calm self-assurance of someone who had made it all on her own and broken many a glass ceiling. She was also possessed of energy which was boundless and contagious. But what struck one the most was her compassion and sensitivity, which radiated from her and lightened up whatever and whoever was around her. You could see how her heart rankled at each injustice and how she was always trying to come up with solutions to make justice accessible, courts more humane, and relevant, down to the last woman in the line.
Justice Mittal recently retired as Chief Justice of the High Court of Jammu & Kashmir after an extraordinary judicial career. This column is a tribute to her extraordinary career at the Bench and some path-breaking judgments delivered by her. Given the sheer number and diversity of judgments that Justice Mittal has delivered, I would, at best, be touching only the tip of the iceberg.
To start at the start, a broad look at her judgments reveals at once that Justice Gita Mittal’s judicial philosophy combined academic rigour (and fidelity to statute/the rule of law) and the need to make law and justice accessible, fairer and, most importantly, coincide. Her sensitivity to the human element and the underlying life story in each case, is palpable.
Her judgment in the 1984 riots related cases is a great starting point. Here, the Court was faced with a situation of glaring misses in the collection of evidence and blatant attempts to shield the powerful from accountability. Such a trial was a travesty of justice and disproportionately affected Sikh widows, who never got the justice they deserved.
The next question that confronted the Court was: How is one supposed to dig up the past and fix responsibility for what transpired three decades back? One way of retrieving faith in the system for the victims was directing the State to pay compensation to the victims. In an attempt to do justice, and to ensure that there were consequences for serious human rights violations, Justice Mittal, in Court on Its Own Motion v. Vidyanand, ordered re-trials in as many as five cases relating to the 1984 anti-Sikh riots. Justice Mittal noted,
“Perhaps had these terrible offences in 1984 been punished and the offenders brought to book, the history of crime in this country, may have been different. We are of the view that if we fail to take action even now, we would be miserably failing in our constitutional duty as well as in discharging the judicial function.”
In Delhi High Court Bar Association v. Govt. of NCT of Delhi, the question of access to justice was once again in issue and the Court, led by Justice Mittal, rose to the occasion. The Kafkaesque amendments to the Court Fee Act, which increased the court fee by more than 10%, and in certain instances to more than 200 to 400 times, were under challenge. With a vast part of the population already marginalized and totally excluded from justice, this amendment could turn potentially justice into a commodity; a commodity to which only the rich and the privileged had access.
In rejecting the marketplace analogy, the Court struck down the said amendments as a gross violation and an egregious denial of the right to justice. Terming litigants as “consumers of justice” and Court fee as the “price of this service” was rightly taken to be a crude extension of the free-market principles to justice; an extension that our Constitution did not permit.
Justice Mittal has also pushed the frontiers of law by creative and sensitive judicial interpretation in many cases. On multiple occasions, she favoured an interpretation that is alive to the social context and aligned with the ideals of our Constitution. For instance, in Court on its own Motion v. State of Jammu and Kashmir, the Court dealt with the phenomena of, what the International Association of Women Judges terms, “Sextortion”. An offence that combines the worst of two things - illicit sexual advances and extortion.
Victims of these offences, who often come from the most disenfranchised of backgrounds, were sexually exploited in the garb of providing employment. The Court held that these cases need to be dealt with properly. While doing so, the Court recognized the reality that, simply by virtue of being a woman, a victim is often put under great pressure to establish sexual relationships with an accused, who is in a position of authority. The legislative vacuum in dealing with this situation amounts to a total barrier to prosecution and women’s access to justice. Drawing from the international best practices, the Court (Justice Mittal writing the opinion) directed consideration on this issue. As a result of the Court order, the Ranbir Penal Code was duly (and promptly) amended by the State including, within the Code, the offence of sextortion.
One of the decisions that is testament to Justice Mittal’s sensitivity for the poor is the case of Suhail Rashid Bhat v. State of Jammu and Kashmir. Here, the impugned law, Jammu and Kashmir Prevention of Beggary Act, 1960, in its colonial and arbitrary sweep, criminalized begging. The focus of the law seemed to be directed towards beggars and not begging. The Court observed that laws such as these are totally divorced from reality and the structural reasons that compel people to beg. Lack of education, poverty, homelessness and isolation, all contribute to such a practice. In most cases, it is not a product of free-will but a circumstantial necessity.
