Sujata Kohli vs Rajiv Khosla: Behind the long and uneven legal battle

Lonely struggle

Kohli, who retired last year as the District and Sessions Judge, Delhi is reluctant to look back on her struggle for justice during the past 27 years. When persuaded by The Leaflet to share her story for the sake of posterity, she said:
"I got tired after 2012. My cross examination alone took years and years. This judgement finally coming in was most unexpected, and really hats off to the bold judge (CMM Nagar) who has put his career at stake. I know this takes a lot of courage, I was a judge myself. Also even when I became a judge he (Khosla) was after my life, he really saw to it that my career was spoiled. He and his supporters would boycott my courts, they'd barge in randomly and do such sort of things. I'm glad that the Bar Council of India has depreciated this recent strike call and that women lawyers are speaking out. Of course, the judgement coming 27 years later has meant feeling disillusioned about this system. The Delhi women lawyers forum taking it up and condemning it openly means a lot. Things have changed over the years, people are expressing their dissent now."

Were there any unforgettable moments during this long and lonely battle? Kohli opens up a bit:
"One thing I felt all through, these 27 years were very pinching. In the midst of the case, I had even moved an application to withdraw my complaint and written to the Bar Council of India that I'm tired and that you (the BCI) don't do anything. I had done it to move the system and to move these institutions, but nobody responded to these calls. With all due respect, this process has raised a big question mark on the system."

In the post-conviction phase, during the run-up to the sentencing hearing, Khosla and his supporters appear to be questioning the very legal system which has sustained their livelihood all these years. They have not only questioned the integrity of the CMM, Gajendra Singh Nagar, but chosen to adopt various bullying tactics to intimidate him. A strike call on November 9, complete indefinite boycott of Nagar's court, and a fact-finding committee of five male lawyers to "scrutinise" the conviction judgment, passed by the CMM, Nagar on October 29, were the responses which one heard from the so-called Coordination Committee of All District Bar Associations of Delhi, in support of Khosla. The committee even hinted at seeking a meeting with the Delhi High Court Chief Justice to "resolve" the issue.

Kohli, as the original complainant in the case, initially chose to keep silence over what appear to be belated attempts to scuttle justice. However, when The Leaflet sought her response to these developments, she asked:

"For so many years, this case was literally buried under the carpet. It is this system that I'm now more worried and concerned about. Even now the call by those in his support said they are going to meet the Chief Justice of the High Court, but why should he be entertained by the Chief Justice? If they have issues why can't they appeal to the court?"

Judge's reasoning

CMM, Nagar was categorical in his judgment: "…the testimony of the complainant qua allegation of the complainant of being pulled by hair and arm by accused Rajiv Khosla and threat that she will not be allowed to practice from Tis Hazari extended by the accused, are absolutely truthful and creditworthy. Her sole testimony inspires confidence in the mind of the court, thus she has successfully proved all the ingredients of offences punishable under Section 323/506(i) IPC in the present matter…"

For reaching his conclusion, Judge Nagar had to reject the defence's contention that benefit of doubt in the present case must be given to the accused. The rule regarding the benefit of douibt does not warrant acquittal of the accused by resorting to surmises, conjectures, or fanciful considerations, as has been held by the Supreme Court in State of Punjab v Jagir Singh (1974), Judge Nagar held.

Judge Nagar also relied on the doyen among the former Supreme Court Judges, Justice V.R.Krishna Iyer, who observed in Shivaji Sahebrao Bobade v State of Maharashtra (1973) thus: "The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise, any practical system of justice will then break down and lose credibility with the community".

For CMM, Nagar, the timing and the consequence of events that led to the filing of the present case are so perfect that it has to be believed that such events had been orchestrated by destiny. "It is impossible to concoct the events, that is, order of Civil Judge to inspect the spot (of the incident), anxiety of complainant to be present at the spot at the time of visit of the Civil Judge, attack on the complainant prior to the inspection by the Civil Judge to deter her from meeting the Civil Judge at the spot, her reaching the court of Civil Judge with her grievance, from there reaching the police post, coming to the spot with police officer, giving a written complaint to the police officer and telling the Civil Judge inspecting the spot qua incident in question. The sequence of these events cannot be created artificially", his judgment reads.

In her complaint, Kohli repeatedly and categorically stated that the accused Rajiv Khosla puller her by hair and hand, and thereby made her forcefully stand from the bench she was occupying at the spot of incident. "Pulling someone from hair and arm would naturally result in bodily pain. Thus, in the present matter, if testimony of the complainant is relied upon, the offence under Section 323 IPC has been made ouit as bodily pain was inflicted on the complainant", Judge Nagar concluded.

A woman's forum's fight against misogyny

Has the conviction of Rajiv Khosla for the assault on Kohli led to drawing of battle-lines on gender terms? It would appear so, if one were to consider the reactions to the so-called Coordination Committee of All District Court Bar Associations of Delhi's seemingly intimidatory tactics on the eve of sentencing by Judge Nagar.

Among the sane voices of dissent was that of Delhi High Court Women Lawyers' Forum (DHCWLF), about which not much is known in the public domain. An apolitical association of women lawyers practising in Delhi, this forum began functioning around the Covid 19 pandemic last year, and is now a close knit group of about 100 women lawyers. It started as a small WhatsApp group of like-minded women lawyers to work on relief projects around the early phase of Covid-19 crisis. But it was the tragic loss of two young women lawyers, who it was said, had taken their lives during the pandemic, that had a lasting impact and highlighted the need for a platform to address specific issues that concern women lawyers within the fraternity.

"It is a platform for robust interactions on wide range of issues concerning protection of constitutional rights and civil liberties. The forum now actively works towards creating a network and generate visibility for women lawyers. It functions on the basis of collective decision making and in principle avoids vertical hierarchies. Its members include women lawyers across all age and seniority, practising in various fields of law", said a practising lawyer who is an active member of the forum, speaking on condition of anonymity.

Recently, its initiative, launched in the social media, to support law school graduaters of the 2020 and 2021 batches who are facing employment hardship due to the pandemic was well appreciated. The forum created a pool of Freelancers, comprised of recent law graduates, that other lawyers can engage on a case-by-case basis for various law-based tasks that would ordinarily be within the scope of duties of a junior associate. The forum also reached out to women lawyers in private practice across India whether they needed financial help to tide over this time. "This is a totally confidential process and you don't need to justify your needs or make out a case for the stipend", the Forum's Facebook post mentioned at that time offering to help over the next 3, 6 or 9 months.

Read: Delhi HC Women Lawyers Forum condemns the strike to protest the conviction of Rajiv Khosla, applauds victim and judge

In a strong statement released on Thursday, the Forum not only expressed its grave disappointment with the conduct of the so-called Coordination Committee, post-conviction of Rajiv Khosla, but asked whether it indicates it is siding up with a male lawyer against a woman lawyer. Many women lawyers have suffered in varying degrees the oppressive patriarchy and sexual harassment within the legal profession, only only a few like Sujata Kohli have had the courage to initiate legal process and fight her cause over 27 years, the Forum stated while complimenting Kohli. If the Bar openly sides with the accused men, how would women lawyers, who are harassed or assaulted would want to report, the Forum asked.

Even as other established civil society groups are yet to assert themselves against bullying of women lawyers, and attempts to overreach the rule of law and independence of the judiciary, following Rajiv Khosla's conviction, the nascent Forum's intervention, despite its small size, means a lot to Kohli and other women who are determined to fight misogyny in all walks of life.