Leila Seth writes with humaneness about the need for society to be more inclusive—towards women, Muslims and gays
By Rashme Sehgal
A slender, gem of a book written by eminent jurist Leila Seth, Talking of Justice, covers a gamut of contentious issues that have engaged the nation for the last 65 years. Seth’s own legal career spans over 50 years, during which time, she has done substantive work on issues, such as violence against women, the need for a Uniform Civil Code (UCC), prisoners and children’s rights.
The book elegantly builds up a case for the need to review and revise some of the most crucial laws that affect the marginalized and the vulnerable. A strong advocate for UCC, Seth argues that the country already has such a code and also uniform civil laws, such as the Civil Procedure Code, the Contract Act and the Transfer of Property Act.
Family law amendments have been witnessed in countries with Muslim majorities, including Pakistan and Bangladesh. The key issue, therefore, is why have gender-just laws bypassed India?
Seth forcefully argues that while Parsi, Christian and Hindu personal laws have been pushing for gender equality, Muslim women remain disadvantaged despite having been granted the right to vote and participate in government formation. “Depriving them of equality in personal laws is both cruel and anomalous,” stresses Seth.
The book elegantly builds up a case for the need to review and revise some of the most crucial laws that affect the marginalized and the vulnerable.
Seth takes a specific stand on the Bhanwari Devi (top) and Shah Bano (bottom) cases in her book
Three key women-related judgments have received special attention in the book and are a must read for the younger generation who may not be aware of the ramifications these cases have had on women’s lives. The first is the Shah Bano case where an elderly Muslim woman was driven out of her matrimonial home by her husband after more than 40 years of marriage. Shah Bano filed for a maintenance of Rs. 500 per month under Section 125 of the Code of Criminal Procedure (CrPC). While her case was pending before court, her husband divorced her. Although he agreed to pay her a mehr of Rs. 3,000, he refused to pay any maintenance. A magistrate ordered him to pay the “princely” sum of Rs. 25 per month and the Madhya Pradesh high court raised the maintenance amount to Rs. 179.20 per month. The husband appealed to Supreme Court (SC), stating that since he was governed by Muslim Personal Law, he wasn’t bound to pay any maintenance. The apex court struck down his appeal, stating that the provisions of the CrPC for prevention of destitution did not conflict with Muslim law. It also observed that it regretted that Article 44 of the constitution for a common UCC had remained a dead letter.
The Rajiv Gandhi government, which had initially supported the Shah Bano judgment, did an about-turn. Not wanting to alienate Muslim fundamentalists, it introduced the retrograde Muslim Women (Protection of Rights on Divorce) Act 1986, whereby Muslim women were taken out of the purview of Section 125 of the CrPC, thereby making personal law superior to the CrPC.
Seth argues convincingly in favour of a UCC. If criminal law treats all offenders with an equal hand, so should civil law, including family law. She adds that laws that are unjust cannot stand within the framework of the constitution and must be changed.
The second case Seth examines is that of Roop Kanwar who was burnt alive in September 1987 on her husband’s funeral pyre. While several locals claimed that she had committed sati willingly, women’s organizations insisted that the onus be placed on the family to prove that no coercion took place in getting this young bride to climb onto the funeral pyre.
Pressure on the state government saw the arrest of Kanwar’s father-in-law and other members of the family for abetment of suicide. As a fall-out, parliament was forced to pass a law banning sati.
The third case Seth has dealt with is that of Bhanwari Devi, a sathin (grassroots worker), who was gangraped by five upper caste men in 1992 because of her vigorous campaign to end child marriage. The district and sessions judge in Jaipur acquitted all five on the grounds that they were upper caste men of good social status and thus, incapable of rape. Bhanwari Devi’s courage, Seth maintains, did not go in vain because it was a follow-up to this case that saw the SC implement the Vishakha guidelines to protect women from sexual harassment at the workplace.
“What makes life meaningful is love. The right that makes us human is the right to love. To criminalize the expression of that right is profoundly cruel and inhumane.”
—Justice Leila Seth on the Supreme Court upholding Section 377 criminalizing gay sex
In the chapter devoted to gays, Seth admits that her son Vikram is a “criminal” according to the verdict of the apex court that criminalizes gay sex
Seth lists the steps whereby the implementation of justice can become more effective. In 1996, when she was examining Rajan Pillai’s custodial death, she got a first-hand insight into the condition of prisoners in Tihar Jail. Going through jail records and earlier studies on the conditions prevailing in jails led her to conclude that 76 percent of deaths in prisons were being caused by TB due to overcrowding and unhygienic conditions.
The book speaks out against the present, pernicious trend of locking more and more people in jails. After all, the costs of maintaining the prison system have risen rapidly. In England, the cost of keeping one prisoner in jail from 1995-96 was calculated at 466 pounds per week, while in the United States, keeping a prisoner in jail costs as much as educating a student at Harvard.
Studies across various prison systems indicate that it destroys people’s lives and despite the heavy financial costs, fails to rehabilitate the criminals. Alternative suggestions include undertrials being given early bail and being made to do community service so that they develop good working habits.
The book has also devoted a section to the girl child and child labour. Seth quotes a group of girls in a village near Pune, Maharashtra, who are enrolled in school and then taken out of it to help with housework.
The girls confessed that their parents should have explored other options before pulling them out of school, going on to add that they are certain about one fact—they will ensure that their own daughters don’t meet the same fate.
Extremely readable, the book also stresses the need for gender sensitization of the judiciary and the steps to be taken to improve judicial administration. Seth, incidentally, was one of the three members of the Justice Verma Committee appointed by the former UPA government following the Nirbhaya rape case in December 2012.
The committee had suggested amendments to the rape law and the need for speedier trials and more effective punishment of those accused of sexual assault and violence against women. Seth is, however, opposed to giving death penalty to rapists. She is also in favour of the criminalization of marital rape. But none of these suggestions received the then government’s approval.
The last chapter of the book has an essay titled, “You’re criminal if gay” where she candidly admits that “our eldest (son) Vikram” (the famous writer) is now a criminal, an unapprehended felon “because like millions of other Indians, he is gay following the Supreme Court judgement which overturned the earlier Delhi High Court judgement, thereby criminalizing homosexuality”.
Very movingly, Seth speaks out against this judgment stating: “What makes life meaningful is love. The right that makes us human is the right to love. To criminalize the expression of that right is profoundly cruel and inhumane.”
Seth needs to be given kudos for writing in a frank and moving manner on a subject as obtuse as law and the functioning of the judiciary in India.
The author, Leila Seth, covers a range of subjects that have engaged India in the past 65 years in her book
TALKING OF JUSTICE
By Leila Seth
Published by Aleph
Pages: 214; Rs. 500