Tewari / Talking of Justice: People’s Rights in Modern India
BOOK REVIEW
TALKING OF JUSTICE: PEOPLE’S RIGHTS IN MODERN INDIA1 Devyani Tewari2 Leila Seth, one of the few ‘reconstructionist3’ judges to adorn the judiciary has quite a number of firsts to her credit. She is the first woman to be a judge in the Delhi High Court and the first female Chief Justice of a High Court. She was also the first woman to top the London Bar exams in 1958. She has relentlessly championed the rights of the marginalised, including that of women and homosexuals. While on the Law Commission of India, she advocated the amendments to the Hindu Succession Act 1956 which ensured that daughters received equal rights in joint family property. My expectations from her, being a woman and a lawyer would be several; however, she fulfills them only partly. Nevertheless, she writes in a poignant style on a variety of issues like the Justice Verma Committee, gender sensitisation of judiciary, prisoners’ rights, Uniform Civil Code, etc. She etches out heart rending narratives of various persons. Throughout the book one can notice that her faith in Constitution remains undeterred and her book acts as a buttress for the subaltern. 1
Leila Seth, Talking of Justice: People’s Rights In Modern India, Aleph Book Company (2014), ISBN Number: 9789382277965. 2 B.A. L.L.B. (Hons.), NALSAR University of Law, Hyderabad (2013) and currently Research & Advocacy Officer, Lawyers Collective- Women’s Rights Initiative, New Delhi. (
[email protected]) I thank Dr. Preeti Tewari, Associate Professor, Shivaji College, Delhi University for her valuable feedback. The opinions presented are mine alone, as are the errors. 3 The “reconstructionist” view is drawn from principles of civic republicanism and such critical theories as feminism, critical race theory, and strains of postmodernism. This view implores courts to use interpretation as a means of progressive social transformation and pursues a vision of political and cultural equality and inclusion: Jane Schacter, Metademocracy: The Changing Structure of Legitimacy In Statutory Conception, 108 Harvard L. Rev. 609(1995).
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She begins beautifully with the two quotes on justice and reform and the author’s note (which entails how equality can be brought about through legislature and judiciary) which underline the theme of this book, hence the title. Her first chapter on Justice Verma Committee stems from her own experiences as a member of that Committee. A personal touch is evident throughout the chapter, like the debates, signing the copy with “Gopal’s Mont Blanc Pen”. The apotheosis of this chapter is Justice Verma’s handwritten paragraphs which he handed out in the first meeting of the Committee. He had written how rape is “a multiple crime since after rape she is raped at home, in public life, by police, then, in court and the climax is reached when sensational reports about the crime against her appear in the media”4. She makes a notable point when she writes that the Committee recommended the perpetrator to be identified as a man and the victim to be gender neutral, thus including men, women and transgenders and how the Criminal Law (Amendment) Act, 2013 did not accept this recommendation. In her note in the beginning, she writes how a forward thinking government can bring a change in the law. She touches this point again when she writes about how the aforementioned recommendations as well as the recommendations on criminalising marital rape and maintaining the age of consent at 16 were declined. She elaborates: “On the one hand, the government talks of encouraging women, empowering them and enhancing their rights while with the other, it takes away their right to refuse sexual overtures. In this respect the government has failed to do the right thing by women and has been overpowered by patriarchal attitudes.”5 Though she enlists recommendations which were not accepted by the government, she fails to mention other important ones like not fielding candidates with criminal antecedents (related to violence against women) which is highly significant as a legislator who has been charged with or worse, convicted of, offence/s against women is likely to reinforce the hegemony in our society by making majoritarian patriarchal laws. Moreover, she does not discuss the interviews they conducted with survivors of sexual violence to reach to the conclusions and the fact that time bound justice was taken into account. Therefore, the chapter fails to give an insight into what happened “Inside the Justice Verma Committee”, which is the title of the chapter. In her second chapter on gender sensitisation of the judiciary, she introduces the reader to the Bhanwari Devi case which is a tragic instance of miscarriage of justice. An analogy can be drawn between the ruling in this case (the District and Sessions Court Judge acquitted the accused as “by virtue of their age and social standing, the accused were necessarily incapable of a crime like rape” 6 ) and Justice Verma’s reflection on the 4
