Only a handful of judges are deeply conscious of gender equality: Madras High Court Senior Advocate R Vaigai

Senior Advocate R Vaigai joined the Bar in 1977, and since then has been a torchbearer for social justice. She has appeared in numerous cases to lend a voice to the marginalised.

In 2009, Vaigai and eleven other like-minded lawyers from the Madras Bar formed the Forum for Judicial Accountability (FJA) to follow up on the allegations of impropriety against former Chief Justice of the Sikkim High Court, Justice PD Dinakaran.

Since then, Vaigai and FJA have taken up several issues to guarantee the independence of the judiciary. The latest was their letters to the Supreme Court Collegium and the President of India against the elevation of Justice Victoria Gowri to the Bench.

Her father P Ramamurthi was one of the founding politburo members of the Communist Party of India (Marxist) [CPI(M)] and her mother, Ambal Ramamurthi, was a freedom fighter and Communist Party member.

In this interview with Bar & Bench's Ayesha Arvind, Vaigai talks about judicial appointments, sexism in the judicial system, workers' struggles and more.

Ayesha Arvind (AA): What attracted you to law? Was being a lawyer an obvious career choice for you?

R Vaigai (RV): I was born in the thick of politics. My father was one of the founding members of the CPI(M) and my mother was also a Communist. So, law was not something new for me. I remember going to the Supreme Court as a young child in one of the early habeas corpus matters. It must have been the early 1960s. 

I actually was a student of Science in school and Biology was my favourite subject. But I went to high school during the nationalisation reforms. Everyday, the newspaper headlines were about what was going on in the Supreme Court between the Court and Parliament on thechallenges to the Privy Purse and nationalisation of banks. I finished school in 1971. These were very fateful years for socialism. Economic socialism was being implemented through legislation. 

All of this made an impression on me and I decided to study law. I enrolled myself at the Campus Law Centre in Delhi University. 

AA: Whom did you start your practice with?

RV: I started my practice with my brother-in-law, J Ramamurthi, who was a tax lawyer. 

Justices Madan Lokur and AK Sikri were my classmates at the Law Faculty in Delhi. And Justice V Krishna Iyer I would say was my inspiration and mentor.

AA: How were your early years at the Bar? Was there any kind of resistance from fellow lawyers or from the Bench?

RV: No, in that sense, I was privileged. But when one of my colleagues started her practice, a man said she had got a favourable interim order because she had been showing her waist. 

As I said, I started my practice in Delhi in the Supreme Court in 1977 when both Justice PN Bhagwati and Justice Krishna Iyer were still on the Bench. I was an Advocate-on-Record from 1980. At the time, there were very few women lawyers.

But after I came here to Madras in 1984, I did notice how the judges were very paternalistic towards women lawyers. I don't think that happens now. Judges are not dismissive of women lawyers. But, there was a time when women juniors were not preferred. They were not accepted in law chambers because they were considered to be a distraction.

Now I think one realises how hard-working and smart women are. In fact, here, at our office, we make a conscious choice to hire more women juniors. If it gets late, we take them home with us. We don't let them go home alone. It then becomes a fun night.

AA: Your mother was a freedom fighter and your father, a founding member of the Communist Party. How was it growing up at home?

RV: When I look at my other friends, particularly girls with whom I went to school...Now you know because of social media, we have gotten in touch after 40-50 years. And we learn about each other, what they went through in their lives. Many of the girls just did home science and got married.
But for my sister and I, at home, equality in terms of gender was ingrained in our minds.

We were two girls at home. We were never made to feel that girls are different from boys. And as I said, my left politics was very much at home. For me, critical thinking, being unafraid to ask questions, being unafraid to question authority, came very naturally.

AA: You have always been at the forefront raising a voice against anything in the judiciary that breaches democratic principles. What prompted you to go down this path?

RV: The Madras High Court has had a strong group of people at the Bar who have been votaries of democracy and judicial accountability. If you go through the reported judgements, you will see that the Bar here has produced right from the 1940s, stalwarts like VG Row and A Ramachandran of Row and Reddy. That firm has produced so many left lawyers, who later went on to become leading lawyers or, judges.

These lawyers, and many others, litigated constantly on civil liberties and democratic rights of people and the marginalised. And Tamil Nadu being the cradle of the rationalist movement, the land of Periyar, whether they were Communist lawyers or rationalist lawyers, they always pursued that kind of idealism in the profession.

It became fashionable to call these petitions Public Interest Litigation (PIL) from the 1970s onwards. But in Madras, even before that, PILs had been filed in the High Court. Though at the time, the concept of locus was limited. When there was a Chief Justice here who overshot his age of retirement and continued to be a judge, it was challenged by Advocate Vasantha Pai. The judge later resigned.

Even before that, my father had filed a with petition in 1952 challenging the nomination of C Rajagopalachari into the Madras Legislative Council. In that election - the first ever general elections in 1952 - the Communists were in a majority and could have formed the government along with some allies. So, this was a backdoor entry of Raja ji to prevent the rise of the Left. That petition was rejected on the ground of locus. But the very same argument of democracy was upheld by the Supreme Court in the SR Bommai case.

