“Sexual orientation should not be ground for discrimination” Justice Leila Seth

“Sexual orientation should not be ground for discrimination” Justice Leila Seth

Pallavi Saluja

Born in Lucknow in October 1930, Justice Leila Seth joined the Bar in 1959. She was the first woman to top the London Bar exams in 1958, the first woman appointed as judge of the Delhi High Court, and the first woman to become a High Court chief justice.

She was recently a speaker at Tedx Gateway Women’s Talk in Mumbai, and spoke to Bar & Bench‘s Pallavi Saluja about being a lawyer, life as a woman judge, and much more.

(Excerpts below)

Bar & Bench: Why did you take up law?

Leila Seth: It was a very mundane reason. I had gone to England with my husband, and I found that law was one of the few things you could do without attending classes! I had no one in the family who did law and I didn’t have a particular interest. But once I started doing it, I did quite well.

I wanted to be a teacher and had done a course in Montessori training and I thought I’d come back to India and set up a small montessori school. But once I did well at the Bar, everybody said that I must practise.

B&B: Tell us about your initial years.

Leila Seth: So in Calcutta, I looked to train under the best lawyer in the city, and narrowed it down to Mr. Sachin Chaudhary. When I met him, he tried to dissuade me by saying that law is not a profession for women. He said to me in a gruff voice, “Young woman, instead of joining the legal profession, you should go get married.” So I said that I was already married. “Then go and have a child,” he said. I told him that I already had a child. He then said that it was very selfish to have only one child and that I should go and have a second child. So I told him I have two children! (laughs) Taken aback, he said, “Come and join my chambers. You’re persistent and you’ll do well at the Bar!”

B&B: How was it working in Calcutta and Patna in those days?

Leila Seth: It was especially difficult in Patna. There was just one other female advocate. Bihar being what it is, when I used to go to the mofussil areas to practice, the crowd would gather and say, “Aurat vakil aayi hai.” (Lady lawyer has come). But that was true not only of Patna, but also of Delhi. When I became a judge at the Delhi High Court, Charan Singh was the PM at the time and he had invited a lot of his constituents to come visit Delhi. One day, I was sitting in court and suddenly I saw a huge crowd. And I asked my peshkar if there was some famous case being heard. He said, “No, madam. They came to see the zoo. They heard that there’s a woman judge at the Delhi High Court, so they’ve come to see you!”

Initially It was difficult as a lawyer, because everybody thought I wouldn’t stay. I stayed away from women’s issues; I didn’t want to be known as a woman lawyer doing divorce and custody cases. So I especially looked for Income tax, commercial law, contracts cases. I wanted to prove myself in the mainstream.

When I in Calcutta, I was given a brief to write an opinion. I sent the opinion but I never got my fees. After about three months, I met him at a party and he came up to me and said, “I don’t know whether to tell you this or not, but after we got your opinion, we sent it to the client. And the client said that he wanted a male opinion. I told my client that she was a very competent young woman, so there’s no question of male or female.”

The client sent the brief to the senior most lawyer in Calcutta High Court, who returned the opinion with only one line: “I endorse the opinion of Leila Seth.” And the client was happy because they got their male opinion, even though they had to pay ten times the fee. So that was the attitude back then, they didn’t trust women to do a good job.

B&B: How did judgeship come about?

Leila Seth: I had been practicing in the Delhi High Court and the Supreme Court for about 5-6 years. I think it was also at that time when they were very anxious to have women at the Bench. So Chief Justice Delhi TVR Tatachari asked me to join and I agreed; the custom back then was that when you are offered judgeship, you don’t refuse. Nowadays, a lot of people refuse because for men it’s much more difficult, as they have to look after their families. Being the first woman judge of the Delhi High Court, I got a lot of publicity!

B&B: Did you have the temperament to be a judge?

Leila Seth: In the beginning, I didn’t know whether I had made the right decision. From being a player, you are suddenly an umpire. When you’re practising, you argue your case as much as you can and say, ‘Let the damn judge decide.’ Now, suddenly you are that ‘damn judge’.

It is an awesome power, because when you look at it, you can take someone’s right, property, decide about their emotional relations etc. It’s a huge responsibility.

B&B: What was it like to be the only woman on the Bench?