Seth, supra note 1, 5. Seth, supra note 1, 13. 6 Seth, supra note 1, 21. 5
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Mathura rape case which he called an instance of “gender and social injustice”7. She observes that justice should be done without considering race, caste or sex. However, I disagree with the approach adopted by her i.e. aiming towards formal equality. In my opinion, she overlooks the principle of substantive equality, which is beautifully spelt out by Dworkin: “The difference between a general racial classification that causes further disadvantage to those who have suffered from prejudice, and a classification framed to help them, is morally significant.” 8 The tragic reality is that women have been disadvantaged constantly due to sex discrimination. Thus, justice can only be meaningful if it interacts with society rather than the abstract view of justice pronounced by proponents of formal equality. State cannot be a neutral State divorced from the hegemonic societal structure otherwise it would result in maintenance of the status quo. State has a duty to act positively to rectify the impact of such discrimination.9 I also disagree with the word “victim” that she uses for Bhanwari Devi since she herself writes that the latter’s “trial was virtually a re-enactment of rape. A lesser woman would have given up but she fought it out.” Bhanwari Devi states, “I will continue my fight till I get justice.” 10 ‘Survivor’ would have been a more appropriate word. In writing about judiciary’s treatment towards women lawyers and women litigants, she again dwells upon the mindset of judges which will affect the decision. This is evident in many cases. She argues that there is a difference in perception and perspective between the lower and higher judiciary because of the differences in their class. However, this argument can be countered by some of the judgments given by Supreme Court which reinforce patriarchy11. She notes that judicial independence, impartiality, change in mindset 12 , strengthening international accountability, awareness of human rights is 7
Seth, supra note 1, 5. Ronald Dworkin, A Matter of Principle 314, Oxford University Press (1985). 9 Sandra Fredman, Discrimination Law 128-129, Oxford University Press (2002). 10 Seth, supra note 1, 69. 11 In Ram Murli v. State of Orissa AIR 1970 SC 1929 conviction was not sustained as the girl was not a virgin, as proven by her ruptured hymen. R.K. Aggarwal v. State of Orissa 1972 Criminal Law Journal, 1396 was a predecessor to the Mathura rape case. In Musauddin Ahmed v. State of Assam AIR 2010 SC 3813, Supreme Court in a conviction under Section 376, said, "The prosecutrix appears to be a lady of easy virtues. She had no objection in mixing up and having free movement with any of her known persons, for enjoyment. Thus, she appears to be a woman of easy virtues." This case could aptly and tragically be a successor to the Mathura rape case. These attitudes influence the outcome of the prosecution and impact punishment. 12 She elaborates on impartiality by quoting Justice Scrutton who said: “It is very difficult to be sure that you have put yourself into a thoroughly impartial position between two disputants, one of your own class and one not of your class.” This could be easily read as one of your own gender and one not of your gender. I concur with her by quoting Justice Albie Sachs’ words which echo of impartiality and reconstructionist approach: “Legal 8
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necessary in order to sensitise the judiciary. This assumes even more importance when she points to a study conducted by NGO Sakshi wherein it was “found that most judges were not aware of international conventions and 64% of them felt that women must share the blame for violence committed against them.” 13 Ms. Indira Jaising in her speech on 19th January, 2013 before the Justice Verma Committee stated: “Judges who give judgments of this kind (biased against women because of their own misogynist attitudes towards women) suffer no sanctions. It is time to call all institutions of society to account. One way to achieve this end is by publishing all the orders and judgments relating to crime against women so that the finding is subject to public scrutiny.” In her chapter on Social Action Litigation (SAL), she provides many cases which explain the origin of SAL. She remarks that such litigation is actually initiatory democracy since anyone can bring about rule of law and give effect to constitutional and legal principles.14 In her chapters on judiciary, including the aforementioned chapters and the one on judicial administration her stance remains that the Judges should adopt a reconstructionist approach rather than a majoritarian approach and for that judicial independence is essential. Delay in justice is equivalent to injustice and for that to cease people need to make judiciary accountable. She criticises the backlog by using the word “arrears” as a euphemism in order to criticise the government’s resistance to raising the ratio of judges despite recommendations by several reports of various Law Commissions. This naturally results in betrayal of Constitutional promises, loss of public confidence in judiciary and “all declining respect for rule of law”. 