By Ajeet Singh
India’s public interest litigation revolution started in earnest 34 years ago in 1979, when, as the Indian Express described it in a January 6, 2010, article, “a woman lawyer confidently climbed the 17 steps of the Supreme Court and walked into a cold, thick-walled courtroom without a thought for the frowns trained at her from the high priests of Indian judiciary and her male colleagues.” That solitary figure was the indomitable Pushpa Kapila Hingorani. Interviewed for this newsletter recently, she stated modestly: “I filed a habeas corpus writ petition under Article 32 of the Constitution, prepared by my husband, N.H. Hingorani.” The facts underlying the writ petition were laid out in two articles published in the Indian Express newspaper in January 1979 by K.F. Rustamji, a distinguished and highly respected senior police officer. The article shed light on the appalling suffering of accused persons all over India in jail awaiting trial (“undertrial prisoners”).
In its decision in the case (Hussainara Khatoon & Others vs. Home Secretary, State of Bihar case ([1980)] 1 SCC 81) (also known as the Undertrial Prisoners’ Case), the Supreme Court of India recognized the right of anyone arrested “to expeditious trial and legal aid” as a fundamental right under Article 21 of the Constitution of India. The Undertrial Prisoners’ case led to a flood of public interest litigation, which to this day, is one of the most effective ways to hold the executive branch of government accountable to its citizens. Ms. Hingorani was the pioneer who sparked that revolution.
The Supreme Court bench that heard Ms. Hingorani’s writ petition was so shocked by what it learned during deliberations that it ordered the immediate release of over 40,000 undertrial prisoners from various jails nationwide. Shocking facts were revealed in the case. Many prisoners were in jail for longer periods than if they had been charged, tried, convicted and given maximum sentences. People were held in jails for as long as ten to 12 years, or even longer periods of time without a trial or bail. These forgotten inmates included a man whose file had been lost, a girl of ten who had allegedly stolen something in a cinema hall. Probably the most distressing and common cases were of women who were in jail, not because they had committed crimes, but because they were victims who were needed to give evidence in cases.
The Court observed that “the offences with which some of them were charged were trivial, which even if proved, would not warrant punishment for more than a few months, perhaps for a year or two, and yet these unfortunate forgotten specimens of humanity were in jail, deprived of their freedom, for periods ranging from three-to-ten years without even as much as their trial having commenced. It is a crying shame on the judicial system which permits incarceration of men and women for such long periods of time without trial.” While there were a few public interest cases brought before 1979, public interest litigation really came into its own after the Undertrial Prisoners’ Case. What made public interest litigation different was that a case could now be brought by any non-aggrieved member of the public or even the court itself (suo motu or sua sponte), rather than only by an aggrieved party. The petitioner could be a member of the public, a non-governmental organization (NGO), an institution or an individual. Public interest litigation is brought under the original writ jurisdiction of the higher courts, in essence the writs of habeas corpus, mandamus, and certiorari, but framed in the Constitution as Article 226 for the High Courts and Article 32 for the Supreme Court. Recent public interest litigation has focused on environmental protection, town planning, public safety and the right of the poor to food paid for by the government. Ms. Hingorani has the singular distinction of being the catalyst for the explosion of public interest litigation whereby the judiciary began issuing orders to remedy injustices that had been allowed to fester by a cobwebbed and special-interest mired executive.
In a long and distinguished career, Ms. Hingorani, a professed Gandhian, has filed and argued over 100 pro bono public interest litigation cases in the Supreme Court of India. Many have resulted in judgments providing relief to the poor and under privileged.
The now 85 year old Ms. Hingorani was born on December 27, 1927, in Nairobi, of parents who had migrated to Kenya from India. She was brought up in a spiritually observant reformist Hindu community, with a conservative social outlook. Of her education, Ms. Hingorani told this newsletter:
After completing my schooling in Nairobi, I wanted to go abroad for further study. However, it was not considered appropriate for girls in those days in our community and my mother wished to get me married at an early age. Despite the unwillingness of my mother, my father, a teacher and social reformer, encouraged me to apply to various universities in Britain. I became the first girl in our community in Nairobi to do so and to go overseas for higher studies. At the age of 19, in 1946, I left Nairobi for London to join Cardiff University to study English, Economics and History. Along with my studies at Cardiff, I also joined the Honourable Society of Lincoln’s Inn in London to be a barrister.
Over the next few years, Ms. Hingorani remained involved in different activities. These activities included working in villages in India, writing books for beginning readers, participating in a UNICEF research project on children of Asian communities in Kenya, teaching at the University of Delhi, conducting training in drama in an institute run by UNESCO and the Asian Institute of Drama, and finally becoming barrister in 1960.
