For he that gets hurt
Will be he who has stalled
The battle outside ragin’
Will soon shake your windows
And rattle your walls
For the times they are a-changin’
– Bob Dylan
A complainant in a rape case recently faced recrimination in an order granting the accused anticipatory bail. Justice Dixit of the Karnataka high court, in an order of June 29, 2020, questioned the veracity of the complainant’s account.
The reasons for his skepticism included the complainant failing to approach a court at the “earliest point of time when [the accused] was allegedly forcing her for sexual favours”; her going to her office at 11 pm at night “without explanation”; her “having consumed drinks with [the accused]”; her falling asleep after the alleged rape in a manner “unbecoming of an Indian woman” as “that is not the way our women react when they are ravished”.
The last two of the quoted remarks were expunged by a subsequent order dated July 1, 2020, without any strictures having been passed against Justice Dixit.
It is reprehensible that a constitutional authority deployed such patently misogynist tropes in a judicial order.
What is far more troubling though, is the lack of any significant backlash or condemnation from the legal community, especially from its senior members. An open letter was addressed to Justice Dixit by 17 organisations, including the PUCL Karnataka, and 22 members of civil society (that included just one advocate).
There was another open letter on the subject by advocate Aparna Bhat, who wrote to Chief Justice of India S.A. Bobde and the Supreme Court’s three women judges: Justices R. Bhanumati, Indu Malhotra and Indira Banerjee.
A few powerful articles were published that reminded us of the Indian judiciary’s long legacy of misogyny in its approach to rape cases. But there remained a deafening silence from the leaders of the bar and the judiciary who have otherwise (especially in recent times) thrown their weight behind and taken positions on various social justice causes (and some even behind ‘nationalist’ causes such as the recent TikTok ban).
The stony silence of the bar and the bench when it comes to instances of rank misogyny and sexism is as old as these male dominated institutions themselves, as views such as those of Justice Dixit’s in fact carry currency. We need look no further than the late, much celebrated lawyer Ram Jethmalani who faced no censure or condemnation from the bar or bench for describing the 16-year-old girl who accused the ‘godman’ Asaram Bapu of sexual assault as suffering from a “mental disorder” that made her feel like meeting men alone.
Then there was the episode involving Justice Swatanter Kumar – a former judge of the Supreme Court – who was accused of sexual harassment by a law intern. A complaint was filed with the Supreme Court in December 2013.
In response, Justice Kumar filed a defamation suit and obtained an order of injunction from the Delhi high court, restraining the media from reporting on the contents of the sexual harassment complaint. To date, there is no information in the public domain as to whether a proper inquiry was instituted into the allegations, and what the results of such inquiry (if any) were.
Justice Swatanter Kumar completed his five-year tenure as Chairperson of the National Green Tribunal (following his retirement from the Supreme Court) and is currently a professor of law and justice at a prominent Indian law school. That there was no stir from within the legal community – demanding to know what became of these allegations – tells us how heavily the thumb weighed on the scale of justice.
There is of course the unforgettable farce in 2019 that was famously titled ‘A Matter of Great Public Importance Touching Upon the Independence of the Judiciary’.
This related to the Supreme Court’s ‘inquiry’ into the allegations of sexual harassment that were levelled against the then sitting Chief Justice of India, Ranjan Gogoi. The inquiry by an ad hoc committee of three judges of the Supreme Court violated the basic tenets of due process and natural justice.
It was a telling indictment of our times that the disgraceful conduct of judges of our highest court did not prompt even a resolution of condemnation from bar associations across the country (with the notable exception of the Supreme Court Bar Association and the Supreme Court Advocates-on-Record Association). In fact, the Bar Council of India – the statutory body regulating the legal profession – issued a statement that condemned the allegations (before an inquiry was even instituted), labelling them “false” and “cooked up”, and claimed it was an attempt to “malign the institution”.
There was no collective condemnation from the legal community of the nation’s highest law officers – the attorney general and solicitor general – who debased their offices by being apple polishers, joining the Chief Justice of India in his malicious, public attack on the complainant.
It was however not the first time that powerful men (and women) in and around our judicial system have closed ranks to shield one of their own. Nor was it the first time that a complainant was victimised twice over for seeking that elusive ideal of justice that we have committed our professional lives to. This episode laid bare the enormous fault lines in our system that continue to be unaddressed, as those in a position to remedy them are also the ones who most often abuse it.
Over the past few weeks, news websites and legal journals have been flooded with articles to mark the 45th anniversary of the Emergency. One can’t help but be keenly aware of the fact that even a fraction of the (rightful) condemnation that is directed towards judicial travesties such as the judgment of the Supreme Court of India in ADM Jabalpur v. Shivkant Shukla has never been channeled towards perversions of justice that involve gender based issues.
A case in point would be the judgment in Tuka Ram & Anr. v. State of Maharashtra, where the Supreme Court in 1978 set aside a conviction by the Bombay high court, and confirmed the verdict of a trial court that acquitted two police constables of raping a 16-year-old tribal girl – Mathura.