AA: Was that the reason the Forum for Judicial Accountability (FJA) was formed?

RV: As I already said, there has been a history of public interest action by lawyers here in Madras. In the 1980s, some lawyers of Madras had formed a small collective to fight corruption in judiciary.

The formation of FJA was necessitated because we had suddenly received a lot of information against Justice Dinakaran (who was eventually charged with corruption, land-grabbing and abuse of judicial office) even before his elevation had been challenged. Prior to that, there was a case of Justice E Padmanabhan, who while being a judge here, also accepted a post at the State Consumer Disputes Redressal Commission in Pondicherry. We filed a writ of quo warranto because this went against the independence of the judiciary.  

So there was always a small collective of like-minded people and that collective came together. We decided that the kind of enormous material we had against Justice Dinakaran, could be taken taken up more formally.

AA: You recently spoke at an event about the need to make the Supreme Court Collegium more transparent. What are your suggestion on how it should function?

RV: The Collegium must take a strong stand. And it is high time that the Collegium sent a contempt notice to the Law Minister and the Secretary of Law because, as per the Supreme Court, the government has the right to return a file only once for clarification. And once the Collegium reiterates its opinion, it becomes binding upon the government.

For instance, some names were recommended for the Madras High Court, which came up and the Collegium said yes to the list. But, in the recent set of appointments, two names from the list were not found.

The Collegium must set in place factors which are relevant for selection of judges. You need to have constitutional goals as a parameter, or the selection criteria. You need to have an excellent scrutiny mechanism to check the background of every candidate so that something like what happened recently is not repeated.

AA: Recently, an interview given by the Calcutta High Court's Justice Abhijit Gangopadhyay and the Supreme Court proceedings on it have started a conversation on judicial discipline. What are your views on this?

RV: See, the public getting to know how courts function is one thing. But, engaging with the public on a matter that is pending before the judge or something that is in appeal, is different.

For example, a judge here at Madras recently commented on a matter that the State had appealed against. In a way, he was defending his judgement after having delivered it. He was kind of finding fault with the government, saying that it had not accepted his findings. It is inappropriate, because the matter is pending in appeal and now the judge is trying to defend his judgment.

As a citizen or, as a member of the Bar, I can talk about something and criticise it. But as long as a matter is pending before the court, I don't think it is appropriate for any judge to speak about a matter that is either pending before him or, is pending in appeal.

AA: You have been appointed as amicus in several suo motu matters. While you did not appear in the case of the fisherfolk being removed from Marina Beach recently, what is your opinion on the Court taking suo motu notice in the matter?

RV: This was not a matter of environmental pollution, right? I understand if there is human intervention causing degradation of nature. But that was not the case here. By definition, fishermen have to live by the sea. And you can't ask them to live by the sea and eke out their livelihood one mile away. The urban population has eaten into their space. So how are we justified in displacing them? These are social issues. You cannot judge them with an urban elitist approach.

AA: During the Koodankulam nuclear plant protests in 2012, you had said that was the first time the State had come out openly defying democratic principles and using force for social control. Such incidents now appear common.

RV: The executive also gets emboldened by its political bosses and the kind of political climate that is created. For example, if you see the video of Atiq Ahmed. How is that possible? When the first shot is fired, I don't see any police man next to him at all. How long does it take to overpower a man who is shooting from just one foot away? But none of the policemen could apprehend him. All these encounter killings...they go unchecked because of the kind of political climate that is being created.

And unfortunately, this political climate is also percolating down to judicial verdicts.

AA: In 2019, you and 63 other lawyers wrote to the then Chief Justice of the Madras High Court asking that no cases pertaining to women be listed before Justice S Vaidyanathan. Is sexism still pervasive in the judiciary?

RV: A few judges have started being conscious and thinking. What is happening before the Constitution Bench now in the Supreme Court on same-sex marriage. It is heartening to see these things being discussed in an open court. Ten years ago, this would not have been possible.
I am not commenting upon which way the court is going, but you can't think of these things happening a decade ago.

So there is a movement forward. For example, the series of judgments that say that a survivor of sexual assault is to be kept anonymous. Care must be taken that they are not subjected to repeat questioning, or, that they are not brought face-to-face with their perpetrator. Then there is the Delhi High Court judgment on providing crisis prevention centres in High Courts. Though most courts, including Madras, have not provided it yet. We had raised this issue during the Pollachi matter, but that writ petition is still lying in cold storage.

So, awareness is among a very, very small percentage of judicial officers. Patriarchal notions and attitude run so deep that it is very difficult to wipe it off in a single stroke. The struggle has to go on. There are a few judges who are deeply conscious of gender equality, but they are just a handful. Women are emerging. In the legal profession also. When I joined the Bar, there were hardly any women.