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Public Interest LitigationOne Step Forward,

Two Steps Backwards

Madhu Kishwar

Maki Bui and her daughter Sonamuni Kui

With the introduction of theconcept of Public Interest Litigation(PIL) in the late 1970s direct accessfor citizens was provided to the HighCourts as well as the Supreme Court.Progressive judges such as JusticeP.N.Bhagwati began to activelyencourage social and politicalactivists to bring instances ofinjustice to exploited groups andvulnerable individuals directly to thenotice of the Supreme Court. TheSupreme Court had even ruled thatletters to it could be treated aspetitions. Poor prisoners, inmates ofNariniketans, marginalised tribals,bonded labourers and similar groupswhose voices had never reached thecitadels of power began to get ahearing in the highest court of the landthrough social workers and politicalactivists who brought their cases fromremote regions to the country’s apexcourt. For a brief period it appearedthat one didn’t need to hire expensivelawyers or follow long cumbersomeprocedures to get the voice of the poorheard in the Supreme Court. A fewsympathetic judges even madeallowances for the activists who triedto plead the cases directly without themediation of lawyers. However, whatwas most encouraging was that therewas no difficulty in getting some ofthe best lawyers to take on thesecases gratis or for only a nominal fee.

However, if one were to review thevarious high profile Public InterestLitigation cases of the last decade anda half, one would find that, despite allthe fanfare of media coverage, PublicInterest Litigation has very rarelyactually benefited those victimswhose cases were brought to theSupreme Court. This is my impressionnot only from talking to variouspeople and organisations who filedPIL cases, but also from Manushi’sown experience with Public InterestLitigation.

Maki Bui’s OrdealOur first experiment with PIL was

in 1981,when Manushi filed a petitionin the Supreme Court on behalf ofMaki Bui and her daughter, Sonamuni,Ho tribal women of Lonjo Village inSinghbhum district, Bihar. The petitionsought fo overturn the denial of equalinheritance rights to women of the Hotribe. Maki Bui died last year, but theSupreme Court has not yet delivereda judgement on the case, which hasremained pending for the last 13 years.

I met Maki Bui in 1980 while I wastravelling through Singhbhumgathering information on policeatrocities against tribal women. Duringthe course of police raids carried out

on a number of villages, the policehad arrested and intimidated tribalwomen who were taking part in amovement to reclaim forest lands fromthe government. I went to Lonjovillage to meet Pilar, a social workerbased there at the time. Many villagewomen would come to her with theirfamily or health problems. Among thewomen Pilar told me about andintroduced me to was Maki Bui.

When I first met her, Maki Bui wasin her early fifties. She had recentlybeen widowed. Her husband had beena retired police constable who hadserved for many years in other partsof Bihar, often getting transferredfrom one local post to another over

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his long career. Only after hisretirement did he live in Lonjo villagewith his wife and daughter for asustained period of time. Like mostrural women with a husband whoworked outside the village, Maki Buistayed in the village, working on theland through most of the period hewas employed elsewhere. The couplehad no sons, just one daughter. Theirdaughter, Sonamuni, had beenmarried off while her father was stillalive. Many of Maki Bui’s husband’srelatives living in Lonjo village wereamong the most influential families inthe village. This included his elderbrother and the brothers’ sons.

After her husband’s death, MakiBui continued working on the landinherited by him, using herusufructuary rights according to thecustomary law of her tribe. Accordingto this customary practice, Maki Buiwas entitled to occupy her husband’sshare of the family land during herlifetime. After his death, the landwould revert to one of her husband’sagnates (relatives in the male line)rather than her already marrieddaughter, Sonamuni, if thecontemporary Ho custom werefollowed. Sonamuni would have beenallowed limited usufructuary rights inher natal family land only if she hadremained unmarried.

As soon as she gets married, a Howoman loses all rights to her natalfamily’s land, even her limitedusufructuary foothold. This loss ofusufructuary rights is permanent; shenever gets those rights back, even ifher husband abandons herimmediately after her wedding. Animplicit assumption of the customarylaw is that the daughter’s right hasbeen transformed into a right tosustenance in her marital family. Sincetribal marriages are not always stableand men often take a second or evena third wife, women’s usufructuaryrights in their marital household are

frequently violated both legally andcustomarily. In such situations theyend up not being able to claim amaintenance right in either theirparental or marital home. This is animportant reason why a large numberof Ho women stay unmarried. Censusreports, since the early decades of thiscentury have consistently recordedthat about 11 percent of adult Howomen remain unmarried. This is ahigh figure for any society; for Indiait is astonishingly different from thealmost universal rate of marriage inother communities.

A Ho woman’s position as a wifeis particularly vulnerable if she hasno sons. A woman with an adult sonis more likely to have her rightshonoured since a son cannot legallybe disinherited from coparcenaryproperty by his father. In addition, aman is not likely to be able to beat hiswife out of the house if she has themoral and physical support of her ablebodied sons. However, a woman whois childless or only has daughters ishard put to enforce her rights if hermarriage breaks down or her husbanddies.

Maki Bui found herself inprecisely such a situation. After herhusband’s death, his male relativesbecame impatient and began to putpressure on her to give them all rightsto her land, threatening to take awayeven her limited usufructuary rights.Maki Bui faced a particularly difficultsituation because she wanted to passon the land to her daughter, Sonamuni,who had been married into a poorfamily. At first she tried to get herdaughter and son-in-law to come andlive in Lonjo so that they would havesome claim customary to her land afterher death. Customary law does haveprovisions for adopting a son-in-lawfor inheritance purposes. Thestrategy was resented by Maki Bui’shusband’s family, who began tothreaten her with violence.