15 The reason for so much litigation is not only infringement of legal rights but also maladministration by the government. She criticises the collegium system as well as the National Judicial Appointments Commission (NJAC) Act. Selection of Judges has always been a moot issue but has gained a lot of prominence recently. She quotes Justice Ruma Pal who referred to the collegium system as “one of the best kept secrets in the country.”16 She finds concurrence in Jaising’s argument who writes that unless this process of appointment is made open to the judgments … did not emerge from the dispassionate placing of logical propositions in rationally ordained sequence.” 13 Seth, supra note 1, 33. 14 This finds support in Baxi’s writings. He remarks that SAL transformed Supreme Court for India into Supreme Court for Indians: Upendra Baxi, Taking Suffering Seriously: Social Action Litigation In The Supreme Court of India, Third World Legal Studies: Vol. 4, Article 6, 107(1985) ; Upendra Baxi, Judicial Activism- Usurpization or Democratization, Social Action Vol. 47 Oct.-Dec. 1997, 348. 15 Seth, supra note 1,166. 16 Seth, supra note 1, 173.
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public there would be no cessation of corruption in the judiciary. Names of the proposed appointees must be made public before the appointment is made and members of the general public must be invited to give their opinions on the proposed appointments. Hearings on the proposed appointments must be held in public by the commission for the appointment of judges17. As for the NJAC she criticises it on the grounds that since there is no dominance of judiciary in NJAC, independence of the judiciary will cease. However, her argument can be rebutted by scrutinising Article 124 of the Constitution which provides that judges of the Supreme Court shall be appointed by the “President of India”, after consultation with “such judges of the Supreme Court and of the High Court in the States as the President may deem necessary”. In fact, the apex court in the judges’ case and now the Parliament through NJAC Act, by eliminating the role of High Court judges, has virtually amended the Constitution by not including opinions of High Court Judges which has damaged the federal character of our judiciary18. Her chapters on women’s rights and Uniform Civil Code (UCC) are linked to the chapter on gender sensitisation of the judiciary. While talking about women’s rights she makes a passionate argument for substantive equality thus diluting her former argument on formal equality. She gives a historical background to women’s rights and examines the irony of only four women signing the UN charter and dwells on societal notions about gender norms briefly. What lacks in this chapter is that she fails to link gender norms, sex stereotypes, biases with the popular conception of ‘revenge and misuse of law’ by women, especially Sections 304-B and 498A of IPC and Protection of Women from Domestic Violence Act (PWDVA) 2005. What is also tragic is that she does not point to this in her chapter on gender sensitisation of judiciary while elaborating on the mindset of judges. She, however, raises a powerful pitch on UCC, a highly controversial point, in a country currently torn by religious strife and ruled by a majoritarian government, when she points out that women are the true minority. She refers to the two landmark cases, Shah Bano19 and Danial Latifi20, the former aiming towards UCC and the other an instance of the government being communal in the garb of being secular. Worse, in the latter case, instead of adopting a reconstructionist approach, Supreme Court adopted a specious ‘complementarian’ 21 approach. She notes that since a gendered 17
Indira Jaising, The Impeachment of Justice V. Ramaswami, The Lawyers (Mumbai) March 1991, 5-6. 18 Faizan Mustafa, Court must cast a wider net, The Indian Express (Delhi) August 4, 2014. 19 Mohd. Ahmed Khan v. Shah Bano Begum 1985 SCR (3) 844 20 Danial Latifi v Union of India, 2001 (7) SCC 740 21 Complementarian view states that the judges can think about ambiguity in a statute and doing so Courts allow a reasonable, stable and efficient legislative democracy and improve
