“I am absolutely against [post-retirement] posts”

Justice Leila Seth to Shreerupa Mitra-Jha on rape laws, situation of undertrials in India and her latest book Talking of Justice


Shreerupa Mitra-Jha | November 19, 2014

Justice Leila Seth
Justice Leila Seth

Justice Leila Seth has many firsts to her credit. She is the first woman to top the bar examinations in London in 1958, the first woman judge in the Delhi high court and the first woman to become chief justice of a state high court. She was also a member of the 15th law commission. More recently, she was a member of the Verma committee to amend the Indian criminal laws dealing with sexual assaults. She talks to Shreerupa Mitra-Jha on rape laws, situation of undertrials in India and her latest book Talking of Justice.

Your new book Talking of Justice includes a chapter on your experience as a member of the Verma committee. What were some of the challenges of working on the report especially with the unprecedented international media attention on the Delhi gang rape case?
We didn’t really think about the attention. The mandate given to us was restricted in a way. They talked about stricter punishment for aggregated sexual assault. But we thought that we should not deal with the matter in a limited way like that. We decided it should cover all forms of sexual violence. So we not only looked at criminal laws but also civil [laws like] Representation of People Act, police reform, education, gender sensitization of the judiciary, security etc. These [the mandate] were not really spelt out in that way but we thought we can’t deal with a subject like that unless we deal with it in a holistic fashion. We looked through all of that. We put up a public notice and invited suggestions from people, including eminent people, students, women’s organizations, jurists and anybody who wanted to contribute. We had 80,000 suggestions. There was Gopal Subramanium [former solicitor general of India]. His office was working with us; 16 of them trying to sort out and classify the suggestions. Some suggested death penalty, some castration. It was quite a huge task and we knew we had just one month and we were determined not to ask for an extension. If we asked for an extension then the whole force would fizzle out and we were very keen that there be some immediate action on it. And then we had two days of open hearings also. Men and women came forward. We also wanted to hear the government’s standpoint and the police’s standpoint. So it was a very good experience for us. There was a law student who asked for her professors’ opinion at Oxford. Then through Gopal we got in touch with some other academics. Through them we got an international viewpoint. There was a wide sense of what was happening. We worked very hard, no doubt.

Bryan Stevenson, American lawyer and founder of Equal Justice Initiative and a prominent voice for poor and minorities in the criminal justice system, reveals some startling figures: Blacks make up 18% of the people arrested on drug possession charge, 36% of the people convicted and 55% of the people sent to prison. This reveals that at every stage, the blacks are particularly vulnerable. The statistics of undertrials, recently released by national crime records bureau for 2012-13, shows a similar situation in India with regard to certain minorities, particularly Muslims, SCs and STs. What could be the possible safeguards against such a bias?
I think there are two things. One is education and the other is economic opportunity. [The minorities in India are] similar to the blacks in America who do not have the education levels of the whites. Poverty and education are factors that are very important [in enhancing vulnerability] and there is a kind of societal attitude [against minorities]. The rich get away with much more. When someone is pushed more, because of poverty, lack of good jobs, lack of respect for each other or respect from the whites to the blacks, perhaps that leads to more violence. The situation must be similar here. I don’t think there is sort of a picking of minorities [more by the judiciary]. I think it is because they don’t have an opportunity or facility [to defend themselves properly]. So I think education is the answer to this. You have to have good education and you have to provide economic opportunities. Even if you have the skills and then have nothing to do, perhaps that is a worse situation. The mind will be frustrated. This happened to women. Because they were not earning their voices were not heard. But when a woman starts earning, she can fight back and is a member of society like anybody else. And these are important factors really.
So you don’t think there is a conscious picking up of people from minority communities by the judiciary?
I don’t think so. At least I won’t pick you up just because you are from a minority community. Of course, in the case of terrorism there might be that aspect [of cracking down on minorities more]. Otherwise, I wouldn’t think that in normal cases that would happen. More women are coming into the judiciary and also becoming lawyers. Similarly, if minorities are more in police, administration, then they will have more of a voice.
You were a one-member committee investigating the custodial death of Rajan Pillai. Subsequently, you submitted a report on the egregious condition of prisons. Do you feel that the situation has improved for prisoners in the last 20 years?
I think so, definitely. The medical facilities have certainly improved. At least for Tihar I know there are many more doctors [now than before]. The position is not ideal though. One of the biggest problems – and I have written about it in my book – is that in Tihar jail in Delhi, 75% are undertrials. You are now just pushing people into jails who should not be there. It is ridiculous, this problem of overcrowding in Tihar. In criminal law there is a section that if it [imprisonment] is for a minor offence then let them [undertrials] out. The supreme court has been saying that over and over again to release these people. But we know what happened in Bihar; people were in jail longer than their sentence periods. This was one of the first public interest litigations.
You were practising in the Patna high court for a long time. The number of undertrials languishing in jails is a staggering six times the number of convicts. This is the highest ratio by a long shot. What could be the reasons specific to Bihar for such an anomaly?
For Bihar, you say it is six times [the ratio of undertrials to convicts]! You know I practised in Bihar from 1958 -68. You were not even born then. There was myself and one other woman. You have read On Balance and you know what it was like. There would be no lights and bats in a bathroom meant for women. The other woman had the only key [to the bathroom] etc. I suppose, the reasons specific to Bihar is because the whole process is slow. The process of modernization or education has been very slow in Bihar. I had happy days in Patna but the fact is that it is very backward. It is slowly coming up.
As the rape law in India stands today, the victims are necessarily women and the perpetrators necessarily men. Do you think that the law is unfair for men and transgenders who are victims of sexual violence?
I was in favour of a gender-neutral law. In fact, when we did the report for the [15th] law commission, I was quite clear on that front because it is based on the law of equality and I am very much in favour of that. And Canadian laws and some other laws are based that way. Most people felt that the police were not equipped. That they would not understand this. The women’s organizations felt that they were fighting for years for the law to be changed and for the law to be gender-specific. So there was a big demand. There were hundreds of suggestions. We were still not agreed on it [making the laws gender-specific]. We still made it [the recommendation] that the perpetrator be a man and the victim could be any person. So it will at least cover those [men, transgenders etc.] cases. I wanted it [the rape law] fully gender-neutral. You would also get rid of section 377 then because if you cover it by this [rape law] then you don’t need 377.

