[Column]: The Court’s Conscience

Bar & Bench May 3 2019
the court's conscience - meenakshi arora, payal chawla

Meenakshi Arora & Payal Chawla

As the world watched with horror the appointment of Brett Kavanaugh to the US Supreme Court, in the face of accusations of sexual assault by the credible and poised Christine Blasey Ford, we, in India, remained quietly proud of our Supreme Court. And then all that changed. On April 20, an aghast nation watched the Saturday morning “massacre” of the Constitution and natural justice in open court.

The allegation against the Chief Justice of India (CJI) was disheartening, but it is the post-allegation conduct, that too by the Supreme Court (SC), that was truly alarming. The criticism that followed, particularly in regard to being a judge in one’s own cause, was sharp and swift. To many, constitutional principles were at risk — but for women, it was personal.

The despondency amongst women grew with each development. The SC said, “the independence of the judiciary was under very serious threat and there is a larger conspiracy to destabilise the judiciary”.

This serious charge was followed up with the emergence of clumsy stories. Allegations flew fast and loose, at “Jaguar” speed. Rumours and conspiracy theories abounded. There were developing allegations, traversing “disgruntled judges” on social media, which finally settled, on affidavit, to a “corporate figure” and “disgruntled employees and former employees of the Supreme Court”.

Curiously, even without the initiation of an inquiry into the allegations by the victim, the government showed its solidarity with the judiciary. A healthy tension between the three arms of the state that marks the separation of powers has been the hallmark of our democracy. To women, it appeared the “big boys” had closed ranks.

With the constitution of the Bobde Panel, it appeared that good sense had prevailed. This panel is not in terms of the Vishakha guidelines or the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”), since neither applies to SC judges. But even before a debate around this issue could begin, another bench was constituted to enquire into the allegations of a “conspiracy” against the CJI.

As members of the Bar, we watched the young lawyer’s conduct on full display in open court, which included a refusal to apologise and a protest walk-out. In all fairness, the hearing concluded on a positive note, with the constitution of the Justice A K Patnaik (Retd.) Committee, which brought with it a sense of relief and calm.

However, as the drama continued to unfold, on April 25, the front page of a leading newspaper proclaimed, “many SC judges request all-male staff at their residential offices”.

Here is what we, as women, heard: One, If you are being sexually harassed, stand back and bear with it. Two, if you rebuff an advance, we will go after you, your family, your livelihood and credibility. Three, if you somehow garner the courage to complain, we will marginalise you, and create the narrative that women have the propensity to make false complaints. Four, we will squash every credible allegation by closing ranks, playing the victim and question your antecedents.

It is imperative to mention that the statements made by judges, if any, are unverified. However, spoken and unspoken words from the SC matter. Even insinuations can adversely impact not only the morale of women, but also their economic rights — leading to the denial of equal opportunity at the workplace, inequitable pay — and that continues the cycle of an inequitable domestic balance. Importantly, it legitimises the excesses of men and the disparate treatment of women.

Remember, the road to equality for women has been a long and arduous one. The first major break-through came in 1996, with the landmark judgment of Vishakha v. State of Rajasthan, which filled a glaring lacuna in the law. It held fort for 16 long years till the enactment of the POSH Act in 2013.

Vishakha, paradoxically, had both an empowering and debilitating impact. It empowered women to pursue their careers under the protection of law; but debilitated women who took recourse to it, branding them social outcasts.

For example, a senior bureaucrat found it impossible to be accepted back at work, even though her allegations against her superior officer were found to be true by the SC. Her male colleagues refused to have closed-door one-on-one meetings with her. Her suffering was belittled, and her credibility undermined, making it impossible for her to continue working. It broke her spirit and ultimately, she resigned.

Fear of false accusations by men is wholly exaggerated, particularly when it comes to the SC. In 69 years, only two former judges have been accused of sexual harassment. Not a single sitting judge has been accused prior to the present allegations. Even with regard to allegations surrounding retired judges, the statements of the victims were distrusted by many and said to be “motivated”.

The incidents caused men to close ranks, and their offices, to women. Rumours abounded that no woman lawyer will be allowed to clerk with judges, that practising women lawyers will find it difficult to obtain one-on-one meetings with male colleagues. Members of the Bar were “advised” by “well-wishers” that women should bring a witness to every interaction.

That was 2014. This is 2019. We are on the heels of the #MeToo and #TimesUp movements. But nothing has changed. These movements have been built on the premise that the victim, at the outset, must be believed, and a free and fair investigation must ensue. It is imperative to remember that sexual offences usually take place behind closed doors, where the victim is often the only witness.

If a woman is brave enough to make her allegations public, we must at least extend to her the basic courtesy of listening. Disbelieving victims emboldens abusers and dissuades women from taking legitimate recourse to the law. The first attack is still to the credibility and integrity of the victim. She has to first establish her own credibility, before proceeding to establish her case.

In the darkness of these circumstances, there was an opportunity to change the manner in which the credibility of the victims is perceived. And this change could have been driven from the highest judicial office of the land. The CJI could have chosen to lead that change from the front. But alas!

Briefly, hope rested with the Bobde Panel. But in less than six days, the victim withdrew from the proceedings. The future is uncertain.

Whatever course the SC takes, its actions will have lasting consequences. The lack of a fair inquiry will lead to deeper divides, greater misogyny, thicker glass ceilings and wider glass walls. As the most powerful court in the world, our Supreme Court still has the unique opportunity to show how free and fair investigations can be conducted, paving the way for a new era of equality and dignity for women, and to leave a lasting legacy for the world to follow.

We implore our eminent jurists, legal scholars, and judges — both sitting and former, who have so often said that in a democracy institutions are only answerable to the “people” who are supreme, — to come out in support of women. Your silence at the moment is deafening. Let it not reach such a crescendo that you can no longer hear the voice of your conscience.

This article first appeared in the print edition of the Indian Express on May 2, 2019, under the title ‘The Court’s conscience’.

About the authors:  Meenakshi Arora is a Senior Advocate at the Supreme Court of India. Payal Chawla is the founder of JUSCONTRACTUS, India’s first and only all-women law firm.