The emergence and furious spread of the #MeToo movement in India has opened up new areas of legal reform in the jurisprudence of sexual harassment and gender violence. Justice Prabha Sridevan is a retired Madras high court Judge. She served as a Judge in the high court from 2000 to 2010, and is also part of the Feminist Judgment Project, India. In an interview with The Wire, she spoke about the issue at hand and more. Excerpts:
How do the courts decide sexual harassment cases? How much do they rely on evidence and how much on victim testimony? What are the other considerations before the court? How difficult is it to prove sexual harassment in court, especially if the cases are several decades old?
In sexual harassment cases, the primary evidence will be the complainant’s testimony. I’m not sure as to how much corroborative evidence will be there in every case as the offence is usually between the harasser and the harassed. Of course, according to Section 9 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, the time limit for filing a complaint with the internal complaints committee or the local complaints committee is three months. Also, as per the provisions of Section 468 of the Criminal Procedure Code, 1973, no court can take cognisance of offences which are punishable by a fine or with jail terms less than three years after the expiry of the period of limitation which too can go up to three years.
However, there is no bar on limitation for filing a complaint and for the court to take cognisance of an offence which is punishable with imprisonment exceeding three years. Also, a complaint can be filed with the internal and local complaints committees after a period of three months provided the complainant gives a cogent reason for the delay. Now, with Maneka Gandhi planning a #MeToo panel for all complaints, including old ones; and the law ministry lifting the time limit for child abuse victims to file cases, there is more hope for a greater number of sufferers. But it is going to be a difficult path. Courts must understand the complexities of the complainant’s situation and the hurdles in the path of her access to justice. I am not asking anyone to believe everything that the woman says. But it must be understood that the person against whom the complaint is made is in a position of power and for that reason alone it is not easy for the complainant to make the complaint when for all practical purposes it is her word against his. If she has not acted instantly, there are mindsets connected to the nature of the act that discourage the woman from speaking out. Judges must remember that.
What do you think of the due process argument put forward by detractors of the #MeToo movement? Is it fallacious?
Social media has become a catch-all phrase for a lot of things. Now, when the Mathura case final verdict came out in 1979, there were strong protests. They led to amendments in the Indian rape law. Were these protests wrong? The tools that one side has, the other side also has them. As far as protests and the raising of public consciousness are concerned, whereas earlier it was done through newspaper articles, now it is done also through social media.
The year I became judge of Madras high court, there was a rape and murder case that had come before the division bench in which I was junior judge. It had taken place sometime in the 1990s. The Aruppukkottai rape was very similar to the Delhi bus rape [Nirbhaya] in some respects. There were three accused and the girl had been on her way to tuition classes when the incident happened. There was a huge outpouring of public outrage. Women activists were present in court throughout the trial. The senior judge was Justice V.S. Sirpurkar. In the appeal before the Division Bench of the high court, taking all things into consideration, we confirmed the conviction but commuted the death sentences to life. There was no Twitter then, but the horror and anger felt by the women was clearly evident. In fact, I received many angry anonymous letters condemning me for commuting the sentence. Now I would have been trolled, right?
In her recent book On Rape, Germaine Greer has argued for separation of rape into sleaze and assault, and lighter punishment for rapes wherein no injuries were caused to the victim such as in Vinta Nanda’s case. She also wants such rapes to be dealt with as civil wrongs rather than crimes. Are we looking at a legal reform, maybe in the distant future?
I am not hopeful. We still have not been able to abolish the death penalty, also vis-à-vis gender violence and sex crimes. Rape of children below the age of 12 years is punishable by death in our country. We have not moved towards such legal reform yet. If we do that, it will be good. It will serve two purposes – it will reduce the burden on the prison systems and, if the harasser is a public figure, there will be more chances of conviction, and hence deterrence. I don’t believe in over-criminalisation. It achieves nothing.
In today’s corporate-governed world, do you think that the power of courts as social control has decreased and become secondary, even though they remain relevant as a last resort? For what can be worse to a family breadwinner than a job loss?
The power of courts has not decreased. But yes, when the axe falls, it falls first inside a company or a university, and it is more feared by men, or the culpable, in general. This is in contrast to the legal system where there is always a time lag. But that is because they have a greater responsibility. They are, after all, the last resort of the wronged.
Do you think there should be a defamation law in today’s scenario? What is your opinion on criminal defamation?
I am not so much in favour of defamation. Invariably, it is used as a tool to silence free speech. Even journals which report the ordinary life of a public figure are subjected to this form of silencing by the powerful. As in the case of Vaasanthi, whose biography of then Tamil Nadu Chief Minister J. Jayalalithaa got an injunction against the publisher from the Madras high court. Of course, now an updated version has been published.
What do you think of the legal terms used to describe gender violence and sexual offences, like molestation and outrage of a woman’s modesty? Are they not sexist and perpetuate rape culture?
We have to think of terms which are acceptable, which do not keep affirming the false notions of lost purity and honour. Citing the woman’s body as the locus of honour is the reason for much of the violence against women.
On many occasions, sexual harassment is merely an expression of professional jealousy and misogyny against an outstanding woman. The woman in question finds herself isolated not only because she does not want to jeopardise her job, but also because such behaviour is normalised. Women are guiltier here than men because the positions for them are fewer and the competition among them far more intense. Also, they feel more insecure to start with and see every other woman as an adversary. The victim in question often has no choice but to absorb it all. What is your comment?
Well, a woman can sue a company for breaching her fundamental rights but she does not have the staying power and the resources to fight the case which the other side has, so it is a lost cause. I don’t agree with the use of the word, guiltier. They are victims of the unequal structure. But the average young man or woman in our country is too busy surviving to fight such legal battles. Simple, verbal sexism from men, in that sense, is more direct and easier dealt with. For instance, once a well-dressed, well-spoken man at the question hour at the end of a meeting asked me, “Why do women try so hard to compete with men in the professional world when they can be queens of the kitchen?” My reply was, “For a change, you can be kings of the kitchen.” He was not happy about that. Regarding women obstructing the growth of women through unfair means, as I said earlier, we are all victims and fighting on an uneven plane.
#MeToo has so far been largely limited to elite workplaces and the privileged, urban milieu. When will it reach the aam aurat and how?
This is also my question. #MeToo represents the liberation of women from forced confidentiality and false shame over a physical/sexual assault. But has the rural woman, the poor woman or even the small town woman been affected? Do they know that the walls are falling? Do they know that the curtain of silence is slowly being torn down? Harassment of women permeates all the spaces where work happens – be they a university or a brick kiln. It is the way the person in power says, I can make you or I can mar you. The refusal to be marred should an assault take place on the spiritual level, and to fight back instead and teach the perpetrator a lesson, is something the #MeToo woman has realised as possible. But this refusal, desire and intent is innate in her less privileged counterpart, as well.
I hope that the movement’s success in taking on women’s oppressors will be seen by and replicated by all women. Women from different social and financial strata do have so many avenues for mingling and interaction. I am thrilled when I see women breaking male bastions in other unexpected spaces, too, playing the ghatam, for example, which is a percussion instrument, or playing in a street orchestra, or driving public transport. With this intermingling, we may forge a bond of mutual respect, which may be one good starting point to spread the message of #MeToo. We must think of other innovative ways of enabling and giving voices to all women who speak out against harassment.
Sucheta Dasgupta is a feminist, a former short story writer and a journalist with India Legal.