Punishing a beggar, in such circumstances, is akin to telling the poor person that the State will now prosecute her because she told people about her plight and secured a meal for herself; a meal which the State could not bring to them. The Constitution wouldn’t permit that – the Court held; especially when we live, as Justice Krishna Iyer calls it, in the land of Daridra Narayana. Upholding the law would have been a gross misapplication of criminal law and Constitutional principles alike, and the Court rightly struck down the draconian/colonial law.
Justice Mittal has also done substantial work to make our courts more victim-friendly. In Virender Singh v. State, she had the opportunity to emphasize the need for creating a comfortable environment for child victims and witnesses. The facts of the case were most unfortunate; a child in third standard was a victim of sexual abuse. The Court here recognized the trauma that a victim has to face in recounting the details of the offence, in a room full of strangers, and in a courtroom which is extremely daunting and intimidating.
Here, the Court drew strength from the earlier judgments of the Supreme Court in culling out and streamlining the guidelines for investigation and examination victims of sexual offences. These guidelines were wide-ranging and path-breaking. The judgment contributed a great deal in changing the dynamics of our courtrooms, making them less intimidating and led to the creation of the much-needed vulnerable witnesses room.
Despite being the law’s proverbial eyes and ears, witnesses have always been treated by the system with disdain and neglect. The decision above went a long way into making the process less torturous for them. The Vulnerable Witness Courtroom Project, which Justice Mittal spearheaded, was one such initiative in making the courts more responsive to the needs of the vulnerable victims and witnesses. The project, (which, I can speak from experience, has helped a great deal in Delhi) was also introduced in Jammu & Kashmir by Justice Mittal.
Justice Mittal’s interventions on the sentencing front have been quite important. Vikas Yadav v. State of UP was a manifestation of the skewed power relations in society. The accused persons had murdered the partner of their sister in a bid to preserve their hollow “honour”, as they did not approve of her partner. The immediate question was, first, whether the victims of the crime (the family of the deceased) were entitled to be compensated for the harm caused to them.
In answering the same in affirmative, the Court further held that ‘honour killing’ on account of objection to a woman’s choice of life partner is the gravest violation of a fundamental right to life of the woman and that woman in question (and not just the family of the deceased) is a victim of the crime and ought to be treated as such.
Justice Mittal’s judgment in PK Koul v. Estate Officer concerned several internally displaced persons (IDP) of the J&K minority ‘Kashmiri Pandit’ community who relocated to Delhi due to violence in the valley post-1989. They were Central government employees and had approached the Court seeking protection against forcible eviction of the quarters occupied by them. Justice Mittal wrote a landmark judgement upholding the human right to adequate housing. Recognizing the ‘right to shelter’ as a fundamental right, Justice Mittal observed,
“The right to shelter of every person has been recognized as an essential concomitant of the right to life under Article 21 of the Constitution of India.”
The judgment condemned the practice of forced evictions, and the Court chastised the respondents for failing to even consider providing rehabilitation to the IDPs. The Court went on to impose exemplary costs inasmuch as the threat of forcible eviction, by the process resorted to, affected the fundamental rights of the petitioners.
One may talk endlessly on how compassion must inform our lives, but the same is meaningless unless we put our pens where our heart is, and our compassion translates into judgments that make a meaningful difference to people’s lives.
Justice Mittal’s commitment to institution building and leadership on the administrative side has also been extremely inspiring. For instance, one of the last initiatives by her (though certainly not the least!) was the launching of a two-pronged initiative titled ‘Insaaf ki Dastak’. This initiative seeks to enable continuous access to justice to people living in far-flung areas of J&K. Areas ravaged and cut off by harsh weather and geographical conditions, further compounded by illiteracy, disability, poverty or any other disabling reasons in approaching the nearest Munsiff, Magistrate, District and Sessions Courts and the High Court. Justice was sought to be brought close to them by allowing them to file certain petitions through the nearest post office.
One common trait in most of Justice Mittal’s verdicts is her remarkable ability to refer to a catena of judicial pronouncements, both domestic and foreign, and then distilling the law down to its essentials.