You have repeatedly stressed, in your book as well as your public speeches, that the mindset of the judiciary must change. Isn’t that a rather long-drawn process to overturn the kind of patriarchy that the Indian society is used to? Consider a judgment of the supreme court in 2009 where the wife left her husband and children on grounds of mental cruelty and dowry demands. The court granted her divorce but refused maintenance. The bench said, “You left the matrimonial home on your own, and now you want maintenance. Is this the law of the country? What is the justification for your staying separately?” How do you see the dialectics between mindset and the law?
There is a big difference. The lower judiciary is very patriarchal. The mindset is changing but much too slowly. The change is also coming because more and more women are becoming judges and lawyers. I don’t know the figures myself but I am told that in the law colleges half the class are women and half men which is a good sign. During our time there were very few women [in law colleges]. The women’s point of view will come forward more now, you see. The change is not coming fast enough though. What is also important is [the] political will. Mindset also changes if political leaders are committed enough. Pandit Nehru managed to amend the Hindu Code Bill inspite of all the opposition. Of course, he could not bring it in one lot but had to break it down.

I am talking of the higher judiciary. Is the change fast enough in the higher judiciary?
In the higher judiciary, it is much better. In rape cases, for instance, there is a case that I mention in the book as well—The State of Punjab versus Gurmit Singh and others, where Justice AS Anand was upset [over a judgment] and chided the lower judiciary. It was a rape case and Justice Anand said that the trial court could not besmirch the character of the girl by calling her “a girl of loose morals” or “such type of a girl”.
Do you think it is not only the mindset but also the perception of the higher judiciary of being incorruptible essential for inspiring confidence in the system? In view of the controversy surrounding the appointment of Justice Sathasivam as the governor of Kerala brings to fore the larger question of ruling parties paying back constitutional authorities with political jobs after their retirement. What are your views on the matter?
I am absolutely against accepting such posts—they should neither be offered nor taken. Taking up governorship is absolutely out of sync for a judge and is not right. The pension for a supreme court judge is more than adequate and normally by the age of 65 children are also settled. If one wants to keep busy, one could write. Earlier high court judges were not even allowed to practise law. Now it is not so. Chief Justice Setalvad had fixed an amount that lawyers could charge. But after that I don’t know what happened. Lawyers, now-a-days charge horrendous amounts—different amounts for the morning, afternoon and evening. Even if you take inflation into account, you cannot charge so much. Coming back to your question, I am absolutely clear on the matter that such posts are not to be accepted.
How difficult or easy has it been handling a career and home? Do you feel you had to work extra hard as a woman?
There have been difficult phases but I had such a supportive husband and family. Of course, Premo [husband] got angry when he came back alone to a dark flat [Laughs] but those are minor things. When I spoke at a law college, the girls shouted that we need more Premos [Laughs again]. But I imagine it can be very hard for a woman who does not have a supportive partner and family who understand her need to work. The husband is supportive only if he is very confident about himself. Otherwise it is very difficult for the woman.
Any future projects in mind?
Yes, I hope to write more for children. My first book was my autobiography and then on the Indian constitution for children. Children, I feel, understand justice much better. They understand when you explain that the other child should also get equal amount of food and that there is no difference between two human beings. It is a good sign. Who is not good? Everybody is good in their own way and children understand that. It is the grown-ups who put difference in the minds of children. When Abraham Lincoln was asked what religion he followed, he said, “When I do good, I feel good, when I do bad, I feel bad. That’s my religion.” I believe that too.

The interview appeared in November 16-30, 2014 issue



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