Worried that her attempts to passthe land on to her daughter and herdaughter’s husband were beingthwarted, she tried surreptitiously tomortgage her land so that she couldgive the money thus raised to herdaughter in lieu of the land itself. Thisstrategy evoked great hostilityamongst her husband’s male relatives.

Pilar (left) with a woman of Lonjo

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One of her husband’s brothers wasthe village mukhia (headman). Theirsense of their own dominance in thevillage made them feel they could getaway with murdering Maki Bui if sheseemed likely to be nearing successin finding a way to pass the land onto her daughter.

The first time I met Maki Bui shewas living in constant fear for her life.She first approached Pilar for help,and through Pilar, me. In my naive,enthusiastic way, typical of many ofour English educated elite who thinkof rights in terms of modernjurisprudence, something to beenforced by the state machinery, Isuggested we challenge theconstitutional validity of thediscriminatory tribal law. Theconstitutional case seemedstraight-forward and clearly in MakiBui’s favour. Non-discrimination onthe basis of gender is a fundamentalprinciple of the Constitution: itappeared that it would be simple toget the Supreme Court to rule thatthose aspects of tribal customary lawthat discriminate against a woman’ sinheritance rights wereunconstitutional. I promised Maki Buithat I would return to Delhi, explorethe possibility of obtaining legal helpfor her, and come back to Lonjo withsome solution to recommend.

That was during the heyday ofenthusiasm for public interestlitigation in India. I consulted anumber of lawyers and people in thejudiciary. They all encouraged me toproceed with my petition, indicatingthat the Court was likely to look on itfavourably.

Petition AdmittedI then went back to Lonjo and told

Maki Bui that we had found a solutionto her difficulties. The Supreme Courtitself would listen to her case. If herpetition succeeded, and we wereconfident it would, then not only her

rights but the rights of millions ofother tribal women would be granted.She seemed enthusiastic. A shortwhile later, Manushi filed a publicinterest case in the Supreme Court onbehalf of Maki Bui and her daughter.This case was admitted to JusticeBhagwati’s court. We felt particularlyelated since he was reputed to besympathetic to the plight of the poorand vulnerable, especially women.

Public Interest Litigation casesattracted a lot of media attention inthose days. The Maki Bui petition,received some coverage in thenational press, but it received far morepublicity in Bihar. Following MakiBui’s petition, which was publishedin Manushi No. 13, many other peopleshowed an interest in joining thisbattle. People from different regionswrote to us say-ing that the situationwas similar among several othercommunities and therefore, theywished to join us in challenging thisdiscriminatory law. One of Manushi’ssubscribers, Mary Roy, who belongedto the Syrian Christian community,wrote to say she had filed a petitionalong the lines of the Manushipetition challenging similardiscrimination against SyrianChristian women. FromMaharashtra’s Dhulia district, SharadPatil, a prominent political activistworking among the tribals, also filedan intervention petition becausemany tribal communities in that areapractised similar denial of land rightsto women. From within Bihar someactivists working with the Jharkhandmovement brought more interventionpetitions involving other tribalcommunities. Maki Bui’s case seemedto have a large ripple effect. Within ashort time, we had succeeded ingetting the issue of women’s landrights debated and discussed amonga whole range of social and politicalorganisations. In Bombay, some

activists of Nivara Hakk Samiti, whowere fighting for the housing rightsof pavement dwellers, wrote to saythat they had decided to demandhouse pattas in the name of women.Framing the petition was not simple,given the sensitive nature of theissues involved. Thus far we onlyknew the situation from the point ofview described to us in discussionswith Maki Bui and a few other villagewomen. I knew next to nothing aboutinheritance procedures and landsettlement patterns and precedents.The petition for relief had to give anaccurate idea of what the customarylaw was at the operational level.Several lawyers who offered to fightthe case for us knew even less thanwe did about these customary laws.

The solutions they suggestedwere, therefore, mostly simplistic andinappropriate. Most of themsuggested we should ask theSupreme Court to apply the HinduSuccession Act (HSA) to resolve thisproblem in tribal law. We explained thatdoing this would be politicallysuicidal. The tribals had learned froma long history of exploitation at thehands of dikus (outsiders) to behostile to attempts at Hinduisation.Dikus have snatched away most ofthe tribal lands by force or fraud withthe active connivance of thecolonialBritish govemmentaswell as of itssuccessor regime, the Government ofIndia. Many tribal difficulties stemmedfrom the period when the Britishgovernment opened this area foroutsiders to start business and miningventures on land traditionally ownedby tribals.Officials Flout Court Orders

Getting the case admitted into theSupreme Court was no problem.Getting the case heard was a far moredifficult matter. The years thatfollowed were full of unending pettyharassment, slipshod court

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procedures and interminable delays.After the case was admitted onAugust 20,1981 the Supreme Courtserved notice to the Bihar governmentto send its response. They alsoordered the Bihar government toensure that during the period that thecase remained before the court anduntil final orders were passed, theywere to see to it that Maki Buicontinued to enjoy her customaryrights as a widow without fear orhindrance. We had expected that MakiBui’s relatives would have lo behavein a more restrained fashion when theygot to know that she had gainedaccess to the Supreme Court and thatif they tried any mischief, we couldpressure the local administration toprovide her protection through theorders of the Supreme Court. But thisproved to be a naive hope.

The Bihar government took anexceptionally long time to file its reply.Finally, when it did reply, the Biharcounsel submitted that the “custom”we had challenged was in accordancewith “natural justice, equity and goodconscience.” The Bihar counsel alsodenied that Maki Bui had beenharassed by her husband’s maleagnates. Their basis for this denialwas an affidavit submitted by theBlock Development Officer (EDO) ofSonua, who claimed to have visitedthe village and found that Maki Buiwas “living in the same house whereshe used to live during the time of herhusband and appropriating all thelands inherited by her late husband,and enjoying the produces [sic]according to her own sweet will....”The BDO asserted that “throughcross examinations among the 16annas raiyats [sic] of the village, Icame to the conclusion that theallegations against the respondents... is totally bosiless [sic] and false.”