I came to settle in India in the year 1961, and started legal practice in the Supreme Court of India, where only one woman lawyer was in practice at the time. In those days women in law practice had to face several challenges. Acceptance was the greatest challenge for women lawyers when I started legal practice in India. Nobody thought we were serious about the profession. But presently, there is no such challenge for women lawyers. Now, female attorneys just need honing of their skills appropriately to achieve leading positions in the legal profession. Undoubtedly, there are immense prospects for women (today) to practice law in India, with a number of women also becoming judges.
When asked what sorts of strengths in the next generation of women lawyers/legal professionals would help them handle the challenges they will likely face, Ms. Hingorani suggested women lawyers have “the courage to face challenging circumstances, both professionally and socially. They should be equipped with adequate skills to ably compete with others…. Indomitable optimism and [a] can-do spirit would further help them while dealing with adverse situations, enabling them to succeed in the legal profession.”
Ms. Hingorani emphasized that it is essential that women lawyers practice in their areas of competency from the beginning. They should be groomed… accordingly from the very beginning [and] they should be “encourage[ed] to be independent and to have the confidence to stand alone. Imbibing such strengths and values will definitely reshape their personalities [as effective lawyers].”
Harkening to her own social activism, Ms. Hingorani added that early grooming and encouragement “would not only help women enhance the scope of their professional activities, but also to play a greater role in the society at large.”
Ms. Hingorani is currently a senior Partner in a family law firm – her husband Mr. N. H. Hingorani, her son Dr. Aman Hingorani, and two daughters Ms. Priya Hingorani and Dr. Shweta Hingorani are all advocates. Her daughter-in-law, Dr. Manni Hingorani, is a surgeon. Ms. Hingorani said that she was fortunate to be able to develop her legal skills and social activism because of her own strengths and commitment but also because of the support, first of her father and then of her husband. She, in turn, supported and encouraged her own daughters. Dr. Shweta Hingorani is a corporate lawyer and gave this newsletter her perspective on women lawyers engaged in corporate law:
The development of corporate law and corporate law firms in India has essentially taken place post liberalization of the economy in the early 1990s. Accordingly, compared to the West, this has been a fairly recent phenomenon. Nonetheless, there already exists a discernible trend of greater participation by women in corporate law and, as in the case of the corporate sector, more women are occupying senior positions in corporate law firms. In my experience, firms by and large offer a level playing field for women legal professionals. However, it may sometimes be a challenge to establish one’s authority and competence, at least initially, with certain clients, particularly those drawn from government and the public sector.
Ms. Priya Hingorani, active in the practice of law since 1990, has appeared in the Supreme Court of India, High Courts of Delhi, Calcutta, Bombay, Chandigarh, Orissa and Jammu & Kashmir as well as subordinate Courts and Forums. She also enjoyed the prestigious position of being the youngest advocate ever to be elected as Vice President, Supreme Court Bar Association, New Delhi (2005-2006). On being asked how the legal profession has changed for women since her mother’s beginnings in law, and what challenges women might face in the future, she commented:
Now, many more women are opting into legal professions, but most of them prefer to join the corporate sector and quite a few [are working] in litigation. As far as the biased situation against women in particular is concerned, it is still very much prevalent in the legal profession as well. However, during my mother’s time it was greater because only a few women were in the legal profession. Women have to work harder to prove themselves again and again, particularly in the litigation sector. There is a condescending kind of attitude towards women in the legal profession. That’s why [maybe] only five or six out of 600 women lawyers could have been designated as senior advocates and achieved the leading positions…. Nevertheless, women lawyers can still make a lot of difference like my mother did by becoming path-breakers. However, it is not easy to survive independently for self-made women lawyers.
Echoing her mother’s experience, Priya Hingorani added, it would have been very difficult for me also to reach my present position without my family support.
Ajeet Singh is an LLB final year student at Law Center-1, University of Delhi., He is also a journalist with 12 years of experience in writing on various subjects, editing and translation (English-to-Hindi), and is currently associated with S-Media Group (www.smediagroup.in) as an assistant editor. He already holds triple post graduate degrees in English, Political Science and Economics, as well as a PG Diploma in Journalism. He was also Fellow, Institute of Constitutional and Parliamentary Studies, New Delhi in 2007. He can be reached at: email@example.com
Editors’ Note: This article is based, in part, on conversations by the author with Ms. Hingorani and her family.