Sandhya Gokhale | SabrangIndia https://sabrangindia.in/content-author/sandhya-gokhale-16648/ News Related to Human Rights Thu, 13 Oct 2022 04:31:20 +0000 en-US hourly 1 https://wordpress.org/?v=6.2.2 https://sabrangindia.in/wp-content/uploads/2023/06/Favicon_0.png Sandhya Gokhale | SabrangIndia https://sabrangindia.in/content-author/sandhya-gokhale-16648/ 32 32 “Illusive Justice” for sexual harassment complaints in the Supreme Court, will there be a course correction? https://sabrangindia.in/illusive-justice-sexual-harassment-complaints-supreme-court-will-there-be-course-correction/ Thu, 13 Oct 2022 04:31:20 +0000 http://localhost/sabrangv4/2022/10/13/illusive-justice-sexual-harassment-complaints-supreme-court-will-there-be-course-correction/ On November 15, after 8 long years, the Supreme Court will hear a plea urging the framing of guidelines on how the higher judiciary, including that court, will handle complaints of sexual harassment against sitting/retired judges

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Image: Live Law

Throughout the last decade there have been number of sexual harassment complaints filed by survivors against the judiciary even at the level of the Indian Supreme Court. But to date, there are no definite provisions or guidelines on how to deal with such complaints. The highest ever destination for justice, appears itself to be deluding justice to the survivors.

It was in 1997 that the Supreme Court laid down guidelines to deal with prohibition, prevention, and redressal of sexual harassment at workplaces, the famed Vishakha judgement, when itself, surely it could have included itself as one such workplace.[1]

All legislation in India, which deal with violence against women are the outcome of long drawn struggles for justice, by individual women, primarily from marginalised sections of society. These struggles have gathered solidarity and support from various women’s organisations and activists over the decades. These laws then, have been outcome of these struggles and campaigns. The 1997 guidelines known as “Vishakha Guidelines” have been the outcome of an extraordinary struggle by a rural government worker, supported by numerous organisations and activists.

In September 1992, a government employee at a women’s development project in Rajasthan, in her line of duty, was sexually assaulted by five men of the village. The violent assault was a lesson to be taught to her since she had halted a child marriage. Police inaction and political pressure led to the acquittal of the accused.[2] There were large-scale protests by various activists and women’s organization, who stood up in her support and filed a public interest petition in Supreme Court. This led to the landmark Supreme Court judgement in 1997, which formulated guidelines to protect women from sexual harassment in workplaces, those were the abovementioned, widely known “Vishakha Guidelines”. This was followed by The Sexual Harassment of Women at the Workplace (Prevention, Prohibition, and Redressal) Act and Rules 2013.[3]

But applying these guidelines to complaints within the Judiciary has been an uphill battle.

Courts as workplaces

In November 2013, a young lawyer in a blog post[4] stated that she had been sexually harassed by a (now retired) Supreme Court judge, Justice Ganguly, in the previous year. The news shocked the legal fraternity as well as civil society. As a result, the Supreme Court constituted a three-judge committee, which submitted its report on  November 28, 2013. [5] This report never saw light of the day.

Emboldened by the complaint filed by this young lawyer, another graduate of NUJS Kolkata in January 2014, alleged that she was sexually harassed by a then-sitting Supreme Court judge in 2011[6].  In 2013, the survivor, even swore an affidavit detailing the sexual harassment she was subjected to by Justice Swatantra Kumar. [7] But on December 5, 2013, Supreme Court after a full court meeting came out with a notice, absolving itself of any responsibilities towards the harassment caused by these retired, but at-the-time-sitting judges.

The notice stated, “As decided by the full court in its meeting dated December 5, 2013, it is made clear that the representations made against former judges of this court are not entertainable by the administration of the Supreme Court,”[8] Appealing against the notice, on January 2014, the NUJS graduate filed a petition dealing with lack of mechanism to enquire into the complaints of sexual harassment against all judicial officers, sitting or retired judges, whether while holding office or not.

After eight long years, the Supreme Court will now hear this plea seeking framing of guidelines on how to handle complaints of sexual harassment against sitting/retired judges on November 15, 2022.

During these long pending years, survivors of sexual harassment by the judiciary have faced a tough and uphill battle. One Additional District and Sessions Judge (ADJ) of Madhya Pradesh complained of sexual harassment by a Judge on July 3, 2013, In response she was transferred from Gwalior to Sidhi on July 7, 2014. On July 9 and 14, the ADJ made representations against the transfer, since both the representations were rejected, she was left with no other alternative but to resign (Due to her daughter’s education she could not accept the transfer).

