Even while ruling that sexual harassment is an infringement of the constitutional right to dignity, the justice pyramid stood apart as an exception to this standard

First it was Rupan Bajaj from Punjab, then a woman officer in Kerala; and we learnt that senior women civil servants are as vulnerable to sexual harassment as ordinary women in ordinary workplaces. Also, that nothing separates top cops and ministers from the common man, save the assumption of impunity by the former. Women blew the lid on male impunity, rupturing it in ways that sent waves of shock down the habitations of the common man — ‘a super cop who has done signal service to the country to be treated as an ordinary criminal for a moment’s exuberance with a charming working woman’ was the way Gill’s misdemeanours were described. This was followed by Bhanwari Devi’s memorable but distressing struggle against the assault by upper caste landlords which resulted in the Vishakha judgment of the Supreme Court: Justice Verma’s court ruled against sexual harassment in the workplace setting out guidelines for all workplaces and mandating that protections be put in place. This was the year 1997.

While the progress was uneven, workplaces across the country witnessed some rumbling in the redrawing of the norms of appropriate cross-gender conduct. Women were able, with some measure of success, though far from adequate, to push the common man to conform to behaviour in workplaces that did not constitute an infringement of the bodily integrity and dignity of their women colleagues.

Impervious to change

In the decade and a half that this churning has been underway, however, courts themselves have been impervious to change. The situation is indeed peculiar. While ruling that sexual harassment constitutes an infringement of the constitutional right to dignity and comes within the meaning of discrimination based on sex, the justice pyramid across the country stood apart as the exception to this standard. Without going into how pervasive practices of sexual harassment are in judicial spaces — that is, the spaces of the Bar and the Bench — we could pose an even more basic question: If it is mandatory according to a Supreme Court ruling that sexual harassment constitutes a specific kind of misconduct which must be dealt with in a specific manner, why has it not been made mandatory for all courts, the bar council and bar associations to constitute complaints committees to create the possibility of redress for women who might need it? These women could be litigants, workers in court premises, clerical staff, advocates and judges. Curiously, the judiciary is befuddled by the problem to which it crafted a solution — it has no language or procedure that will kick in the minute a complaint is made.

The recent complaints are not the first complaints women have ever had. These are only the first that have been spoken about. To their credit, these young women are laying down the non-negotiable in no uncertain terms. It is true that we cannot judge anyone (even less a judge) before a transparent and fair enquiry is conducted. Hearing one complaint in a closed, closely guarded proceeding, the apex court hastens to decide that no further complaints of this nature will be heard. Why?

The trouble does not stop there. The legal profession itself takes its cue from this construction of the exception by the Bench. Lawyers are practitioners who do not need to fall in line with the norms they might seek for their clients. Everyday, accounts from women in the legal practice speak of how hostile court environments are for women. It is not uncommon to see bar association halls treated as spaces that men will occupy. Women are relegated to the women’s bar association room, which, in some cases, is even veiled with a soiled curtain or may be consigned to the deepest and darkest crevices of court complexes. We can scarcely forget that these are professional spaces that must nurture deliberations on the constitution and a sense of justice.

Recent incidents in the Calicut Bar Association reported in the social media crystallise this issue further. If a woman working in the courts — in whatever capacity — finds men’s modes of address and behaviour sexist and objectionable (which often they are, the truth be told), surely, she has the right to speak her mind. Not just on her blog but in the bar association hall. Yet, a remark by a woman lawyer on her blog that male colleagues habitually use unacceptable modes of address in speaking to women leads to her suspension from the association after a general body meeting. What is the writ of the bar association? Is it to nurture an environment where advocates are required to conform to the spirit of the constitution (constitutional morality) or is it to enforce the morality of the mob on the street (public morality)? Should lawyers vote on a sense of justice or should they vote to reinforce the dominance of the pack?

This brings me to my final point. Unless the legal profession and courts restructure themselves in tune with constitutional principles, they will continue to present “hostile environments” to women as defined by the decision of the Supreme Court in Vishakha and others vs State of Rajasthan, a verdict now enshrined in the legislation.

Gender composition

The numbers only precipitate matters further. Is there a connection between the prevarication of the Supreme Court in the matter of complaints against members of the Bench and its gender composition — the fact that the Bench comprises almost entirely of “brother judges” (with negligible exceptions that do not add up)? Is there a gender-appropriate language to refer to women on the Bench that recognises their centrality, their competence and their gender? Can we draw a connection likewise between the decision of a full general body of a bar association to suspend a woman who spoke her mind to the fact that the bar association is ruled and constituted by men — the women being mere spectators with no voice or effective vote?

It is time for a cultural transformation in the gender politics of the justice pyramid. It is time for the Supreme Court to redraw the circle of regulated conduct that conforms to the constitutional norm and situate its pyramid within. That is the only justiciable route, as fundamental rights under the constitution are.

(The writer is Professor & Director, Council for Social Development, Hyderabad)

Correction

This article has been corrected for a factual error

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