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India Law Journal’s Vishwam Jindal and Vikrant Pachnanda interview Lira Goswami, Founding Partner, Associated Law Advisers to discuss various current legal issues being debated in India. |
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Ques: Being a woman lawyer yourself, what challenges have you encountered in the profession, compared to men placed in similar shoes?
Ans: Except for an initial hesitation in the minds of clients regarding the capability of a woman lawyer, which I encountered in the earlier years of my profession, I have not encountered any other prejudice or challengedue to my gender. Even the initial hesitation quickly disappeared as the interaction with clients became frequent and they realized that competence and capability are not gender based. Having said that, it does not mean that there is no gender discrimination - - it is just that I have been fortunate not to encounter it !
Ques: In recent public interest litigation, the Supreme Court refused to reduce the age of juvenile from 18 to 16 years and upheld the Juvenile Justice Act. What is your opinion on this issue, in light of the 2012 Delhi gang rape incident?
Ans: I support the saying that one who is ‘old enough to commit a crime, is old enough to serve time’. This is more so in case of violent crimes like murder and rape. However what we wish for is not always the law.
The Juvenile Justice (Care and Protection of Children) Act, 2000("Act") protects a person who has not completed 18 years (even by a couple of months or days) and such persons cannot be prosecuted under the normal law. Interestingly, thisAct replacedthe Juvenile Justice Act, 1986under which male children above 16 years where regarded as adults (while girl children were treated as adults on attaining 18 years). In 1989, the UN adopted the Convention on the Rights of Child ("CRC")which treatsa person below18 years as a ‘child’unless the law of the country applicable to the child, has a different age for majority. In 1992, India ratified the CRC and in the year 2000, enacted the current Act,treating both boys and girls below the age of 18 as juveniles. India’s majority age is 18 years.
Given this legislative history (and the insufficient data available on commission of violent crimes by juveniles), the Supreme Court did notstrike down the definition of juvenile under the current law. Although I would have liked the juvenile in the Delhi gang rape case (and all rape cases) to be punished as an adult, nevertheless, theSupreme Court’s decision cannot be faultedfrom a strict legal perspective, as it is the prerogative of the legislature to enact the law and till date, the legislature has still not amended the juvenile age (or the majority age).
However, the data available from several US States indicates a decline in the juvenile crime rate with a change in the law permitting minors to be tried as adults for violent crimes. Therefore, it is time for the legislature to re-visit the law and make an exception for trying juveniles as adults for specified violent crimes (such as murder and rape).
Ques: Do you think the Supreme Court’s decision in Naz Foundation case on S. 377 (IPC) puts India to shame on the international personal liberty map?
Ans: It is most unfortunate that the Supreme Court did not seize the opportunity to pave the way for a more humane treatment of the ‘gay’ community. The Delhi High Court rightly refused to criminalize consensual adult ‘gay’ sex, reading down the law(which prohibits intercourse against the order of nature) as not being applicable to consensual adult‘gay’ sex. Thus, forced sex with adults and sex with minors continue to be illegal. This, according to me, is the right approach, given the changing times and attitudes to sexual orientation. This is also consistent with a ‘gay’ person’s right to dignity and privacy which are an integral part of the constitutional right to life and personal liberty. Hence, it is disappointing that the Supreme Court has decided not to review its decision and has thrown the ball to the legislature’s court.
Ques: In the light of the recent designation of women Senior Advocates by the Supreme Court, do you see this move being a step towards women empowerment at the bar?
Ans: This is an extremely encouraging step towards women empowerment, given the fact that in the last several years, there have been only a handful of women designated as senior advocates by the Supreme Court and the various High Courts. Going forward, I hope that clients and lawyers (both men and women) will frequently engage women senior advocates so that they command respect because of their abilities and gender becomes irrelevant. This will lead to true women empowerment at the bar.
Ques: Do you support the bill that provides for 33% reservation for women in the Parliament? Will this be an effective step in empowering women in India?
Ans: Personally, I am opposed to reservation, particularly in higher education andNational and State level politics. Sweden is a country where women constitute nearly 45% of the Swedish Parliament but there is no reservation. Instead, political parties voluntarily ensure that 50% of the candidates are women. Therefore, ideally, this is what should happen in India, given that there is already reservation for women at the local government/Panchayat level.
Unfortunately, due to the strong prejudice against women, despite reservation in local government, there are few women in Parliament and in the State Assemblies. Therefore, to achieve women empowerment, further affirmative action for a limited time may be necessary. Given the positiveexperience of reservation inPanchayats, the proposed 33% reservation for women in Parliament and State legislatures, couldlead to more inclusive politics; helpchange maleattitudes towards women;encourage younger women (with diverse backgrounds) to join politics andhopefully, leadto more ‘humane’ politics. Therefore, to achieve these objectives, I can persuade myself to support the reservation for women in Parliament and State legislatures but for a limited period (and not for 15 years as contemplated in the proposed Constitutional Amendment Bill).
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