Leila Seth: It was strange. Whenever my colleagues introduced me they would say, “Meet our new woman judge.” I told them that I didn’t introduce them as “gentlemen judges” or something like that. When I joined they told me, “Now you can organize our parties!” I said, “Certainly not! Whoever was organizing them earlier would continue.” They sort of took it for granted that because I was a woman, I would do all these things.

As far as the judicial side was concerned, I never felt singled out. Except with Chief Justice Tatachari. Normally, when you join the Bench, you start off by sitting with the Chief Justice. But he refused to sit with me as it meant not only being together in court, but also being alone in closed chambers for discussion because he was very conservative. He always had this huge teeka on his forehead. But the second senior-most judge who I sat with, Justice Prakash Narain was much more open.

B&B: In your book, you’ve written on gender sensitization of the judiciary.

Do you see judges treating men and women equally?

Leila Seth: Not at all. Especially in rape cases, the lower judiciary has a slightly different attitude. You could see that in the Bhanwari Devi case; the lower judiciary felt that she couldn’t have been raped by upper class and respectable middle-class men.

When it comes to the higher judiciary, they are much more understanding of the victim’s position. I found that the judges who had daughters were much more understanding – for example Justice JS Verma and Justice Anand.

I do feel it’s a question of your own upbringing, the way your father treats your mother, how the daughters are treated in the house. You learn so much by osmosis. I suppose it’s getting better, but it’s not gone. It’s still a patriarchal society.

B&B: The Justice Verma Commission – a lot of your suggestions were accepted and made into law.

Leila Seth: We made many suggestions, including a few on marital rape, and many of them have not been [accepted]. We also brought up the question of whether rape should be treated as gender neutral or gender specific. While the Law Commission has suggested that it should be gender neutral, the Verma Commission suggested something in between, where the perpetrator is a man and the victim could either be a man or a woman. When the Ordinance was issued, it was what we suggested but then there was a huge demand from women’s groups that they wanted it to be treated as gender specific. So when the Act came out, the perpetrator was a man and the victim was a woman. The transgender and LGBT communities were left out, so I don’t think it was a right decision.

B&B: Do you think there will be a day when all the suggestions would become law?

Leila Seth: It will. I am a big optimist and I know that things will change. I didn’t think that the Right to Education and Right to Information Acts would come in my lifetime. Even changes to the Panchayati Raj have come, and all of these have made a difference. Women are entering the legal profession, they are in high positions everywhere. Even in education – girls are the toppers! (laughs) It’s wonderful, and I think more change will come.

B&B: On the S.377 judgment of the Supreme Court, you wrote, “The judgment has treated people with a different sexual orientation as if they were people of lesser value.”

Leila Seth: The judgment of the Delhi High Court was very creative, and the Supreme Court said that it was just a few people. They don’t understand that it affected probably 5% of the population.

They are not doing anything wrong, and in fact they are not coming out as they’re afraid. They are even afraid to come out to their parents. Sometimes, the parents think that they will get “cured” by getting married, which results in difficult marriages.

If S.377 is treated as the Delhi High Court treated it, things will be on a much more even keel. People would come out, parents would stop pushing them to doctors or some kind of magicians, and people can lead a more normal life.

The people I know who have come out are extremely nice human beings, why treat them as criminals? Sexual orientation should not be ground for discrimination.

B&B: Do you think the Supreme Court will have a relook at its decision?

Leila Seth: Well, there’s a curative petition pending, I don’t know how much success that will have. But everything changes with time. We are slow-changing, patriarchal and hierarchal society and the young people will make it change.

B&B: How did you deal with your son’s coming out?

Leila Seth: The first time I got to know, I wasn’t familiar with the whole idea. I love my son and thought he wasn’t doing anything wrong, and he was bisexual, so I just accepted it. But I was afraid for him; somebody could have made a case against him because it is a criminal act, so I was worried.

I mentioned it in my book. He said, “Put it in, it will give courage to other parents.” It’s a brief paragraph, but it describes how its difficult to accept in the beginning, but how you must. And you will lose them if you don’t accept it.

B&B: Are you already working on your next book?

Leila Seth: I wrote a book for children called We the Children of India. It’s based on the Preamble and is for children aged 7-17. It explains each and every word in the Preamble. When I talk to children, they understand what it is. I’m thinking of writing a supplementary book telling stories about equality, justice etc.

B&B: Last, What advice would you give to young lawyers?

Leila Seth: Work hard, and do what your heart tells you to do.

Photo Credit: Alok Sinha

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