Above the law?

Several cases of sexual harassment involving judges and interns in the Supreme Court highlight the need for regulations that can address gender insensitivity and inequality in the country’s highest court.

The Supreme Court of India. It remains a male bastion still.

MORE than a decade after the historic Vishaka judgment laid down a framework for addressing sexual harassment at the workplace, the Supreme Court of India on November 26 finally constituted a panel to look at the issues of harassment in its own precincts. The recent allegation of sexual harassment against a former Supreme Court judge by a law intern has stirred up a hornet’s nest. The case has thrown the spotlight on the hierarchical, and often exploitative, relationship between judges, senior advocates and young women lawyers, which leads to harassment of women both within and outside the precincts of the Supreme Court. On November 29, the Supreme Court-appointed panel that was probing the alleged sexual harassment of a law intern by a retired judge submitted its report to the Chief Justice of India. The report has named former Supreme Court judge A.K. Ganguly as the accused in the case.

The formation of the panel is only a small step to create a gender-sensitive environment for women lawyers, interns and clerks who are often forced to acquiesce to daily harassment in a world of male domination. Women lawyers practising in the Supreme Court sense a deep-seated culture of sexism that manifests itself in the everyday conduct of judges, fellow lawyers and senior advocates. The present regulations governing sexual harassment at the Supreme Court, notified in September 2013, remain grossly inadequate.

The public outcry over the recent sexual harassment allegations seems to be the immediate cause for the formation of the panel. Earlier, in December 2012, the Supreme Court in Medha Kotwal Lele and Ors vs Union of India had expressed its anguish over the non-implementation of the guidelines laid down in the Vishaka judgment. The court noted: “There is still no proper mechanism in place to address the complaints of sexual harassment of the women lawyers in Bar Associations.” Further, in Binu Tamta and Anr vs High Court of Delhi , the Supreme Court observed that women attending courts as administrative staff, lawyers, and clients or in any other capacity must be protected from sexual harassment. It was only in September 2013 that the Supreme Court finally notified The Gender Sensitisation and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013. However, these regulations fall far short of the norms defining sexual harassment set by the Vishaka judgment.

Speaking to Frontline , senior advocate and director of the Lawyers’ Collective, Anand Grover, explained: “Sexual harassment by judges of superior courts is not covered under the present rules notified by the Supreme Court. Also, the definition of precincts of the Supreme Court in the rules notified by the Supreme Court needs to be expanded so as to cover places outside the court premises where interns might have to visit for work. These rules do not come under the Sexual Harassment of Women at Workplace (Prevention, Prohibition, Redressal) Act, 2013, being passed by Parliament. There are also problems with the Act so far as its application to judges is concerned. Section 13 of the Act provides for punishment for sexual harassment as misconduct in accordance with the service rules applicable to the respondent. These are not applicable to judges. Also, judges are not subject to the discipline of the Chief Justice of India. The only law that is applicable generally is the Vishaka judgment. Therefore, the Act and/or the regulations need to be amended to cover the judges of superior courts.”

Naina Kapur, an advocate with the Preventive Law and Equality Compliance who framed and acted as the lead instructing counsel in the public interest litigation (PIL) case that led to the Vishaka judgment in 1997, highlighted how the Sexual Harassment at the Workplace (Prevention, Prohibition, Redressal) Act, 2013, considerably diluted the progressive spirit of the Vishaka judgment. She said:

“The 2013 Act has diluted Vishaka through prioritising complaints and the complaint mechanism and diluting the primary importance of prevention. Apart from the Statement of Objects, nowhere does the Act adhere to the spirit of promoting workplace equality. Rather, it resorts to outdated, archaic language, is confused and convoluted in language, which will be a key obstacle to implementation. It is not in the least bit user-friendly, exposing a lack of understanding of the issue and a failure to keep the beneficiary in mind. Most significantly, it has incorporated a provision on ‘conciliation’ and a provision on ‘false charges’, both of which are antithetical to constitutional equality and both of which were rejected at every consultation that took place. The Justice Verma Committee strongly recommended the deletion of both the provisions. Undermining the importance of prevention denies the possibility of enrolling and orienting employers and others towards attitudinal change, the very obstacle that has historically denied women access to a level playing field at work.

“The Act resorts to an adversarial process akin to a court process which, apart from being unimplementable by most workplaces, again undermines the unequal impact which characterises workplace sexual harassment. The Supreme Court draft rules propose to worsen this scenario through an even more convoluted and unfriendly process.”

