First published on Bar and Bench
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 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 – not wanting the perfect to be the enemy of the good, and not wanting to be indecisive for long. Or was it about me being a knight-errant of sorts – generally; 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. Justice Mittal 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, the challenges that trial court judges faced and the ways and means in 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. You could see how her heart rankled at each injustice and how she was always trying to come up solutions to make justice accessible, courts more humane, and relevant, down to the last woman in the line.
Justice Mittal recently retired as the Chief Justice of the High Court of J&K after an extraordinary judicial career. (A longer piece about her life and her days at the Bar will follow). 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 in each case, the underlying life story 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. The case was almost a test study in botched up investigations and improperly conducted trials. Such a trial was a travesty of justice and disproportionately affected Sikh widows, who never got the justice they deserved. Observing that the courts had a legal duty to ensure that the justice delivery system was followed in earnest, the cases were re-opened. 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. This is what the Court did in [Manjit Singh Sawhney v. Union of India 2005 SCC Online Del 560].
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 (2017 SCC OnLine Del 7705), 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.” Notably, in these cases, the accused had been acquitted on account of non-examination of the eye-witness/independent witnesses by the prosecution. It was a case of hasty and superficial disposal of the case – in the first instance. The Court’s conscience was shocked, and that led to an examination of the statutory framework, with a view to finding a way of intervening in the matter as the appellate Court. Section 401 of the CrPC gave the Court that window. Ordinarily, High Courts do not interfere with findings of acquittal by the Trial Court. However, an exception can be made in cases of glaring illegality and a grave miscarriage of justice. This power is seldom exercised, and courts have usually adopted a ‘hands-off’ policy. Adherence to this self-imposed restraint would have been tantamount to judicial abdication in a case such as this and keeping this in mind, the Court felt that it was under a constitutional duty to order re-trials. This was later termed by Mr HS Phoolka, and rightly so, as the first instance of proactive judicial intervention in the 1984 set of cases.
In Delhi High Court Bar Association v. Govt. of NCT of Delhi (2013 SCC OnLine Del 4091), the question of access to justice was – once again – in issue and the Court, led by her, 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. This judgement is the only Indian judicial pronouncement that finds a place in Professor Judith Resnik’s celebrated book – ‘The Reach of Rights’ – on ‘Global Constitutionalism’.
Justice Mittal has also pushed the frontiers of law by creative and sensitive judicial interpretation in many cases. Justice Mittal, on multiple occasions, has 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 (MANU/JK/0922/2018), 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, two very different areas conventionally- one being an offence against the body and the other against the property. 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
Another inspiring decision was Mohd. Ismail v Slum & JJ Department (WP (C) No 819/2009). This was a case where a litigant had been forcibly evicted during the infamous Turkman Gate slum demolition and was denied rehabilitation under the resettlement scheme on account of non-appearance before the State on the designated date. One of the arguments of the State (which was resisting the claim) was that the petition is hopelessly time-barred and that the same should be dismissed at the very outset. The procedure, which is to be the handmaiden of justice, was sought to be used to deny justice. Instead of taking the case as a mere serial number on the cause list and a file, the Court dived deeper into who the Petitioner was; it found that he was a person of extremely limited means. In fact, after suffering the trauma of forcible eviction, he then suffered an accident which confined him to bed for a long period. This was the life-story behind the case; a case sought to be shot down on a technical ground. Court held that given the circumstances, the delay was understandable. The Court observed that the law of delays and latches is not an inflexible rule and social context, realities and the asymmetries of power and opportunity – especially in a country like ours are extremely important considerations to be kept in mind. What more evidence does one need of financial pecuniary being a barrier to access to justice than the fact that it took over 30 years, from 1976 to 2009, for a financially impoverished man to walk the distance of mere two and a half kilometres to reach the gates High Court of Delhi to seek enforcement of his fundamental right of shelter.
Another decision that is a testament to Justice Mittal’s sensitivity for the poor is the case of Suhail Rashid Bhat v. State of Jammu and Kashmir (2019 SCC OnLine J&K 869). 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 and whip seemed to be directed towards beggars and not begging. It was forgotten that: the idea is not that no one should beg; it is that no should have to beg. Being poor is not a crime. 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, where monks have begged for alms for centuries and piety is considered the very soul of our culture.
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. This especially struck a chord with me as, a few years back, I had the great fortune of exonerating many young persons accused of selling tea (without a license) in trains by applying similar logic. In a lot of ways – it felt like the humble fragments of my song, had come – at last – to a fine melody in this decision.
Justice Mittal has also done substantial work to make our courts more victim-friendly. In Virender Singh v. State (Crl A No 121/2008), 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 IIIrd 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 judgements 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. For instance, it was envisaged that the officer recording the statement of the victim should not be in police uniform; immediate steps should be taken to associate a scientist from Forensic Science Laboratory or some other Laboratory or department in the investigation; the assistance of a psychiatrist should be sought – whenever needed; statement of the victim should be recorded verbatim; truth should be brought out by seeking proper clarifications and comforting the witness; statements should be recorded promptly without any loss of time; parents of the child or any other person in whom the child reposes trust and confidence should be allowed to remain present; at no point should the child victim come in contact with the accused; ensure that the child victim is medically examined at the earliest preferably within twenty-four hours; a friendly environment in the Courts, orientation for doctors registering MLCs etc. 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.