The reasons for the acquittal included Mathura purportedly being habituated to sexual intercourse, and that she may have enticed the police officers to have sex with her. As the prominent human rights lawyer Nandita Haskar observed, this judgment would have gone unnoticed were it not for an open letter to the Supreme Court addressed by four prominent academics – Lotika Sarkar, Upendra Baxi, Vasudha Dhagamwar and Raghunath Kelkar.
Despite a groundswell of protests from activists and women’s rights organisations, in a tradition that continues to be observed, the leaders at the bar and from the bench maintained an impassive silence.
Do women not deserve equally profound expressions of remorse for the many instances when India’s “Temple of Justice” failed them? But then again, ours is a legal system that has mastered the art of burying its head in the sand on issues concerning women. Our system still congratulates itself for the Vishaka guidelines – where the Supreme Court “legislated” a set of guidelines to be followed by establishments to deal with instances of sexual harassment. What’s forgotten is that these guidelines offered cold comfort to Bhanwari Devi, the woman whose brutal gang rape formed the basis of the petition that led to the guidelines.
The criminal proceedings in respect of the gang rape of Bhanwari Devi in 1992 is still winding its way through the judicial system. It also took the Supreme Court 16 long years after the formulation of the guidelines in the Vishaka judgment to put in place a mechanism for looking into allegations of sexual harassment against its own.
We may question the value of censure and condemnation in an ecosystem such as the Indian legal fraternity, where biases and sexist predilections are so firmly entrenched. It almost never prompts a public apology or recanting, much less punitive action. But consistent collective action does achieve the effect of causing future actors to pause before committing similar transgressions. It raises the moral bar for conduct, and demands a higher standard of ethical behaviour for those who seek to claim for themselves positions of leadership within the legal community.
This is not to suggest that all that is missing is the vocal denouncement of sexist and misogynist conduct, or an expression of solidarity with feminist causes. Such denouncements must lead to a recognition that systemic changes are needed to ensure that power is not abused, and that women are not victimised by the very institution that professes to be the guardian of constitutional values.
For 70 years, there has been no serious reckoning with how indifferent the Indian legal system has been to issues of gender justice. The Bombay high court is a striking example in this regard. Despite being one of the oldest high courts of India, only a handful of women have been designated senior advocates by the court, in contrast to the hundreds of men who have been deemed worthy of this distinction.
This problem of course is not confined to the Bombay high court alone. The Supreme Court, in its October 2017 judgment in Indira Jaisingh v. Supreme Court of India & Ors., laid down guidelines in an attempt at making the process of designation of senior advocates ‘objective, fair and transparent.’ However, it did not consider or address the problem of the lack of representation of women in the ranks of the senior advocates.
Similarly, women constitute less than 15% of the higher judiciary. The fact that there has been no serious introspection about the Case of the Missing Women, and no impetus for institutional reform is evidence of how misogyny has been woven into every aspect of the constitution and functioning of the bar and the bench.
If ever there was a time to question the moral and intellectual authority of those who we recognise as our leaders at the bar and on the bench, it is now, as they are products of a system that has reinforced power and privilege along gender, class and caste lines. Power and privilege are the twin demons that have ensured the low representation of women on the bench and at the bar (even more so at the senior level).
They are the demons that have ensured that an overwhelming majority of women who are part of the system are co-opted into its oppressive ways, learning early on that ‘camaraderie’ in the profession has its rewards, and that any protest comes with an automatic cost in terms of professional currency. Whether these are abusive law firm partners (the He(s)-who-are-named-in-whispers-but-never-shamed), law school professors who grope, judges who amongst other things harass interns for hugs and kisses, or senior counsel who wear their predatory ways like a badge of honour, this profession reeks of open secrets that are never called out because the cost of challenging status quo is far too high.
No matter how brazen the transgression, everyone goes back to being friends because of course, business is business. But we must now question whether we have reached a point where any participation in a system that is so broken is complicity.
What we need is a radical re-imagining of the Indian legal system, shaking it out of its historic apathy towards issues of gender justice. We need to demand a system that is sensitive enough to recognise that a woman’s hesitance to seek recourse to the legal system is an indictment of the system and not her credibility.
One that does not set out templates for normative behaviour by survivors of sexual violence. One where generation after generation of women lawyers is not sold the lie that their under-representation in the higher judiciary and amongst senior advocates is a result of a ‘meritocratic’ system. One where the obvious barriers that exist in this profession (including caste, gender and class) are acknowledged and surmounted through concrete, affirmative action. Where ascendency to the bench means more accountability and not a lifetime of immunity.
Where the Senior Gown is an emblem of responsibility towards a system they serve, and not a cloak of impunity. These need to be the rally cries of our legal community. Anything less is an act of cowardice and a resignation that we will forever exist in a system where justice is as fictitious as the man on the Clapham omnibus.
Arti Raghavan is a an advocate at the Bombay high court.