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HindustanTimes Sun,21 Sep 2014

Lawmakers are becoming a law unto themselves

Namita Kohli   August 09, 2014
First Published: 23:22 IST(9/8/2014) | Last Updated: 14:52 IST(11/8/2014)

In December 2012, when many in Delhi were agitating against the gang rape of Nirbhaya, another young woman in the city — a law intern — was grappling with her experience of sexual assault by a senior judge, under whom she was doing her internship. As angry youths on the streets demanded “justice” for the gang-rape victim,  this young woman was weighing her options to get “closure”.  Eventually, she went public with her story on her college’s student blog, 11 months after the incident, but decided against lodging a formal complaint. The allegations were against former Supreme Court judge AK Ganguly, who was forced to step down from the position of the chief of the West Bengal Human Rights Commission after he was indicted by the Supreme Court.

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Last week, an additional judge from Gwalior made headlines after her resignation and allegations of sexual harassment by a senior administrative judge in Madhya Pradesh. Those in the  fraternity feel that there are gaps in the institutional response to such cases, triggering the debate, yet again, on dealing with sexual harassment in the courts. After all, aren’t those who claim to be the upholders of justice, obliged to set their own house in order first?

Several lawyers such as senior advocate Meenakshi Arora feel that if it took the Supreme Court 16 years — the historic Vishakha judgment on sexual harassment at the workplace came in 1997 — to finally frame the guidelines on sexual harassment  for its own premises in 2013, the implication is that the issue was not given the importance it deserved. “If the apex court took that long, how can one expect it to percolate down to the lower judiciary?” says Arora, sitting at her office in Delhi’s Nizamuddin East area. This week, the Delhi High Court also formed an internal complaints committee to deal with sexual harassment on its premises.

Despite these measures, there are several issues that need to be looked at. For instance, senior advocate Rebecca John points out that since the sitting judges in courts are protected by law, the only way to punish the offenders — after an allegation is proved — is by impeachment, which is a “tedious and a political process”. Others such as Arora feel that the need of the hour is a swift response. “It is hard to gather evidence in such cases; normally, there’s no direct evidence, only circumstantial evidence. How can the enquiry be impartial if the senior judge is still around? Subordinates or colleagues of the lady judge wouldn’t be in a situation to speak up,” she says. Given that the Gwalior judge had to resign to get heard, Arora feels that the system had failed her.

It's the 'system'--the structure, and the way it works on the ground that makes it hard to deal with. "In this profession, you generally begin as a junior, and are dependant on one person--a senior. It's not like any other organisation, it's actually very person-centric. The power differential creates a space for sexual harassment," says Mrinal Satish, associate professor, National Law University, Delhi. It's hard then for a junior to complain against a senior, risk being branded as a "troublemaker" and lose future job opportunities, says a young lawyer who didn't wish to be named.

Senior lawyers also point to institutional sexism within the judiciary: when women complain, they are branded as liars, despite the fact that several other laws are misused to settle scores. Women lawyers that HT spoke to also pointed to their everyday experiences in the courts —  being the subject of sexist comments, jokes and uncomfortable stares in the corridors and canteens, and having trouble being taken seriously, at least until they had proved themselves professionally. “Inside the trial courts, and outside too, people give you that look — will a woman be able to handle a criminal case?,” says Tarannum Cheema, 31, an independent Delhi-based lawyer.

Others such as Aparna Vishwanathan, who runs an all-women’s law firm says: “I always ensure that my junior lawyers travel in teams and are never alone in when visiting senior lawyers’ chambers.” A young woman lawyer who did not wish to be named, adds that many law firms tend to avoid hiring female employees, because of the “hassles” of providing transportation, and the possibility of them “creating trouble”.

Read: There’s a deep-rooted institutional bias against women in the judiciary: senior advocate Rebecca M John

Some legal professionals have a different view though. Chandigarh-based lawyer Tanu Bedi and Delhi-based Usha Mehra, a retired High Court judge, feel that biases against women don’t exist, as long as they are “doing their job well”. But Arora counters that the invisible glass ceiling is as much a reality in the legal profession, as it is in others, especially when one moves up the ladder.  As the panel on the right shows, few women have been able to break into the elite “old boys club” to reach top positions; women have trouble even getting designated as senior advocates.

In the backdrop of the power differentials and the sexism, Shamnad Basheer, former professor of law, West Bengal National University of Juridical Sciences, says that it’s important that change be brought about at the level of law schools too.

Basheer says that, in the case of the intern who accused Justice Ganguly, many in the legal profession were of the view that what was done to her was “normal stuff”, and the university administration  was reluctant to take a strong stand.  “As upholders of law, we didn’t quite live up to the standards expected of us. But with her mature response to the situation, the young woman managed to achieve what she had set out to do.”

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