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Constitutional UCC will prevent women from being the equivalent of chattel, men are opposed to it. This also depicts her undeterred faith in the Constitution. She raises an important question several times: “When will we be ready for it?” and points to resistance to UCC throughout history as a manifestation of constant gender injustice. She clarifies that what women are asking for is not a Hindu code but a gendered code. She also laces the chapter with narratives of women from different religions. Her chapter on children’s rights links the vicious circle of poverty to the tragic violation of Constitution and binding international conventions. An interesting part of the chapter is that she involves the stakeholders’ views i.e. children from backward economic classes and juxtaposes their views against those entertained by their employers and parents. She discusses how education can make a change in mindset and therefore, in bringing about a culture of compliance with law and social and economic democracy22. Her chapters on the girl child and widows’ rights touch upon history, religion and well entrenched customs which have the force of law or rather which supersede laws. She suggests important reforms in governance, such as, involving women in decision making. An instance of women Panchayat members’ endeavours to curb female foeticide is pointed out. She comes back to her argument about mindset when she writes that there will be effective governance and implementation of laws and policies when people are involved since “it is only when they feel that they have taken a decision that they feel responsible for ensuring that it is implemented.” 23 While writing about widows’ rights she enlightens the reader through her lucid differentiation between a widow’s de jure and de facto rights. ‘Prisoner’- the word sparks off reactions of vengeance and anger. However, her chapter on prisoners’ rights can move even the most callous person to empathy towards prisoners. There are heartrending accounts of prisoners across the world and they describe the squalid conditions in which they ‘survive’ and the brutal treatment they are subjected to. This goes unnoticed as they are never regarded as human beings. She encountered this while she was examining Ranjan Pillai’s custodial death. This chapter renders the reader to ponder over these questions: Will such inhuman treatment result in reform? Is reform actually the aim of punishment? Her final and a very brief chapter on gay rights is the most touching chapter of this book as it flows freely from her personal experience as the mother of the final legislative product of that process: Jane Schacter, Metademocracy: The Changing Structure of Legitimacy In Statutory Conception, 108 Harvard L. Rev. 609(1995). 22 A true democracy would necessarily entail social and economic democracy: Dr. B.R. Ambedkar, Constituent Assembly Debates, Vol. XIX at 979. 23 Seth, supra note 1, 112.
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a gay son and as a reconstructionist Judge. What strikes me the most is her purely legal analysis of the judgment in Suresh Kumar Koushal and Anr. v. Naz Foundation and Ors.24 She could have been easily persuaded by her emotions to analyse the judgment from an emotional lens but she scrutinises it only through a juristic lens. Her most powerful lines are: “But what has pained me and is more harmful is the spirit of the judgment. The reasoning that justice based on fundamental rights can only be granted if a large number of people are affected is constitutionally immoral and inhumane. The judgment has treated people with a different sexual orientation as if they are people of a lesser value25.” She beautifully echoes Vikram Seth’s writings on recriminalisation of love when she writes: “The right that makes us human is the right to love. To criminalise the expression of that right is profoundly cruel and inhumane.26” She begins the chapter as a mother and ends it as a mother who instills values of compassion and love in her children. How cruel it is when such values are criminalised. To conclude, the book is a beautiful account of her writings on rights of the marginalised. The chapters ran the risk of becoming insipid but the poignant narratives and beautifully relevant quotes move the reader. However, some of her passionate rhetoric is devoid of criticism of certain judgments and the biased judiciary which rendered such judgments. A substantial part of her book pertains to women’s rights yet she fails to focus on various types of violence against women, and the fact that credibility of women’s words are always doubted. The chapter ‘Inside the Justice Verma Committee’ is the most significant chapter in the book as this report was the first report to be released publicly, thus ensuring accountability and transparency. However, the chapter conceals more than it reveals. Nevertheless, the book justifies (as well as evokes) Martin Luther King’s words: “Injustice anywhere is a threat to justice everywhere.”
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Civil Appeal No. 10972 of 2013. Seth, supra note 1, 193-4. 26 Seth, supra note 1, 194-5. 25
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