We pointed out to the court thatthe BDO never visited the village totalk to Maki Bui or to any other woman

in Lonjo. In fact, on a date prior to thedate the BDO claimed that he visitedthe village, Maki Bui had left Lonjoout of fear for her life and was stayingin her son-in-law’s village. The veryofficer who was assigned the task ofproviding security to Maki Buiseemed to be lying in writing to theSupreme Court. He had probablysummoned Maki Bui’s male relatives,and enacted a drama of threateningthem with a view to extracting a bribein return for lying in their favour lothe Supreme Court. The judgesseemed also to suspect he was lyingbut seemed helpless to take anyaction.

The Bihar government furtheradded that the said custom is “basedon reasonable and sound principlesof natural justice and economicstability of the tribes and as such itdoes not offend Articles 14 and 15 ofthe Constitution.” This assertionclearly showed that the Bihargovernment identified the interests ofthe tribe with that of the men of thetribe. We argued that since womenconstituted half the tribe and were theprimary workers on land, any customwhich was detrimental to their

interests and to their economicstability could not be said to bebeneficial to the economic stability ofthe tribe as a whole. The miserycaused to the women by the denial lothem of inheritance rights in landresulted in destabilisation of the tribalfamily and damaged the communilyas a whole.

Inappropriate SolutionsAt the end of their various and

mutually contradictory submissions,the state of Bihar recommended theextension of Ihe Hindu SuccessionAct (HSA) to the Ho tribals.

The judges also seemed in favourof this measure. But we arguedagainst extending the HinduSuccession Act or, for that matter,even the Indian Succession Act, onthe ground thal it would be detrimentalto the integrity and well being of thetribal community as a whole.

Applying the HSA would beproblematic because all the tribals arenot Hindus. A large proportion areanimists and many have converted toChristianity. Yet, in matters ofsuccession, the customary lawapplicable to them is the same for all,no matter whal their religion. The tribal

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identity is not defined by religionalone. Any extension of the HSA totribal Hindus would mean lhal theChristian Succession Law would haveto be extended to Christian tribals;tribal animisls would need a separateset of laws. This would have theundesirable effect of splitting up thetribe on lines of religion and contributelo destroying their distinctive culluralidentity.

We knew from our experience ofproviding legal aid for Hindu womenthat the HSA offered inadequateprotection to Hindu women.Daughters could be equal inheritorsin self-acquired property, but theprovision allowing fathers todisinherit whomever they pleasedinvariably tended to be used againstdaughters. The distinction in the lawbetween self-acquired andcoparcenary property added furtherloopholes in the Hindu Successionlaws. Sons had rights by birth equalto that of fathers, whereas daughtershad a minuscule share in coparcenaryproperty. Even this tiny share theycould be made to sign away in favourof their brothers or other malemembers of the family. In this respect,the Hindu Succession Act was similarto the discriminatory aspects of triballaw which gave full rights by birthonly to sons, and excluded daughters.Nevertheless, the exaggeratedrhetoric about gender equality,supposedly incorporated in that Actaccording to its advocates, hadmesmerised the educated elite,including most lawyers, into believingthat the reformed Hindu law could beused as a model to show the way toother communities to shed genderdiscrimination. In actual fact, fewHindu women have benefitted fromits provisions.

Extending the Indian SuccessionAct (ISA) to these tribals would beviewed by Hos and other tribals as a

conspiracy against them by theoutsiders. The ISA has a provisionallowing people to will away or selltheir properties to whomsoever theyplease, including people outside theirfamily. This would harm the overallinterests of the tribals by facilitatingthe alienation of whatever land theyhad. The little foothold that thesetribals have retained over parts of theirtraditional landholdings is onlypossible because of the restrictionsincorporated in the Chhota NagpurTenancy Act, which does not allowtribal men to sell or will away their landto just anyone they please. The landhas to pass on to a predetermined setof heirs. It can only be alienated underspecial conditions with thepermission of the DeputyCommissioner, ostensibly for‘development’ purposes Thisprovision has been frequentlymisused in takeovers of tribal landsby large industrial interests, as wellas for exclusion of tribals from theirown lands, and in the exploitation oftribal mineral and forest wealth by thegovernment and its hangers on. Thereare many instances where industrialor other interest groups have usedthese provisions to defraud tribals oftheir lands, for example, getting themdrunk and making them sign awaytheir ancestral rights with the activeconnivance of the governmentofficials. Bringing in the provision forwilling away or freely selling landedproperty along with the IndianSuccession Act would altogethernullify the pitifully small amount ofprotection the tribals had under theexisting law. On the pretext of helpingtribal women, if our petition facilitatedand furthered land alienation, womenwould be as much the losers as men.Therefore, we asked for minimalchanges in the Chhota NagpurTenancy Act and went no further thansaying that the expression “he”

whenever it occurs should include“she” so that women are entitled tofull inheritance rights equal to men.This interpretation would ensure thatthere was no vacuum in the legislationif the provision challenged were heldultra vires. We demanded that “inpursuance of the spirit of the ChhotaNagpur Tenancy Act which soughtto prevent the alienation of tribal landto non-tribals, and to ensure that therights granted to women were notrendered nugatory, the court directthat in the event of a marriage betweena tribal and a non-tribal, the land ofthe tribal must not, on the death ofthe tribal, pass to the non-tribal butmust revert to the natal family of thetribal.”