Sexism in the court Despite the immense public attention on the issue of sexual harassment, young lawyers complain of a claustrophobic atmosphere dominated by sexist comments and a culture of hyper-masculinity and gender insensitivity. Jhuma Sen, a junior advocate who has been working in the Supreme Court for the last three years, gave a detailed account of the different forms of sexism: “Sexism is very apparent and evident in the courtrooms, the corridors and in the canteen. Walking down the corridors of the court itself gives one a sense that it is a male-dominated profession as male judges and lawyers far outnumber the women. Also, there is a lot of pushing and shoving that goes on in the crowded courtrooms and occasionally in the corridors too. Some of the male senior advocates are at times patronising and condescending towards younger women lawyers. There was this instance earlier this year when a male advocate, who was not even my senior, started instructing me about the appropriate place to stand and what to do in the courtroom. The courtrooms are mostly filled with men. It was only during the hearing of the Binu Tamta case hearing on sexual harassment last year that I saw a large number of women lawyers in the courtroom.”

The young advocate also spoke of the numerous sexist jokes, at times bordering on sexual harassment, that are commonplace in a lawyer’s chamber. “Most women lawyers, especially interns and juniors, are constantly subjected to sexual innuendoes and sexist jokes and have no means to raise their voice for fear of losing their jobs.”

The gender insensitivity of the institution manifests itself in several other ways. On December 13, 2012, Additional Solicitor General Indira Jaising wrote to the then Chief Justice of India, Altamas Kabir, requesting the provision of crèche facilities in the Supreme Court for the toddlers of practising women lawyers. The proposal was endorsed by the Women’s Bar Association and received the support of a number of women lawyers who found managing both work and home difficult. The proposal has not been implemented yet.

Naina Kapur said in an email interview: “It seems to me gender education should be a staple part of the judicial training curriculum, with an evaluative process that can help improve judicial practices and attitudes towards women lawyers in general and gender issues in particular. The recent case of an intern being sexually violated by a retired judge clearly shows how difficult and challenging it is to raise a complaint at this level. And yet, the question is, why should it be so? Perhaps because we still live in a culture which is extremely uncomfortable with all things sexual and, rather than being supportive, is suspicious of any complaint that dares to challenge entrenched institutional attitudes that do result in unequal treatment of women and of such issues.”

Challenges ahead On November 26, the Supreme Court constituted a workplace sexual harassment panel on the lines of the framework established by the Vishaka judgment, with a majority of female members and two members of civil society nominated by the Chief Justice of India. The panel is headed by Justice Ranjana Desai, who also heads the three-judge inquiry committee examining the allegation of sexual harassment against a former judge by an intern.

Speaking to Frontline , the renowned human rights lawyer Vrinda Grover welcomed the step and termed it a breakthrough into the predominantly male bastion of the Supreme Court.

In the days to come, the committee will face a number of challenges in improving gender sensitivity awareness in the Supreme Court and in the legal fraternity as a whole. An amicus curiae petition filed by Anand Grover on the issue of the alleged sexual harassment of an intern on November 18 highlights several of the systemic problems that encourage discrimination against women. The petition calls for a regulatory regime for interns, law students and law clerks interning with the judges of the Supreme Court, which includes application procedure, conditions of work, terms of engagement and an affirmative declaration encouraging the engagement of women interns and women law clerks. Against the backdrop of similar cases of sexual harassment, there are fears of a backlash against women lawyers and interns and of judges refusing to employ women interns.

The petition has also asked for the Gender Sensitisation and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations (2013) to be expanded so that interns, lawyers, law students and clients are not excluded from protection. It has also asked for an expansion of the definition of “Supreme Court of India precincts”, bringing the same in conformity with the definition of “workplace” under Section 2 (o) of the 2013 Act.

The inquiry into the alleged sexual harassment of the intern, however, faces multiple obstacles. Commenting on the problems in bringing the guilty to book, a senior advocate explained: “The alleged incident happened after the judge had retired. Also, the incident did not take place on the Supreme Court premises but in a hotel. The present regulations governing sexual harassment therefore do not apply. Also, the incident happened in 2012, before the Sexual Harassment at the Workplace Act, 2013, was passed. Therefore, the girl can only get relief if she files a criminal complaint under the old Section 354, which deals with ‘outraging the modesty of a woman’.”

The present case of the law intern has brought to the fore the larger problem of gender insensitivity and the lack of regulations to punish the guilty in the highest quarters of the judiciary. The formation of the committee, though a step in the right direction, is only a small one to prevent exploitation by people in positions of power. However, there have to be concrete measures to promote a just, gender-sensitive working environment for women lawyers, interns and law clerks and prevent obstacles to women entering the legal fraternity.