Two big sexual harassment complaints have sent shock waves in India this month– one by a legal intern complaining of sexual harassment from a retired Supreme Court judge and another by a journalist in a well known media house, complaining of harassment by her employer.
The complaint by the legal intern is timely because it raises the real problems of sexual harassment that women lawyers and legal professionals face. The Supreme Court has set up a 3 member committee to inquire into this complaint, but it is rather shocking that this committee is not in accordance with the Supreme Court’s own guidelines in the Vishaka judgement. The Vishaka guidelines and the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 mandate that every committee dealing with sexual harassment should have at least 50% women, should be chaired by a woman and should have one external member who is familiar with issues of harassment. The present Committee set up by the Supreme Court has only one woman member instead of two and it has no external member as mandated. The external member is required, in the words of J. Verma of the Supreme Court, “to prevent the possibility of any under pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.” When the complaint is against a former Supreme Court judge, and the committee consists only of sitting Supreme Court judges, it is a very serious concern. It was precisely for such cases that the external member requirement was made in Vishaka and in the new legislation. It is being flouted by the Supreme Court.
The legal profession the world over is male-dominated. Women face sexual harassment of varying degrees and sexual harassment laws need to be interpreted to keep in mind such instances. First, sexual harasment laws usually address harassment at the workplace. For women lawyers, the ‘workplace’ is often the courts. However, lawyers practising in the courts are not ‘employees’ of the judges, and therefore the definitions of workplace, employers and employees in sexual harassment law needs to be interpreted broadly.
Secondly, it is extremely difficult for women lawyers to complain of harassment. Women lawyers would face sexual harassment in various ways – from co-lawyers; senior lawyers; judges; co-workers and their employers. Law students, legal interns and paralegals are particularly prone to harassment as well as others who access the system such as clients or litigants. In India, women, especially those who do not adhere to conventional norms are at risk of sexual harassment in the form of sexual gossip and comments by male lawyers in the courts. The court corridors become a hub where almost every woman lawyer is observed and discussed by male lawyers, as to their dress, mannerisms, relationships. This gossip often gets carried to the judges, courts staff and clerks. Women lawyers face sexual harassment from senior lawyers and judges where sexual comments are often made openly in the courts, making it impossible for the woman to speak out publicly. Requests for sexual favours are made. In one case a woman lawyer in Andhra Pradesh even committed suicide due to the sexual harassment she faced. Complaining against a senior lawyer or a judge has huge repercussions on the woman’s future legal career because of the power that judges and senior lawyers wield in the legal profession. Additonally, because the ‘workplace’ is so broad, making a complaint would make the woman conspicuous in the entire legal community of the city / town where she practices.
The recent complaint has prompted the Supreme Court to set up a 10-member Gender Sensitisation and Internal Complaints Committee to receive complaints against sexual harassment. Most high courts all over India however do not have complaints committees which would take up complaints of sexual harassment. Even if they do, they are largely non-functioning.
Setting up the complaints committees is one part of the battle. The real challenge lies ensuring that these complaints are inquired into seriously and action is taken against the perpetrators, even if they are judges or senior lawyers. Only then will the legal community recognise that sexual harassment is not a trivial matter and women will come forward to make complaints.
Jayna Kothari is the Director, Centre for Law and Policy Research, Bangalore and an advocate practising in the Karnataka High Court at Bangalore.