The decision also went on to be considered by the prestigious JS Verma Committee in their 2013 report, which emphasized the need for similar guidelines by High Courts across the country – in dealing with vulnerable witnesses. The Committee suggested that the HCs exercise their powers under Article 235 of the Constitution of India to direct the Trial Courts accordingly, in their respective states.
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 Vulnerable Witness Courtroom project, (which, I can speak from experience, has helped a great deal in Delhi) was also introduced in the beautiful State of J&K by Justice Mittal.
Justice Mittal’s interventions even on the sentencing front, have been quite important. As the trial ends, punitive dilemma begins. The dilemma was sought to be eased for the Court by laying down proper guidelines for grant of compensation. Victim, again – a forgotten entity in the system, was put at the forefront of the sentencing exercise. In Vikas Yadav v. State of UP (2015 SCC OnLine Del 7129), the Court (with Justice Mittal writing) seized such an opportunity. On facts, was a case that was a manifestation of the skewed power relations in the society – which are unduly bent in favour of some. 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 P K Koul v. Estate Officer (2010 SCC OnLine Del 4207) concerned several internally displaced persons (IDP) of the J&K minority ‘Kashmiri Pandit’ community who were 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 on the ground that it is the only roof available to 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 judgement 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, which is further compounded by ignorance, 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, (tracing the evolution of law) and then distilling the law down to its essentials.
Court On Its Own Motion v. DSP Jayant Kashmiri (2017 SCC OnLine Del 7387) 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 Ld. Trial Court had passed an order for the release of documents seized by the Central Bureau of Investigation (“CBI”) during an investigation. The Hon’ble High Court of Delhi 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 Ld.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 defreezement 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 Ld. Trial Court preferred a reference for criminal contempt against the investigating officer (the Respondent) 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 in 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 Ld.Trial Court could not succeed.
Justice Mittal’s observations in Indu Jain v. Forbes (2007 SCC OnLine Del 1424) 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 the defendants (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 the Petitioner to claim seclusion from a technical analysis of information which was already available in the public domain.
Another interesting decisions is Mahender Yadav v. CBI (2016 SCC OnLine Del 5810), 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 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 as reason enough 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 versatility as a Judge is manifest from her equally prolific judgments on the commercial law side.
In Angle Infrastructure Pvt Ltd v. Ashok Manchanda (2016 SCC OnLine Del 1534), an interesting question arose before the Court. In a petition u/s 9 of the Arbitration Act, the parties were referred to mediation, where a settlement agreement was arrived at. Later, one of the parties backed-out of the settlement, as a result of which, the legal question of enforceability of such an agreement came to be examined. The Ld. Single Judge in the case had held that given the fact that the settlement agreement was arrived at in what can be called ‘conciliation proceedings’, it morphed into an arbitral award, and was executable in the same manner as a decree. This was under challenge before the Division Bench led by Justice Mittal. Holding that none of the elaborate steps prescribed for a valid ‘conciliation’ under Part III of the Arbitration and Conciliation Act, 1996 were taken, Justice Gita Mittal went on to clarify the difference between ‘mediation’ and ‘conciliation’ in a lucid manner while also enunciating the difference between the manners in which the settlements reached by the two methods are to be executed. The most important one being that a settlement reached through conciliation is executable as an arbitral award, while the one reached through mediation is executable as any court order. This judgment very pithily examined the nuanced question of enforceability of a settlement agreement arrived at during S.9 proceedings (through mediation). The judgement also went on to inspire the insertion of Section 8A in the Jammu & Kashmir Arbitration and Conciliation Act, 1997 which specifically made mediated settlements (arrived at in S.9 proceedings) to be executable in the same manner as arbitral awards.
In Delhi Towers Ltd v. GNCT of Delhi (2009 SCC OnLine Del 3888), Justice Gita Mittal held that a ‘Scheme of Amalgamation’ approved by the High Court would be subject to stamp duty. Analyzing the scope of the courts in sanctioning a scheme of amalgamation under S 394 of the Companies Act, 1956 the Court held that sanctioning such a scheme is based upon the consent of the parties and the transfer of property under the scheme is not an involuntary act. The Court further held that scheme would be regarded as an instrument, therefore a ‘conveyance’, under the Indian Stamp Act, 1899 and, therefore, subject to stamp duty under the Act.
Justice Mittal’s unparalleled contribution to society has been recognized multiple times. For instance, the President of India conferred Justice Mittal 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 just end the piece by saying that, Justice Mittal has taught me (and a lot of people!) the meaning of compassion and justice; 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- of course (and little success!), to model myself on her, as a young judge, a lawyer, and – more than anything else – as a human being.
Authored by Bharat Chugh.
The Author wants to thank Advocate Rushabh Aggarwal, and Shreyash and Sushant for their invaluable inputs.