On 8 and 9 January 1979, The Indian Express published two articles by KF Rustamji, who was then a member of the National Police Commission. The articles were based on information he had gathered from 19 undertrials languishing in the district jails of Patna and Muzaffarpur in Bihar, including six women, and the inhumane conditions they were living under.
These undertrials “had been in jail awaiting trial for periods that were longer than the time they have spent had they been charged, tried, convicted and given maximum punishment for the offence”.
Little did Rustamji know that a couple in Delhi, Pushpa Kapila Hingorani and her husband Nirmal Hingorani, read his articles and were “sickened and revolted” by the plight of these undertrials. (Above images of respected Supreme Court lawyer Kapila Hingorani who ushered in the PIL revolution courtesy Cardiff Law and Global Justice/Aman Hingorani)
As lawyers of the Supreme Court, they wanted to represent these prisoners, but were constrained by the fact that they didn’t have power of attorney and weren’t their ‘next of kin’. Nonetheless, they proceeded with filing a habeas corpus petition on 11 January 1979 on behalf of the prisoners under Article 32 of the Constitution. At the time, the Supreme Court rules did not permit the filing of a habeas corpus petition based on newspaper reports.
Irrespective, they filed the petition registered as Hussainara Khatoon [one of the undertrials listed in Rustamji’s articles] v. the State of Bihar and awaited the court’s decision.
Normally, the court would have rejected such an application, but this was a unique period in Indian jurisprudence. Public memory was still fresh about the Supreme Court’s dire failure to uphold fundamental rights during the Emergency in 1975. The court needed to regain the reputation it had lost as a protector of civil liberties. Thus on 22 January 1979, judges on the Supreme Court bench, who were convinced by the gravity of the situation presented in Rutamji’s articles, issued a notice to the Bihar government.
After hearing intense arguments from both sides, a Supreme Court bench led by Justices PN Bhagwati arrived at a judgement on 9 March 1979.
In an article for a book titled ‘Punishment and the Prison: Indian and International Perspectives’, Kapila Hingroani wrote, “While all the above named undertrial prisoners were released on their personal bond without any monetary obligation…the Court…went on to read a right to speedy trial as being implicit in the right to life and personal liberty enshrined under Article 21 of the Constitution.”
The court also relied on the “Directive Principles of State Policy contained in Article 39A to hold that every accused who was unable to engage a lawyer and secure legal services on account of reasons of poverty or indigence had a right to a lawyer at state expense”.
Not satisfied with merely winning this case, Kapila Hingorani would go on to file a series of petitions on the plight of such prisoners languishing in jail without trial and brought eight state governments before the Supreme Court.
Eventually, according to Hingorani, “Hussainara Khatoon’s case resulted in the release, though interim orders, of about 40,000 undertrial prisoners out of the estimated 120,000 undertrials throughout the country within four months of the filing of the first petition”. In addition to winning these cases, she also brought into existence a revolution in the Indian legal system popularly known today as Public Interest Litigations (PILs).
In her words, the Hussainara Khatoon case “made the highest court of the land accessible to the most impoverished” for the first time. Hingorani passed away on 30 December 2013, but her legacy remains cemented as the “Mother of Public Interest Litigation”.
Defending the rights of the voiceless
Born on 27 December 1927 in Nairobi, Kenya, Kapila Hingorani was the first woman from the Indian community residing in the city to leave for the United Kingdom for higher studies in 1947. It was her father, an educationist and social reformer, who encouraged her decision to study law at the University College Cardiff. She eventually qualified as a Barrister from the Honourable Society of Lincoln’s Inn. Inspired by the ideals of Mohandas Karamchand (‘Mahatma’) Gandhi and the Indian Independence Movement, she often visited India.
For a period in the 1950s, she even taught at the prestigious Jamia Millia Islamia University and served as the warden of the girls’ hostel. As warden, according to a 2014 article in The Indian Express, she allowed girls to venture out in the evening, “a freedom unheard of in those days”.
