A jurist who broke barriers

This is what Justice Leila Seth, a pioneering jurist who became the first woman chief justice of a high court in India, and died in New Delhi late on Friday night, wrote in a national newspaper in 2014:

“My name is Leila Seth. I am 83 years old. I have been in a long and happy marriage of more than 60 years and I am the mother of three children... I love them all. My husband and I have brought them up with the values we were brought up with — honesty, courage and sympathy for others. We know that they are hardworking and affectionate people, who are trying to do some good in the world.”

“But our eldest, Vikram, is now a criminal, an unapprehended felon. This is because, like many millions of other Indians, he is gay; and last month, two judges of the Supreme Court overturned the judgment of two judges of the Delhi high court that, four years ago, decriminalised homosexuality. Now, once again, if Vikram falls in love with another man, he will be committing a crime punishable by imprisonment for life if he expresses his love physically. The Supreme Court judgment means that he would have to be celibate for the rest of his life — or else leave the country where he was born, to which he belongs, and which he loves more than any other.”

“I myself have been a judge for more than 14 years — first, as a judge of the Delhi high court, then as chief justice of the Himachal Pradesh high court. Later, I served as a member of the Law Commission, as well as the Justice J.S. Verma Committee, which resulted in the Criminal Law Amendment Act 2013 being passed. I have great respect for legal proprieties in general, and would not normally comment on a judgment, but I am making an exception in this case.” “But what has pained me and is more harmful is the spirit of the judgment. The interpretation of law is untempered by any sympathy for the suffering of others.”

“The voluminous accounts of rape, torture, extortion and harassment suffered by gay and transgender people as a result of this law do not appear to have moved the court. Nor does the court appear concerned about the parents of such people, who stated before the court that the law induced in their children deep fear, profound self-doubt and the inability to peacefully enjoy family life. I know this to be true from personal experience. The judgment fails to appreciate the stigma that is attached to persons and families because of this criminalisation.”

As her comments indicate, though as a retired judge she was well aware of the confines and boundaries of the law, she could transcend them in defence of a higher sense of justice. Nothing that I may venture to write will better communicate to the reader the courage of conviction, extreme sensitivity and the deep commitment to human rights of Justice Leila Seth than the above excerpt. It aptly demonstrates her ability to weave together constitutional jurisprudence with feminine sensibilities of being the mother of a gay son and brings to life the slogan of the early feminist era — the personal is political.

Reading this article three years ago made me wonder about the inner conflict which she must have gone through to come to terms with this reality and the battles she would have had to wage within her family, community and within the legal field, first as a lawyer and then as a judge. I have never forgotten this article and with her passing away, the words carry a new meaning to me and bring to life her sterling qualities.

And yet, her appearances were highly deceptive of the bold public stand she had taken on many occasions. Dressed in traditional silk sari, a big red bindi adorning her forehead, the traditional mangal sutra (the black bead chain worn by married women) around her neck, just half inch above five foot, the average height of an Indian woman, she looked every bit a traditional Indian homemaker. It was difficult to imagine her seated on the stately high-backed chair carrying the state emblem on the high podium reserved for a chief justice and delivering judgments on constitutionalism or complex matters of taxation.

Perhaps it is easier to visualise this today when four of our important high courts have women chief justices, but must have been very difficult for her, as she was the first to break the glass ceiling when she was appointed the chief justice of Himachal Pradesh high court in 1991. Extra cushions had to be placed on her chair so that she could become visible to lawyers and litigants in the large court hall.

Equally difficult it would be to imagine her as a headstrong feminist carrying the flag of women’s rights and gender mainstreaming. And yet she did both. She was the member of the 15th Law Commission of India (1997-2000), which ushered in far reaching changes to the Hindu Succession Act that were finally enacted in 2005, giving daughters rights in the ancestral property.

She was also an important member of the Justice J.S. Verma Committee constituted to make recommendations after the December 16 brutal rape and murder case in 2012 which broadened the definition of rape. But she stood firm against the death penalty. It is indeed a travesty of justice that she breathed her last on May 5 — a day after the Supreme Court upheld the death penalty for rapists in the Nirbhaya case.

However, when she started her legal practice, she didn’t opt to specialise in a branch of law considered to be in the domain of the “feminine” — matrimonial law — and instead opted to practice in areas traditionally considered as “masculine” — taxation, corporate law, civil and criminal appeals and constitutional law and made a mark, which led her to be appointed as the first woman judge of the Delhi high court in 1978. A fine example of mainstreaming gender.

And yet her foray into the law was a sheer accident. While in London accompanying her husband from the corporate field, she enrolled for a course in law, as it did not require her to attend classes regularly. This was convenient as she had tiny tots to care for. She thought she would fail the exams and was pleasantly surprised to find that she had topped the bar exams and had become the first woman to hold this position. And from there on, there was no looking back.

Justice Seth could traverse with ease the two seemingly opposing poles that of the formal justice system and of feminist legal domain. Even after her retirement, she never rested. Apart from being on several commissions, she published three books, the last one at the ripe old age of 84, Talking of Justice: People’s Rights in Modern India (2014), which provides an analysis of several critical issues she experienced during her legal career spanning 50 years.

With her passing away, feminism has lost one of its strongest pillars. It would indeed be very difficult to fill the void left behind by her. But she has left behind a legacy and it is for us now to walk in her footsteps. For me, the loss is personal, as she was not just a friend, but also someone I looked up and hugely admired.