Court On Its Own Motion v. DSP Jayant Kashmiri is yet another example of Justice Mittal’s commitment to free speech and the need to ensure that contempt laws do not scuttle the freedom of expression. The facts of the case are interesting. In this case, the trial court had passed an order for the release of documents seized by the Central Bureau of Investigation (CBI) during an investigation. The Delhi High Court set aside this order and the CBI, in its reply, relied on this order of the High Court to support its submission that, as the investigation was still underway, it would not be appropriate to defreeze certain bank accounts at that stage.
The trial court took objection to the reliance placed by the CBI on the order of the High Court noting, inter alia, that the reliance was misplaced as the order of the High Court concerned seizure of documents and had no relation to the defreezing of bank accounts and that the said reliance was placed “as a warning and intended to vilify a judicial office” and was a “calculated psychological offence and mind game to intimidate the judge” into seeking orders in their favour”. Observing that this did not amount to fair criticism in good faith, the trial court preferred a reference for criminal contempt against the investigating officer and other officials of CBI who had approved the reply.
While deciding this, the High Court undertook a detailed examination of what was meant by contempt of court and the different scenarios where this law could be invoked. The Court noted that its shoulders were broad enough to shrug off such comments and the raison d’etre of the law of contempt, i.e., protection of the administration of justice, should never be forgotten. Calling for careful consideration while invoking contempt jurisdiction, Justice Mittal also noted the difference between a remark against a Judge as a Judge and a Judge as a person and observed that this law was not for “for the gratification of the desire of an individual to settle scores or on account of undue sensitivity of an individual judge”. Based on these principles, the Court held that the reference by the trial court could not succeed.
Justice Mittal’s observations in Indu Jain v. Forbes are also interesting. This was one of the first cases to discuss whether constitutional remedies could be employed to address questions of privacy between private persons. The judgment of the Court is also noteworthy for its observations on the limitations on the right to privacy of public personalities. In this case, Forbes magazine was to publish an issue on Indian billionaires, including the petitioner. The petitioner, on a claim of breach of the right to privacy, sought an injunction prohibiting Forbes from effecting publications relating to the plaintiff or posting information about her on their website.
Justice Mittal eruditely differentiated between the privacy of an individual and the privacy of a public figure, such as the petitioner, and the right of the media to report about such influential figures. The Court observed that it was settled law that “the citizen has a legitimate and substantial interest in the conduct of such persons and the freedom of press extends to engaging in uninhibited debate about the involvement of public figures in public issues and events”.
The Court held that the petitioner had admitted that she was a public person and, given that her accomplishments were widely acknowledged by both the media and the public at large, it was not open to her to claim seclusion from a technical analysis of information which was already available in the public domain.
Another interesting decision is Mahender Yadav v. CBI, where a Division Bench of the Delhi High Court (headed by Justice Mittal) was faced with the question as to whether it was sufficient to merely allege that, on an apprehension of bias, justice will not be done, and the judge must recuse himself/herself from hearing the case? The Court discussed the issue in detail, placing reliance on Supreme Court rulings and important verdicts rendered by the foreign courts including those from the United Kingdom, Australia and South Africa.
Holding that a duty is cast on the judge to objectively consider the objection and exercise judgment upon it, rejecting tenuous and frivolous objections, acceding only to a reasonable objection of substance, the Court refused to accede to the submission that mere apprehension of bias constitutes a reason for judges to recuse themselves. It was further held that the onus of establishing reasonable apprehension of bias rests on the applicant and the same can be established by materials ascertained facts that are “readily ascertained and easily verifiable by making reasonable inquiries”.
Justice Mittal’s unparalleled contribution to society has been recognized multiple times. For instance, the President of India conferred upon her with the Nari Shakti Puraskar 2017, the country’s highest civilian honour for women. She also received the P N Bhagwati Award (2019) at the Capital Foundation National Awards in recognition of her stellar judicial work towards access to justice and her innovation in designing the ‘Vulnerable Witness Deposition Complex’.
One can really go on and on about her inspiring body of work and still not be able to do justice. I would end the piece by saying that Justice Mittal has taught me (and a lot of people!) the meaning of compassion and justice, and helped them navigate the journey from mere judging to justicing. She has been one of the most transformative influences in my life, and over the years, I’ve tried, with much less grace and style, to model myself on her, as a young judge, a lawyer, and – more than anything else – as a human being.
The author is an Advocate and a former member of the Delhi Judicial Services. He acknowledges the invaluable inputs of Advocate Rushabh Aggarwal, and Shreyash and Sushant.