She continued with her complaint and on December 15, 2017, a three-member Judges Inquiry Committee [JIC] was set up by the Chairperson of the Rajya Sabha, to probe into charges of sexual harassment as alleged by the woman judge against the then judge of Madhya Pradesh High Court Justice S. K. Gangele. In its 135-page report the committee found, that the woman judge’s transfer from Gwalior district to Sidhi district was punitive.[9]

Eventually in February 2022, the supreme Court directed the Madhya Pradesh High Court to reinstate,forthwith, the woman Additional District Judge (ADJ) who had resigned from service in 2014 alleging sexual harassment by a High Court judge.[10]

The worst was yet to come.

On April 2019, A 35-year-old woman who used to work as a junior court assistant at the Supreme Court of India wrote to 22 judges of the court alleging that Chief Justice of India, Ranjan Gogoi had made sexual advances on her at his residence in October 2018.[11]

In her letter to the judges, she describes the victimisation she and her family suffered after she rebuffed the Chief Justice of India. She was terminated from service in December 2018. Her relatives who were employed in police department were suspended in December 2018. There was a criminal complaint of cheating filed against her and her entire family was detained in the police station.

On January 11, she was forced to apologise to the wife of Justice Gogoi in the most humiliating manner. Later her relative employed in Supreme Court as attendant was also terminated.

She had no alternative but to address the Judges outlining the entire situation.

Travesty of Justice: In the highest court of a democratic country The next day on a Saturday, April 20,  2019, the Supreme Court called a special hearing, through a bench consisting of two Judges besides the Chief Justice of India, against whom the allegation of sexual harassment was made. With no notice given to the aggrieved woman, CJI not only declared the allegations false but further stated that these allegations threaten independence of judiciary.[12]

This was a shocking breach of procedure, wherein the person against whom the allegations were leveled, was in fact presiding over the ex-parte hearing. Through this hearing the Supreme Court acted in no way different from the many accused powerful men who resort to maligning the complainant by citing past histories and by imputing ulterior motives.

After much public protest, an in-house Committee was formed of three judges of Supreme Court. [13] The constitution of this committee itself was in contravention of the spirit of the 2013 POSH Act and the guidelines laid down by the Supreme Court itself in the Vishakha Judgment of 1997. The committee in violation of these guideline, neither had any external member nor was it headed by a woman. In spite of this the complainant participated hoping to get a fair hearing.

When this committee started the hearing, it denied to the aggrieved woman, the right to be represented by a legal person of her choice, completely ignoring the unequal balance of power not only between the parties, but also between the complainant and the Committee itself. The committee did not follow laid down procedure by law, proceeded ex-parte and on May 6, 2019, concluded that “no substance in the allegation contained in the complaint”[14]

Women’s organisations, as well as numerous activists, lawyers wrote number of open letters [15] to Supreme Court judges demanding that proper procedure as laid down by the Supreme Court itself be followed. There were numerous protests outside the Supreme Court.[16] [17][18][19]

There was a continuing, deafening silence from the judiciary.

Justice was not only denied, but the highest court indulged in violation of its own orders in favour of its brotherhood, making a mockery of law of the country.

The struggle of survivors against sexual harassment continues.

Now, on November 15, the Supreme Court will hear the plea seeking framing of guidelines on how to handle complaints of sexual harassment against sitting/retired judges. It remains to seen if the Supreme Court will abide by its own guidelines, establish proper procedure which will guarantee justice to the survivors of sexual harassment within and by the judiciary and through this, regain the lost trust of women and society in general.

The writer is a feminist and activist  from the women’s and civil liberties movement

 

[9] https://www.scconline.com/blog/post/2022/02/11/harassed-transferred-left-with-no-choice-but-to-resign-read-how-this-mp-district-judge-won-half-the-battle-in-alleged-sexual-harassment-case-as-sc-orders-her-reinstatement/

[10] https://theleaflet.in/sc-directs-reinstatement-of-female-adj-who-had-resigned-in-2014-alleging-harassment/

[11] https://scroll.in/article/920678/chief-justice-of-india-sexually-harassed-me-says

[12] https://www.indiatoday.in/india/story/cji-led-supreme-court-bench-hold-unusual-hearing-on-matter-of-great-public-importance-1506092-2019-04-20

[13] https://timesofindia.indiatimes.com/india/in-a-first-3-judge-committee-to-probe-plaint-against-cji/articleshow/69016104.cms

[14] https://indianexpress.com/article/india/cji-ranjan-gogoi-sexual-harassment-allegations-clean-chit-woman-says-worst-fears-have-come-true-5713932/