Under customary law, if a tribalman marries a non-tribal woman, thechildren of the marriage do not inherittheir father’s land which reverts to hismale agnates. We asked for the sameprinciple to be extended to women.

Findings From LonjoIn order to learn for myself whether

allowing full inheritance rights todaughters would indeed prove to bea poor policy, I decided to study Lonjovillage with the help of Pilar and findout from detailed family historieswhether Maki Bui’s case was anexception. I also hoped to learn aboutwomen’s relationship to land underthe existing system. The results werea surprise, even to me. They showedthat:

Maki Bui was far from atypical.A large proportion of women facedsimilar problems and were livingprecarious lives. A large number hadbeen deserted by their husbands, whohad remarried.

Women do not marry far off. In

*For a detailed analysis see, MadhuKishwar, Toiling Without Rights:HoWomen of Singhbhum, Economic andPolitical Weekly, Vol.XXII, Nos. 3,4,5, 1987

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most cases marriages come to besettled within walking distance of thewoman’s natal village. Therefore theargument that after marriage womencould not exercise rights over thefamily land does not hold good.

Men migrate away to far offplaces much more often than women;the primary responsibility for bothagricultural and household work restswith women. At least eighty percentof agricultural tasks are performed bywomen. Men’s participation isconfined to occasional tasks such asploughing.

At this point the case was due fora preliminary hearing. For about a year,it kept appearing in the list foradmissions rather than where it shouldhave appeared, on the list forarguments. Every time our lawyerswould draw the attention of theSupreme Court to this error, the judgeswould order that it be listed in theproper slot; but despite the order,somehow, the next time the lists wereissued, the case would be back in thewrong list. Our lawyers attributed theerror to a typist’s mistake. However, ifa typist can go on making the sameerror so many times in the face ofrepeated directions from the court tocorrect it, and not be called to accountfor causing such an immense amountof precious time to be lost in suchcases, then there is somethingseriously wrong with the functioningof the simplest aspects of the court. Ittook about two years for thepreliminary hearing and notices to besent to the Bihar government.

Unofficially, we were told by thecourt registrar’s office that they hadlost all five copies of the case we hadprepared and submitted to the court.We were advised to replace the filesquietly without comment if we wantedthe case to be heard. There was nopoint in kicking up a fuss. We did aswe were told.

Getting a HearingThere were many more problems

to come. Between 1983 and 1985, the

case was listed for a final hearingnumerous times but was not heardbecause it was placed too low downon the list. Therefore, its turn wouldnot come before the court adjournedfor the day. During this period, theBihar government kept on seekingadjournment after adjournment on themost flimsy grounds. The courtcontinued granting thoseadjournments even though it was clearthat they were resorting to blatantdilatory tactics.

However, on each of the dayswhen the case was listed, even if itwas on the wrong list or in a spot toolow on the list to get heard, some ofus from Manushi would be presentall day. Several times when the courtlisted the case, I was out of Delhi andwould cut my trip short before mywork was finished and rush back toDelhi only to find that our turn nevercame.

In the meantime, Maki Bui wasgetting desperate. After the EDO’senquiry, her in-laws’ family began toharass and intimidate her even morefor having dared to take them to court.On one occasion, when it seemed thatthe case might actually be heard, we

arranged for Maki Bui to come to Delhifor the court hearing in the hope that:

she would see for herself thatthe case was being argued and wouldfeel reassured that we were not lax;

we might somehow get thejudges to notice her in court. If thelawyers told the court that this poorvillage woman had come all the wayfrom a little village in south Bihar toseek justice, perhaps they might feelmoved enough to expedite the case;and

we might be able to arrangesome newspaper publicity regardingthe case by requesting somesympathetic journalists to interviewher and demand the case be heard anddecided upon without further delay.

Maki Bui was indeed veryimpressed with the physical grandeurof the Supreme Court, and told me,”Iam sure such a big court will give mebig justice.” However, her case nevercame up for hearing on that day.Seeing her sitting in a sort of daze inthe court, I realised that even if thecase had come up for a hearing, thiswoman could not possibly haveunderstood what was being arguedon her behalf. For the judges, she was

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not a human being but a case number.Maki Bui’s fate depended on peoplewho neither knew her language norconsidered her worth their notice.

Our attempts to organisenewspaper publicity on her behalfwere also a flop. She was neitherglamorous nor colourful enough forany newspaper reporter or editor topay attention to her. While severalnewspapers would willingly publishinterviews with me on this case, noone found her worth a conversation.She, however, wentback to Biharunder the illusion that we would soonhave a solution for her.

We renewed our effort to get hercase expedited. The Bihar governmentkept requesting postponement afterpostponement on one pretext or theother. In the meantime, we got newsfrom Pilar in Bihar that Maki Bui hadbeen even more aggressivelythreatened by her relatives andconsequently had to leave Lonjo andgo far away to her daughter’s village.Maki Bui had started off by askingour help to enable her to pass on herpiece of land to her daughter. Insteadof assisting her to get more than theright which discriminatory customarylaw allowed, her coming to theSupreme Court had actuallyendangered her life even further.Who Cares for Court Orders?

