Justice Hima Kohli’s Notable Judgements

Justice Hima Kohli retires on 1 September 2024 after three years at the Supreme Court. This Friday, 30 August 2024, will be her last working day. During her tenure, she authored 39 judgements and was a part of 207 benches.

Justice Kohli’s appointment, alongside that of Justices B.V. Nagarathna and Bela Trivedi, was historic as never before did the top Court host as many women judges at once. 

In this article, we list Justice Kohli’s notable judgements in the Supreme Court namely, the plea for marriage equality and the disqualification proceedings following the Shinde-Thackeray split in Shiv Sena in Maharashtra. She was also a part of the bench which unanimously upheld the powers of the Delhi government to control administration of the National Capital Territory in 2023. She delivered a controversial split verdict in a case on medical termination of a twenty-sex week old pregnancy.

Earlier this year, Justice Kohli was part of a Division Bench which gave a slew of directions on advertising of Ayurvedic products as the bench pulled up Patanjali Ayurved and Baba Ramdev for misleading ads maligning modern medicine.

Supreme Court is not the right forum: On the marriage equality plea

Justice Kohli was a part of the majority opinion where a five-judge Constitution Bench rejected a plea for the recognition of the right to marry of sexual minorities. She signed Justice S. Ravindra Bhat’s majority opinion, which held that even though the absence of legal entitlements to queer persons was discriminatory, the Supreme Court lacked the authority to “fashion a parallel regime comprising…defined entitlements and obligations.” They further held that the Court cannot compel the state to create a “social or legal status” for sexual minorities as the Constitution did not express a right to marry as a fundamental right.

Their judgement agreed with CJI D.Y. Chandrachud’s opinion that queer persons have a right to relationship and cohabitation, but disagreed that a civil right to a union must exist in the form of a new law. They noted that this would be akin to “order[ing] a social institution” with a “new universe of rights and obligations”.

Reconsider the Nabam Rebia decision: On the Shiv Sena party split

On 11 May 2023, a five-judge Constitution Bench consisting of Justice Kohli unanimously held that the Governor of Maharashtra did not have objective material to call for a floor test following a split in the ruling Shiv Sena party. The verdict was preceded by a long conflict in Maharashtra where Eknath Shinde, alongside almost 40 rebel Shiv Sena MLAs withdrew their support for the erstwhile party leader and Chief Minister Uddhav Thakeray. The Court held that the Governor was not entitled to call for a floor test since the Shinde faction’s discontent was an intra-party issue and not in the assembly house. It noted that the governor cannot play a role in inter or intra-party politics.

In June 2022, the Deputy Speaker of the legislative assembly had initiated disqualification proceedings against Shinde’s faction. On the same day, MLAs from the Shinde faction moved a ‘no confidence’ motion against the Deputy Speaker via an email. The motion was dismissed by the Deputy Speaker. The Court held that a speaker facing removal should examine whether the motion against them was initiated in good faith. If yes, disqualification proceedings against MLAs can be adjourned, and if not, they may continue. The Court also referred the decision in Nabam Rebia v Deputy Speaker (2016) to a larger bench of seven judges. Nabam Rebia had held that if a ‘no confidence motion’ is filed against the speaker, they cannot hear or decide disqualification proceedings. This decision, the Court noted, can be potentially misused by MLAs undergoing disqualification proceedings.

Upholding Delhi government’s power over administration in the National Capital Territory

Justice Kohli was a part of the unanimous verdict of a five-judge Constitution Bench which upheld powers of the Government of NCT of Delhi to control administrative officers and civil servants. The Court reasoned that the Delhi government’s control was essential to ensure that the democratically elected government’s powers were not dissolved. 

The case arose from a tussle over Delhi’s administration between the elected Aam Aadmi Party led-government of Delhi, who derived their lawmaking authority from Article 239AA of the Constitution, and the Lieutenant Governor. The LG is a constitutional head appointed by the Union with some administrative powers over Delhi since the latter is a Union Territory. The LG is empowered under Article 239.

The Court held that the discretionary powers of the LG only extended to matters beyond the Delhi legislative assembly’s competence (like public order, police and land), those delegated by the President, those where LG is legally obligated to act, or matters where the LG is exercising judicial and quasi judicial functions.

Days after the verdict, the Union issued an Ordinance barring the Delhi government from making service laws regardless of what ‘any court’ says. A challenge to the Ordinance is being heard by a three-judge bench. The primary question before the bench is whether the ordinance violates Article 239AA of the Constitution.

“Judicial conscience” cannot allow: On medical termination of a 26 week old pregnancy 

On 11 October 2023, a Division Bench of Justices Kohli and Nagarathna delivered a split verdict in a woman’s plea seeking termination of her 26-week pregnancy as she was suffering from postpartum depression. Prior to this decision, a medical board constituted by the All India Institute of Medical Sciences had gone back and forth on the abortion. An initial opinion greenlit the termination of pregnancy, however, a subsequent anonymous email by a doctor from the medical board vouched for the foetus’s viability. 

Justice Kohli expressed her discontent, stating that the second opinion should have been made part of the previous opinion even if it were a standalone one. In lieu of the latter opinion, Justice Kohli stated that her “judicial conscience” did not allow her to approve the termination. Since Justice Nagarathna believed that the termination should be allowed, the decision was referred to a three-judge bench led by CJI Chandrachud, which ultimately turned down the mother’s plea.

Directions against misleading ads: On the Patanjali case

On 7 May 2024, Justice Kohli alongside Justice Ahsanuddin Amanullah delivered an order in a case on misleading advertisements published by Patanjali Ayurved and Baba Ramdev. The order issued directions, noting that broadcasters, outlets and print media must file self-declarations promising compliance with the Cable Network Rules and Advertising Code. The Union was directed to frame a procedure for complaint lodging by customers against unlawful advertisements. The bench held that celebrities or social media influencers would be held liable if they endorse products through misleading information.