In 1961, she settled down in Delhi and began practising in the Supreme Court. At the time there were only three women lawyers at the apex court. But before she began her independent practice, she assisted India’s first Attorney General, MC Setalvad, and appeared in a variety of landmark cases that strengthened the contours of constitutional law in India.
Serving the marginalised
Following her success in the Hussainara Khatoon case, she received a letter containing horrifying details from a lawyer in Bihar’s Bhagalpur district on 28 September 1980.
In the letter, it was alleged that the police had blinded suspected criminals with acid poured into their eyes. Based on the letter, she filed a writ petition in the Supreme Court, which deputed its Registrar to visit Bhagalpur and investigate the particulars of this case.
According to Hingorani, “It was found that at least 33 persons had been blinded by the police using needles and acid that burnt the eyes, which had then been bandaged with cotton soaked in acid and left to rot.” Appalled by the police’s depravity in this case, the court called this “a crime against the very essence of humanity”. The court eventually directed the Bihar government to not only quash the case against these blinded prisoners but also “bring them to New Delhi, fund their medical treatment and formulate a scheme for their rehabilitation”.
Based on the directives issued by the court in the Anil Yadav v. State of Bihar case, the prisoners received compensation worth Rs 15,000 from the state government, Rs 15,000 from the Prime Minister’s Relief Fund and a monthly pension for life of Rs 500, which was increased to Rs 750 in 1995. Moreover, the court ordered the speedy prosecution of the guilty policemen and doctors involved in “the barbaric act for which there is no parallel in civilised society”.
Until her demise in 2013, Kapila Hingorani, along with her husband Nirmal, took up almost 100 PIL cases pro bono, providing relief to millions of people.
Some of her cases also resulted in landmark policy decisions as well. In 1981, she filed a petition on behalf of 11 victims of dowry-related crimes, which resulted in the Supreme Court setting up special police cells to investigate crimes against women.
Among the last significant PILs, she filed was in 2002-03 regarding the non-payment of salaries to public sector employees working in various state-owned corporations in Bihar. In the case, she argued that in certain instances salaries hadn’t been paid for a decade resulting in starvation deaths and immolation attempts. The court directed the State government to pay the crores of rupees in arrears of salaries to these employees as interim relief.
Going further, she also spearheaded the movement to establish Family Courts and even took the matter to then Prime Minister Indira Gandhi. Eventually, Parliament passed the Family Courts Act, 1984. Today, these courts assist in the settlement of disputes relating to marriage and family affairs. Hingorani was even part of the Ministry of Health committee that helped draft the law to ban sex determination tests that often resulted in female foeticide.
But her life’s work wasn’t just limited to legal work she did for others. According to her daughter Shweta, “During the riots of 1984, mom had organised a collection centre at our home, and we later went to Kingsway Camp in north Delhi to distribute the donated articles to riot victims.”
What stood out about Hingorani was her dedication to high standards of fairness and integrity. According to the 2014 article, when the Hingorani family was living in the upscale Greater Kailash area, inspectors from the city corporation gave her a challan for a water leak resulting from blocked pipes. The inspectors told her that they would let her off if she paid a bribe.
Not only did she refuse to pay the bribe, but also fought a case against the issuance of the challan. The case went on for about five years and they won it in the end.
In 2017, Kapila Hingorani became the first woman lawyer to have her portrait unveiled in the Supreme Court library. Despite her legacy as a soldier of justice, the tool she used to help the poor and marginalised, PILs, has lost much of its sheen.
With the emergence of PILs came a Supreme Court which went much above its remit resulting in “a self-conscious departure from the very fundamental principles of modern law,” according to legal scholar Anuj Bhuwania in his book ‘Courting the People’.
‘Punishment and the Prison: Indian and International Perspectives’ Edited by Rani Dhavan Shankardass; Published in 2000 courtesy Sage Publications
‘In Public Interest’; Published on 2 February 2014 courtesy The Indian Express
Website for The Kapila and Nirmal Hingorani Foundation
‘Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar’ courtesy India Kanoon
(Edited by Yoshita Rao)