We filed a petition allegingcontempt of court against the Bihargovernment for violation of the court’sinterim orders that Maki Bui be offeredprotection. They had submitted anaffidavit assuring the court that MakiBui’s traditional rights were not beingtampered with in her village. Weinformed the court that she had in factbeen forced to flee Lonjo and the Bihargovernment had done nothing toprotect her and her rights in the land.I felt responsible for havingsuggested the legal route to her andthus helping bring her troubles to this

awful point. The then Chief Justice,Ranganath Mishra, himself heard ourcontempt application. I joined with ourlawyers in pleading that there wasdanger to her life, that the Courtshould take action against the Bihargovernment for having flouted theSupreme Court’s interim order. Eventhough by now our expectations ofthe Supreme Court had been scaleddown considerably, we were still notprepared for what happened. JusticeMishra said openly in a packed court:“We can pass a contempt order if youinsist. But what good will it do for thepetitioner? The Bihar government orits police are not going to heed it anymore than they did our original order.Better that you advise that old womanto continue staying with her daughterso at least she is more safe than in herown village. Or else bring her to Delhiand keep her with you so she is safe.”(Justice Mishra’s comments quotedabove are from my notes. They werenot included in the written record ofthe Court). Justice Mishra prevailed

upon us not to press the contemptpetition but reiterated the courts orderthat the superintendent of police,state of Bihar, should provideadequate protection to Maki Bui andher daughter and ensure theirpersonal safety.

What was the point of fighting thiscase for so many years if the highestcourt of the land was admitting thatits orders carried no weightwhatsoever with the government ofBihar, that even a BDO does not haveto pay any heed to it? What goodwould any final judgement be in sucha situation? Even if the Supreme Courtactually gave a judgement in MakiBui’s favour, there was no machinerywhich could be made to implementthat judgement, even in such a simplecase of one poor old woman in a tribalvillage in Bihar. We had approachedthe Supreme Court in the hope that

its judgement would help millions ofwomen, not just Ho women but othertribals as well. Now the Supreme Courtwas itself admitting that it could noteven provide this one woman with anyprotection.

In the course of the hearing, thejudges also suggested to the Bihargovernment that it should consideramending the provisions in Sections6 and 7 of the Chhota Nagpur TenancyActon along the lines we hadsuggested with a view to conferringinheritance on the female heirs. TheBihar counsel agreed in February 1987to consult the appropriate authorityand come back with a proposal.Several adjournments later, in August1987, the state of Bihar submitted anaffidavit through a section officer.Revenue and Land ReformsDepartment of Bihar, saying that someof the deputy commissioners anddivisional commissioners had not yetsent their comments on the matter. Butthe Regional DevelopmentCommissioner of Ranchi had given hisview against the proposedamendment. “Since this amendmentmay have very far reach-ingconsequences, affecting the age oldcustoms of the tribal population, thematter has been referred to the BiharState Tribal Advisory Council... whichis likely to meet and consider theproposal in near future. Only onreceipt of their recommendations stategovernment would be able to finaliseits views on the subject.”

Years passed. The Bihargovernment showed no inclination topropose a solution and the SupremeCourt insisted on forever waiting forthe Bihar government’s proposal.Even so, we had not yet given up.Over the years, I met with severalbureaucrats connected with Bihar inorder to find out if they could suggestways that we could get the judgementfrom the Supreme Court to take effectif and when it was delivered. None of

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them could make any workablesuggestions, even though they wereamong the most senior and skilled ofour civil servants.

Maki Bui is DeadLast year we got the news that

both Maki Bui and her daughter,Sonamuni, were dead. We wereunable to maintain touch with MakiBui after Pilar moved out of Lonjodistrict to another district in Bihar. Itis likely that Maki Bui gave up hopeand did not think it worthwhile tomaintain contact with us.

In September 1993 Pilar and Ivisited Lonjo to find out the causesof Maki Bui’s and Sonamuni’s death.It was easy to get information aboutMaki Bui from Lonjo village residentsbecause Pilar knew several familiesvery closely. But no one in Lonjo knewhow Sonamuni died. We found thatMaki Bui had left her daughter’svillage some years ago and had cometo stay in a village within walkingdistance from Lonjo - probably fearingthat if she stayed in a far away villagethen the chances of her claiming herland would become altogether dismal.While living in that village she fell illand became very weak.

At this point, when it was clearshe was going to die soon, herbrother-in-law’s family insisted onbringing her to their house in Lonjo.She was extremely unhappy stayingwith them because it was they whohad initially driven her out of herhome. She kept requesting some ofher women friends in the village totake her to their home. But no onedared interfere for fear of annoyingthe mukhia’s family. He was probablykeen to have her die in his house tostrengthen his claim to her land. Herdaughter, who had been no more than30 to 35 years old, was already dead.No one in Lonjo knew how she died.The case is still dragging on, eventhough the final hearing andarguments were completed in 1990.The Supreme Court continues to insistthat the Bihar government must comeup with proposals listing what theyintend to do regarding thediscriminatory provisions. And theBihar government keeps onprocrastinating on one ground oranother, seeking adjournment afteradjournment. Even though it wasobvious that the Bihar governmentwas deliberately dragging the case,

not once did the Supreme Court refuseto grant adjournment at the requestof the Bihar counsel

This is not the only legal case weworked on that led to a mockery ofjustice. Among many others, I cite afew examples:

The 1984 Riots CaseIn early 1985 Manushi filed a

petition in the Supreme Courtdemanding action against those in theCongress(I) who were alleged to havemasterminded the 1984 massacre ofthe Sikhs. (For details see ManushiNo. 25, 1984) Our petition was filedagainst the Indian State, the HomeMinister and the Home Secretary asthe officials who assume specificresponsibility for the preservation ofthe safety of life of Indian citizens.Also included as respondents werethe Delhi police through the policecommissioner, the Congress (I) Partythrough its president and generalsecretaries, including the Congress (I)Lok Sabha members from Delhi. Westated that by organising a systematicmassacre of the Sikhs, attacking theirhomes, businesses and religiousinstitutions, the Congress (I) leaders,with the active help and connivance

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of the city administration, especiallythe police, had violated thefundamental rights of the entire Sikhcommunity. These included, right tolife (article 21), right to move freelythroughout the country (19( 1 )d), topractice any profession or carry outany occupation (19(l)i); to reside andsettle in any part of the country(19(l)e) ; freedom of conscience andthe right to freely profess and practiceany religion. All these and otherfundamental rights of the Sikhcommunity were violated by the State,which entered into an illegalconspiracy with organised gangs ofhoodlums.

