The spark that lit the PIL fire

Enlightening minds Kapila Hingorani
Enlightening minds Kapila Hingorani
Photo Courtesy: Shweta Hingorani

A crowd of children followed Kapila Hingorani in the streets of Cardiff singing, “Here comes the bride”. She had stepped out in a white cotton sari to buy an inkpot on her first day in college. The year was 1947. Sari-clad women in Britain were not a common sight. (Hingorani is believed to be the first Indian woman to have studied at Cardiff.) The young lawyer-to-be returned to her room in Aberdare Hall a bit confused and flustered. Outside the same room today hangs a plaque with her name, calling her a “defender of human rights”. As one of the first women lawyers to practise in the Supreme Court of India, Hingorani went on to bring about a revolution in the Indian legal system. She fought and won the first ever case that led to a unique jurisprudence that gave the poor and disadvantaged access to justice. We know it today as public-interest litigation (PIL).

Hingorani, known in legal circles as ‘The Mother of PIL’, is now 86 and lives in Delhi. She is working on a book charting the history of PILs in India, likely to be out next year. She still remembers a cold January morning in 1979, when her husband, also a lawyer, read out a story in the newspaper about prisoners languishing in jail for longer than the sentences they would have been awarded if they faced trial and were found guilty. Some jailed for ticketless travel had been behind bars for more than 10 years without trial. Women who reported rape and witnesses to crimes had been put in prison simply so that they could be made easily available for trials. In some cases, children were born and were being brought up in prison, while others were left in prison simply because their files had been lost. “These were shocking cases of flagrant human rights violations where people were rotting in jails for no other crimes than their poverty,” Hingorani says, “I knew I had to do something.”

Popularly known as the Undertrial Prisoners case, the outcome of Hussainara Khatoon vs State of Bihar (1979) is recognised as a historical case that changed India. It was the first time the courts allowed a public-spirited individual, who had no personal stake in the matter, to fight for the fundamental rights of a disadvantaged group. The case led to the discovery of undertrials in eight other states. Forty thousand prisoners in jails all over India were set free.

Hingorani says she was relieved because this made the courts more accessible to the oppressed and created awareness of the fact that every single accused has a right to a lawyer at state expense and the right to a speedy trial. The court made it obligatory for every magistrate across the country to inform each accused of this right. Hingorani explains how PIL is a piece of jurisprudence completely different from the Anglo-Saxon tradition of our courts. It made the courts depart from their traditional judicial function of being an arbiter to assume new judicial roles such as that of an ombudsman, a monitor and a social reformer, directing court action to fundamental rights.

After this first major victory, Kapila and her husband Nirmal Hingorani were unstoppable. In the years that followed this first PIL case, they fought nearly a 100 cases, many of them dealing with police torture, dowry crimes, gender discrimination and child labour, that brought relief to millions of people.

The Hingoranis are a family of lawyers. Aman, Priya and Shweta Hingorani, who also practise law, take turns in helping their mother write her book. “PIL was not judge-conceived, judge-thought or even judge-inspired as has been claimed by some,” Kapila dictates. “It was simply the result of an emotional reaction of lawyers who responded to a terrible situation. I am, however, grateful to the activist judges who helped develop the new jurisprudence.”

Though a ferocious lawyer, Hingorani is self-effacing. She has always said that none of her later success would have been possible without her husband’s key inputs that led her to win the first PIL case. She remembers how they had first met as young practising lawyers at the Supreme Court. Even though she had maintained she wanted children but not a husband, she changed her mind for the man who she claims is “more feminist” than she herself was.

Kapila Hingorani was close to her father Krishan Dev Kapila, a teacher. She would write 32-page letters to him from England. He replied with equal enthusiasm. She regrets that the letters were lost but still has an old diary in which she made regular but cryptic notes as a young student. One entry reads:

Friday, 30 January 1948: “Gandhiji passed away. The greatest blow to humanity (Nehruji’s speech). Tried to listen to news from India. Read newspapers, cried over them.”

Hingorani was born and brought up in Nairobi. The eldest of nine siblings, she was the only one who chose to settle in India. The many trips she made to India had left a lasting impression on her and she felt she couldn’t stay away. She visited a village near Mysore where she wrote books for children. “One of the girls there was beautiful, but she had never seen a mirror, so I gave her one so she could see her own face. It was a remarkable feeling,” she says.

Connecting with people all over India was something Hingorani continued doing even as an established lawyer. She was based in Delhi, but some of her most well-known cases were from Bihar. One set of revelations by Hingorani that sent shock waves were the Bhagalpur Blindings (1980), where the police had blinded 33 criminals using needles and acid. The Supreme Court directed the prosecution of the officers and the victims were given medical aid, compensation and pension for life. Hingorani still feels strongly about police reform and says public faith in the police has hit an abyss today. The police force, she insists, needs to be “paid better, trained, educated and sensitised, particularly on issues pertaining to women.”

Hingorani filed a case on behalf of victims of dowry crimes after picking up 11 cases registered with the police. Subsequently, the court directed the setting up of special police cells to deal exclusively with crimes against women. She also sought prohibition of the devadasi practice in Karnataka in 1983 and played a major role in setting up family courts in India. Brinda Karat, CPI(M) politburo member and former vice-president of the All India Democratic Women’s Association, the largest women’s organisation in India, calls her “an indefatigable and militant advocate for women’s rights”. “She was one of the pioneers in the use of public litigation on behalf of women’s movements. She was tough and uncompromising and said it as it was, an asset indeed to the movements for women’s rights.”

Hingorani regrets that the focus of PIL has shifted over the years. She feels it is used too often to obtain collective or diffuse rights on issues such as environment, corruption or arbitrary state action. She believes this has “blunted its edge”, because even though the State must be held accountable for lack of public duties, this can be done within the traditional systems of litigation. Hingorani argues that PIL must aim at directing court action to enforce the fundamental rights of the poor and downtrodden. “Law and access to justice should not be the privilege of a few. That’s the key idea behind PIL and I have fought for it all my life,” she says.

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