What made you take up law?
I always wanted to study law. Coming from a family of lawyers, I was not a stranger to the profession.
You took many family law cases under the legal aid schemes. What were these schemes all about?
I did a lot of free legal work for a number of women’s organisations, as in those days there was no state legal aid and very few women lawyers. A lot of women sought legal advice from me mainly for family problems, property disputes, matrimonial matters, for making a will, etc.
In 1978, you became the first woman judge of the Bombay High Court. How was it working in a place dominated by men?
The law is the same, you practice and then you become a judge. But yes, it was difficult for women to get work initially, irrespective of the background they came from. People were not used to having a woman argue a case; it took little time for them to get used to the idea.
You became the Supreme Court judge later. What difference did you see and feel about the two courts?
In the Bombay High Court you are dealing basically with issues within the state whereas in the Supreme Court you get the feel of what’s happening in the country. That makes a difference to the way you look at things. And I think in the Supreme Court, people were not used to having a woman judge around unlike the Bombay High Court, where people had a more liberal outlook. In Bombay I was looked upon like any other judge. Northern India is a little more conservative.
How did you get your first brief?
I will tell you a story. The first woman who enrolled as a lawyer in India was Mithan Lam in 1923. She was working in the chambers of Bhulabhai Desai. She did not get work for a very long time. Then one day, she got a brief from a solicitor to argue a case. Intrigued, she asked him, why did you choose me to argue the case? To which he replied, “Well madam, my client is very confident that he has such a good case that he cannot lose. But he wants to inflict upon the opponent the humiliation of being defeated by a woman.” That is how the first woman advocate got her first brief. My first brief was as a token of encouragement. It was to obtain a consent decree before Chief Justice M.C. Chagla. But it showed a changing attitude towards women lawyers.
What were the challenges you faced as a lady lawyer and then as a judge?
The most important thing is to make people understand that you are serious about your profession and you want to work. Earlier, people had this feeling that young women come to the court, train for a year or two, get married and go away, or they will quit after having children. So nobody was interested in giving them work.
You know when juniors are first briefed by their solicitors for a case, the idea behind it is that eventually they will gain experience and become good lawyers and the solicitors will have the advantage of having him/her. They thought it was useless briefing a woman. Another misconception is that women are a bundle of nerves and lack the fighting spirit to argue a case. So clients don’t go to them. These mindsets have changed somewhat over years. I don’t think woman now-adays face these prejudices to the same extent and it is good to see many young successful lawyers.
Which ones do you consider to be your landmark judgments, in your career?
That is very difficult to say, because some may be interesting from a legal point of view and some from a popular or social point of view. I can recollect one such case. There was a famous TV serial called Tamas, which was sought to be banned, saying it will disturb communal harmony. I was sitting with Justice B. Lentin to decide on the case. We decided people have a right to freedom of speech expression, and there was no threat to communal harmony. So we allowed the serial to be telecast. The serial became very popular with viewers, but legally it was not very interesting.
From a legal point of view, there were so many interesting cases — tax matters, commercial transactions, property disputes, etc. The first noise pollution PIL (Public Interest Litigation) came before me in the Bombay High Court where the assistant government pleader said that how can noise cause pollution? This was an interesting case to decide. I appointed an expert committee with municipal officers and police officers on it, apart from experts. They examined existing laws and recommended measures for noise control, especially during festivals. I directed that these recommendations be implemented. This report is still cited, I believe, in such cases.
You have made strong comments about reservations. Are you pro or anti reservations?
It’s not about being pro or anti. The Constitution provides for reservations, so you can make reservations. But basically reservation is denial of equality. You should not give more protection than what is required looking to the socioeconomic handicaps of the concerned group. The Supreme Court has already said that you can’t have more than 50 percent reservation of seats in educational institutions. Ultimately you have a right to equality, and reservation is an exception and a denial to equality on the ground that some people are socially backward and they need to be brought to a level of equality, which is alright. But when it comes to important posts requiring exceptional skills and ability, what ultimately matters is your skill and your ability. It is in the national interest that these posts should be given to people on merit. For example, you should have the best talent doing super speciality in medicine, where positions available are very few. So you can’t have reservation there. That’s my view.
What are you views about the women’s reservation bill?
In some areas like panchayats, which function in conservative areas it may be alright to have reservation. As far as representation of women in the Parliament is concerned, I feel, there is no dearth of competent women who can stand for elections and win. One must support them, nominate them as candidates and make sure that they come to Parliament by winning elections. What’s the use of having reservation where there is no special kind of difficulty for women to be elected? We do have women parliamentarians, but they are not in sufficient numbers because political parties are not willing to give them seats. This reflects the mindset of political parties. They must first change their own mindset. All reservations in my view should be temporary. The Constitution itself had originally envisaged it should be for 10 years only. This has been extended. Reservation may be necessary to break down the initial resistance but it should not be permanent. I don’t think it is in women’s interest to have permanent reservation.
The Vishaka guidelines for sexual harassment took over three decades to see the light of the day. Why do you think such pressing issues take so long?
Basically, unless there is public pressure to change laws, the laws don’t change. I was a party to the Vishakha judgment. In Vishaka there wasn’t enough public pressure to change the law because, I think people were happy with the judgment or they carried on with it. Having waited so long to enact the law against sexual harassment, I wish public opinion and expert opinion had been sought and debated before framing the law. But now a days laws are enacted in a hurry when there is demand for change. For example, as soon as there was public pressure after the Delhi gang rape the Parliament immediately enacted a law and then this was done in haste and the result is unsatisfactory. That’s a different problem. It is really a non functioning Parliament that causes all these problems. It should have taken up the issue of crimes against women and done a good job of law making, long back.
Do you think women’s issues are not given the priority they deserve by the Indian courts? Do you think there is a need for laws to be more women friendly?
Of course there is a need for laws to be more women-friendly. Take for example family laws. A simple thing like who is the child’s natural guardian, the law even today says first the father and then the mother. There are several such cases. Although the courts have stepped in to make laws more women friendly, much more needs to be done.
What has been your experience as a member of the National Human Rights Commission?
It was very interesting and worthwhile. I got to know of varied problems being faced by our people and what kinds of human rights violations take place. The recommendations made by the Commission though not binding are followed. There were cases where the disabled were not treated equally, where tribals were being displaced without being given alternate land, where HIV infected children were not given admissions in regular schools, and many more such problems. It was a learning experience.
What do you make of esteemed judges being accused of sexual harassment?
If there is a complaint, then there should be proper investigation in accordance with law to get at the truth. An accused should be tried in accordance with law, and if proved guilty, of course action must be taken.
Do you think it’s important for these stories to come to the forefront or do you think it should be under the wraps?
We have freedom of speech and expression in the country. That includes freedom of the Press. I don’t think you can shut out the media from reporting a case, but the reporting must be factual and not biased or exaggerated. The media should be cautious and not jump to conclusions before even investigations are complete. If the man is charge sheeted and is going for trial then of course you can report about the trial.
There are long pending reforms in the judiciary. How do we go about bringing the changes?
We have to expand our system about five times its existing strength. There is much that needs to be done. Why should it take so long to dispense justice? We need to give the courts sufficient manpower, adequate facilities, modern equipment, decent salaries to the staff and improve service conditions. We need to see the number of cases, the population and the average filing per year and find out if we have enough judges to deal with it. We need to make provisions to deal with the backlog. It has to be done in a judicious manner and not in a hurry. The quality of justice should not be diluted when we expand the system. Public pressure is your ultimate sanction in a democracy. People have a voice and they must be loud enough to be heard.