We appealed to the court to: order an independent enquiry

into all the heinous crimes committed,to uncover how the orders were given,and by whom;

orderan interim suspensionfrom office of those who were leadingthe cover up operations;

require that the enquiry resultin the enunciation of basic principlesthat should govern the trials of theseviolators of constitutional rights;

pending the court’s decision,freeze all assets of these organisationsand individuals under enquiry;

offer institutional remedies toreturn the country to Constitutionalrule;

provide guidelines for thepayment of punitive fines, reparationsand compensations from the frozenassets of the extra governmentalorganisations and individuals who areconvicted of having participated inthe murderous attacks on the lives andConstitutional rights of Indian citizensbelonging to the Sikh minority. Thispetition was unceremoniouslydismissed by a bench presided overby Justice Ranganath Mishra withoutas much as a cursory hearing. Luckily,this issue has been taken up by anumber of civil liberties anddemocratic rights organisations, whohave succeeded in at least keepingthe issue alive, though they have notyet succeeded in getting the guiltypunished.Guardianship Act Challenged

In yet another case, in 1986Manushi filed a Public InterestLitigation case on behalf of NeelaDeshmukh challenging thediscriminatory provisions of theHindu Minority and GuardianshipAct. Neela Deshmukh was employed

as a senior social welfare officer withWalchandnagar Industries. She andher husband D.S. Mukherjee had fileda petition for divorce by mutualconsent under section 13(b) of theHindu Marriage act. Their marriagehad been dissolved by a decree ofdivorce by mutual consent on Sep.12, 1983. In the mutual consentpetition, the parties had agreed on theterms regarding the custody of theirtwo minor children which wereincorporated in the decree of divorce.Subsequently, herhusband filed anapplication in the court for revokingthe orders passed by the court withrespect to the custody and educationof the two minor children - a daughteraged 14 years and a son aged 8 years.At that time the two children wereliving with, and were supported by,Neela Deshmukh. Her husbandchallenged her custody rights simplyto harass her. That is when Neelaapproached Manushi for help. Wefiled a Public Interest Litigation casechallenging all those guardianshipprovisions (section 6,7 and 9) of theHindu Minority and Guardianship Actof 1955 which discriminate againstwomen.

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The act provides that in the caseof a minor boy or an unmarried girl,the father will be considered the“natural guardian”. However thecustody of a minor child who has notcompleted the age of 5 years shallordinarily be with the mother. Likewisethe Act provides the mother’s right tohave precedence in case of“illegitimate” children.

Our petition argued that there isnothing in “nature” to support apresumption in favour of the father inmatters of guardian ship. In fact, itcould easily be argued that it is more“natu-ral” and more advantageous forthe welfare of the child to make apresumption in favour of the motherin matters of guardianship. This lawdoes not uphold any “natural law” butrather bolsters an inegalitarian socialstructure which gives precedence tomen over women. We argued thatboth parents should have an equalright to guardianship of their child.Given that men usually have morefinancial power and social sanction,in the event of a matrimonial dispute,the man is often in a better position toseize the children as well as control ofthe property, including the woman’spossessions.

In a number of custody cases theinterests of children and their wishesare usually ignored. Many men usethe threat of separating the wife fromthe children as a weapon to blackmailher into accepting maltreatment inmarriage. By declaring the father the“natural” guardian, the law sets up apresumption in his favour. This meansthat whenever there is a dispute overguardianship, the mother has to sue.The father need not sue because if nosuit is filed, he is presumed to be thenatural guardian.

Section 6{b) makes the mother thenatural guardian of an illegitimatechild and after her the father. If thereis indeed some “natural principle”,entitling the father to be the “natural”

guardian of his child, in preference tothe mother, how and why should the“illegitimacy” of the child contravenethis principle? “Legitimacy” is not a“natural” but a purely social categorycreated by the social institution ofmarriage. The only purpose served bysection 6(b) is to absolve the fatherof primary responsibility, financial andlegal, for a child he wishes to disown.Sections 6(a) and 6(b) violate the spiritof articles 14 and 15 of theConstitution by discriminating in anirrational way between legitimate andillegitimate children.

Section 13 of the Hindu Minorityand Guardianship Act, 1955, laysdown that “the welfare of the minorshall be the paramount considerationin the appointment or the declarationof any person as a guardian of a Hindumi-nor.” If the welfare of the child is,under section 13, the “paramountconsideration” in the declaration ofany person as a guardian, then aguardian can only be declared in eachcase on the basis of the actual welfareof that particular minor, which is aquestion of fact. There is no evidencewhatsoever that the welfare oflegitimate children in general lies oreven tends to lie in their having theirfather as guardian or that the welfareof illegitimate children lies or tends tolie in having their mother as theguardian, or that the welfare of marriedminor girls lies or tends to lie in havingtheir husband as guardian. We askedthat:

since sections 6, 7 and 9 of theHindu Minority and GuardianshipAct, 1955, are violative of the rightsof Hindu women under articles 14 and15 of the Constitution of India, theyshould be declared null and void;

the court should give amandatory order directing therespondents, their officers, servantsand agents, to refuse to give effect tothe said sections of the Hindu

Minority and Guardianship Act; the court should declare that

henceforth both parents shall beconsidered natural guardians of theirminor children, legitimate orillegitimate, in preference to others,including spouses of the said minors; the court should declare that

in the event of any dispute, eitherparent may sue under the Guardiansand Wards Act, 1890, and that thewelfare of the minor (not defined asmaterial welfare alone), shall be theparamount consideration in declaringone or the other parent as guardian ofthe minor.

Adding Insult to InjuryAfter nearly eight years of being

buried in oblivion, this writ petitioncame up in the Supreme Court onJanuary 12,1994 before a benchconsisting of Justice Kuldip Singh andJustice Yogeshwar Dayal. Apart fromsummarily dismissing the writpetition, the judges made somederogatory comments as well. JusticeKuldip Singh repeated several timesthat this was “luxury litigation” as itwas filed by a women’s organisationand by the woman who had thecustody of the children at the time offiling the petition, and hence thepetitioners could have no grievance.

During the course of the submis-sions, the judges observed that thefather was “rightly” the guardian of aminor child as he was the bread earner.This despite the fact that NeelaDeshmukh had been the mainbreadwinner of the family. The courtdid not allow Manushi counsel GeetaLuthra to make any furthersubmissions, stating that they werenot interested in knowing the changesthat had come about in English lawon which the Hindu Guardianship Actwas based since this case, in thejudges’ view, was luxury litigation.They insisted that articles 14 and 15promising gender equality were

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inapplicable as there was no genderdiscrimination involved in this case.Justice Yogeshwar Dayal furthercommented that in England there isno concept of father or mother so theydid not want to hear of English law.The judges declared that in practicethey were sympathetic to women butif they persisted in coming to the courtand asking for too many amendments,sympathy for women would go away.According to Justice YogeshwarDayal, being a mother or a father wasa duty and not a right. Since theconstitution was concerned withfundamental rights and not duties, itsprovisions do not apply to sections6, 7 and 9 being challenged byManushi, which provide that thenatural guardian in the case of alegitimate child is the father, while it isthe mother in the case of an illegitimatechild.

It is noteworthy that no counteraffidavit or reply had been filed bythe Government of India, on whomrested the responsibility of defendingthis law or agreeing to amendments.This despite the fact that the writpetition had been admitted and rulenisi had been issued eight years ago.The government counsel was not

asked to explain why they had noteven bothered to file a response. Thejudges took it upon themselves toargue on behalf of the respondent.Justice Yogeshwar Dayal went to theextent of declaring that the petitionshould not have been admitted in thefirst place.

This was not the only petition ofthis type pending in the court. Severalother similar petitions have been filedover the years by aggrieved mothers.These particular sections of theConstitution have kept womenagitated all over the country. Mostimportant of all, the Law Commissionof India, in its 133rdReport, submittedin 1989, looked into this issue andcame to the conclusion that the saidsections were violative of theConstitution and needed to beappropriately amended. The SupremeCourt did not even give Manushi’slawyer a chance to present all thesefacts before them.Who Benefits From Courts?

Over the years, only in rare caseshave we been able to provide amodicum of help to a few individualwomen through the law courts. Byand large, our experiences in thecourts have been frustrating and

demoralising, especially when thelitigants are poor and vulnerable andcome into the legal system via thePublic Interest Litigation route.

We were not the only group to beso misled by the rhetoric of theproponents of public interestlitigation. Scores of activists all overthe country enthusiasticallyparticipated in the rush to enter PublicInterest Litigation cases in theSupreme Court. It gave us all anexaggerated sense of our importanceand potential influence in makingchanges on basic issues. Judges weregoing out of their way to encourageactivists to bring such cases to them.Lawyers were more than willing tofight these cases free of charge.Activists like us only had to take thepleasant role of heroic interveners.My impression is that the outcome inthe overwhelming majority of thesePublic Interest Litigation cases wasnot substantially different from thatof the Maki Bui case.

The only “beneficiaries” of thiswave of cases have been theprogressive judges, lawyers andsocial activists. Many of us made aname for ourselves as defenders ofthe rights of the poor and the

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powerless without going to too muchtrouble or expense We read out reportsof these cases at internationalconferences on human rights. Wereceived a great deal of positive mediapublicity both within India andabroad. Despite all the praise thesocial activists received for initiatingPublic Interest Litigation, the actualvictims on whose behalf we raisedthese issues have not often foundtheir situation improved. Indeed,many of them found themselves inever worsening circumstances as aresult of agreeing to participate ascomplainants in these celebratedcases. The press publicity made themmore vulnerable at the local level forthey came to be big threats to the localvested interests.This has caused agreat deal of resentment at the locallevel against high profileinterventionists coming from Delhiand other big cities and state capitals.

For instance, there is no way Icould have provided day to dayprotection to Maki Bui. Byencouraging her to enter into aheightened confrontation with herown community and giving her theillusion that my privileged status aspart of the urban elite withconnections in Delhi could offer her ameasure of protection, I was in effectendangering her life even more. Forher, the goodwill of as many parts ofher community as possible was hermain source of protection in adangerous situation. By going tocourt and seeking redress outside thecommunity and hoping to use thegovernment apparatus with itshypocritical rhetoric of equality andsocial justice in her favour, she cameto be perceived as a threat by her ovncommunity. Her relatives probablyfound it relatively easy to neutralisethe government functionariesexpected to ensure Maki Bui’s safetywith bribes and intrigues. All our highpowered petitions in the SupremeCourt could not combat the local

forces of the influential family and acorrupt and inefficient localadministration.

Am I suggesting that we leave thepoor and vulnerable to their fate, thatwe make no effort from the outside tostrengthen their rights? Far from it. Infact, I think we should redouble ourefforts to provide whatever assistancewe can to those subject to theseinjustices. But we must seek moreappropriate methods, those that aremore likely to be helpful and do notclaim to accomplish more that they arecapable of achieving. Outsideintervention often heightens theconfrontation level without ensuringadequate protection for theconcerned individuals or groupsespecially if we are relying on thegovernment to do the job. No matterwhat the official rhetoric, in actualpractice the government functionariesinvariably tend to protect thewrongdoers because that bringsbribes. Yet we the urban activistscontinue to rely on the samegovernment machinery simplybecause we ourselves are beneficiariesof this sifarish raj (getting our workdone through influence at the top).But what may work for well connectedpeople like us does not work for thepoor and vulnerable. Thus while thehigh profile well connected activiststhemselves do not face much personalrisk, those that we lead into a highpitched battle end up becoming evenmore vulnerable. We think we canneutralise local pressure bynewspaper publicity. However, whilethis may help make us more knownand famous, it rarely succeeds inmaking officials behave better. It isoften counter productive - the morethe newspaper publicity, the higherthe bribes extracted by local officialsto protect wrongdoers.

Why Courts Fail in JusticeThe existing legal machinery

exists mostly to tyrannise and harasspeople rather than to enforce laws or

deliver justice. Some of itsoutstanding flaws result from theorigins of the system; this legalmachinery was originally created tofacilitate colonial rulers in imposingtheir will on the people. It was of tenused to snatch away their propertyand other rights. The legal system isalien to our land and insensitive tothe needs of our people. It remainedessentially the same even afterIndependence and was allowed tospread its tentacles much more widelythan during the British days. To makeany real headway we need to changesome of its basic flaws:

The laws are framed andadministered by individuals who donot understand basic facts about thediverse life situations and customs ofour people. The English educatedadministrators, parliamentarians,judges, lawyers, police officials andothers who are part of this legalapparatus are often as ignorant aboutthe actual ways of life of the peopleas were the English rulers after whomthe present rulers modelledthemselves. There seems very littlerelationship between this country’sformal statutes and the actual socialarrangements that govern economicand social relationships within variouscommunities and occupations. Thestatutes are based on principles ofBritish jurisprudence that have verylittle in common with the traditionaldispute settlement methods that stillmaintain some of their legitimacyamong many communities in India.Unless our laws reflect a measure ofsocial consensus, they will continueto be breached.

Our laws are written in archaicEnglish and are thus beyond thecomprehension of even most of theEnglish educated Indians, leave alonethe hundreds of millions who do notknow English. Our courts need toswitch over to careful use of locallanguages and dialects.

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The procedures and legalprovisions are so cumbersomethat dependence on lawyersbecomes inevitable. Once the caseis handed over to lawyers, apetitioner becomes a helplessspectator in the whole legalproceeding that may decide theperson’s fate. It also makes thesystem too expensive and thusbeyond the reach of the majorityof the people. Clearly written andlogically presented laws shouldenable us to discourage andminimise the use of lawyers.

The courts are physicallydistant from the people. The longdelays and erratic functioning ofthe courts act as another sourceof harassment against those leastable to bear the burdens offrequent attendance at theselocations. Travelling the longdistances to court involves needlessexpenditure leading to economic ruinof those few among the poor whoseek relief from the courts.

The judgements are deliveredon the basis of what is proven to havehappened according to the artificialand frequently petty rules andprocedure dominated decisionmaking processes. The system is runby poorly trained and meagerlyendowed court officers and judges.The true account of what actuallyhappened has little effect on thecourt. The burden of proof falls mostoften on the victim. In cases wherethe victim is helpless and poor andcannot hire smart, expensive lawyersthe person can lose the case eventhough in the right. Crooks can oftenget away with fraud and even murderif they have lawyers smart enough toknow how to find the multitude oftechnical loopholes in the law. Thefacts of the case come to matter farless than the minute procedural errorsthat astute lawyers know how toavoid. If people are made to argue

their case personally they are lesslikely to be able to argue only on thebasis of technicalities rather thansubstance. If cases are decided locallyit will be more difficult for the litigantsto lie openly and blatantly.

Even in those rare cases where thecourts decide a case correctly infavour of a poor and powerless victim,that person seldom gets the reliefsprovided for in the judgement. Thecorruption and lawless behaviour ofthe police makes them totally unfit asan instrument for enforcing thesejudgements. We need to focus ourattention on evolving a functioningenforcement machinery for courtjudgements.

There are no effective laws toensure that the governmentapparatus, the judges, the police andthe bureaucrats behave lawfully.There are no enforceable provisionsfor an aggrieved person to get a judgepunished in those instances where hegives a blatantly false judgement fora bribe. There are few instances wherea police officer is punished for

lawless, corrupt behaviour, or forsabotaging the court’s verdict.There are few instances ofpunishments given for criminaldelays in the law courts. Unlesswe overhaul our administrativemachinery and enshrine principlesof accountability in it we will notbe able to alter the existingsituation whereby judges keepgetting their salaries and perks,lawyers keep making lots ofmoney, and innumerablegovernment functionaries - fromcourt peons and clerks tomagistrates - keep drawing securesalaries and extracting largebribes while the citizens end upgetting more fleeced with everypassing decade. The task ofreforming the legal machinery inour country will require a

widespread effort. Severalorganisations are already involved inthis work. Manushi is attempting asmall step in this direction byapproaching the Supreme Courtasking that the right to a speedy trial,which the Court has declared is afundamental right, be made actuallyoperative. Our petition to be filed byIndira Jaisingh, demands thefollowing:

the right to speedy trial,expeditious hearing, and judgementwithin a time bound program - noadjournments are to be permitted afterthe schedule of hearings is fixed;

the party found responsible fordelays should be made to pay heavycosts for harassment caused to theother side; if the orders of the courtare not complied with, the case shallbe heard against the other side expane; and

public officers responsible fornon-compliance with court orders bemade to pay the costs of their non-compliance from their personalsalaries.