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]]> Reflections on My Young Neighbour Who Felt Its OK to Kill Junaid https://sabrangindia.in/reflections-my-young-neighbour-who-felt-its-ok-kill-junaid/ Tue, 11 Jul 2017 05:56:57 +0000 http://localhost/sabrangv4/2017/07/11/reflections-my-young-neighbour-who-felt-its-ok-kill-junaid/ In the Name of Junaid? "Fear of intrusion by the Other is what drives our individual and collective life, politics, our reactions to the acts of terror…"   Image Courtesy: Sandhya Gokhale   “Why are you mourning Junaid’s death?” the boy next door was asking me.  Was he asking for an explanation of my act […]

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"Fear of intrusion by the Other is what drives our individual and collective life, politics, our reactions to the acts of terror…"
 

Image Courtesy: Sandhya Gokhale

 
“Why are you mourning Junaid’s death?” the boy next door was asking me. 

Was he asking for an explanation of my act of mourning or a narration of Junaid’s death? I was perplexed.  Assuming it was the latter I directed his eyes to a headline in the newspaper. “Oh that recent train killing?” The ease in his tone was chilling. “I’m sure those brothers must have done something wrong. ungali ki hogi, to hum chup baithe kya? Unko lagta hai saari duniya mein aatankwad phaila rahe hain to Bharat me bhi kar payenge. Hum gaumata ka dudh peete hein, yahaan khaate nahi usko… mundi neeche kar hi chalnaa hoga yahaan  rahana hai toh!”

I was speechless with this onslaught of words. Each sentence was loaded with prejudice, and hatred, endorsing the stark divide between “him” as a gaumata-ka-dudh peeta beta and “them”’ as the Pakis / the terrorists / the beef eaters. His phallic words spread a wide fault-line on the other side of which I saw him closing his house door behind him. 

In a fraction of a second, all my fond memories of him flashed before me – him crawling through the corridor between our two houses… feeding him when his hand was in a plaster… giving him my heartfelt blessings before his exams… gifting him Thoreau’s Life Without Principle just last year on his 21st birthday. 

The next second my mind went blank. I felt numb. How was I so completely oblivious to this aspect of his being? Had he been harboring this venom all through our interactions and never spelt it out? Had he grown up conditioned to think these thoughts or was he converted at some stage? Has his world been so monochromatic? Why didn’t he share all these thoughts with me? Probably he never gathered the courage to… But then, why did he spell it out now? Was he suddenly feeling empowered to face me? I heard Freud’s murmur in my ears, “a neighbour is a traumatic intruder.”  

When I was young, I was told that the perpetrators of heinous acts were evil people and even embracing such thoughts was monstrous. But this boy is not an archetypal monster. The attackers of Junaid were not monsters either; they were just ordinary train passengers like him and me. What is entrenched in us as humans – the violence or being away from it? It was a moment of revelation for me when I realised that he was who I was not… or maybe he is who he is because of me who he is not!

This incident reminded me of a famous anecdote. A German officer visited Picasso in his Paris studio during the Second World War. There he saw Guernica. Shocked with that chaotic modernist painting, he asked, “Did you do this?” Promptly Picasso replied, “No, you did this!” Today, the dichotomy between the ruling majority and the ruled minority is facing this unary: ‘p and not p’. But are these two worlds based on empirically verified numerical truths or merely perceived truths? The underlying thread that actually binds this divide has always been one of violence. The violence implicit in the classical binary of the oppressed and the oppressors based on the combinations of caste, power, wealth, gender etc., operates vertically. There is an inherent or adopted hierarchy which dominates and gears the violent motions. But in the present scenario, the motion is horizontal, and horizontally manifesting the cultural violence. My neighbour and I too are the participants of this violent frenzy – he as a participant or “who he is” with his set of thoughts, and I as a bystander or a protester standing in negation of “who he is not”.

Why is everyone feeling so restless? What has gone wrong? Why are we feeling as if one is trapped in the eye of a storm? History has recorded enormous wars, ethnic cleansing of millions between 9th and 7th centuries B.C., the Nazi Holocaust’s annihilation of six million Jews, gypsies and homosexuals, the Turkish massacre of Armenians, the Pol Pot killings, the genocide in Rwanda and former Yugoslavia, the bloodbath in the Arab world, the riots during the Partition of India, and many more such examples of insanity. Now when the destruction of Khajuraho is an immediate and present danger, the painful fate of Bamiyan Buddha has hit us hard. Now that the present phenomenon of mass frenzy is at our doorstep, the outburst of my neighbour can well be contextualised in the frameworks articulated by Zizek and Galtung. 

In his book Violence: Six Sideways Reflections, Slavoj Zizek has elaborated a politics of fear in relation to his concept of the “Neighbour” – that is to say “fear of neighbour is the ultimate cause of violence”.  The neighbour is accepted and accommodated only so far as the “Other” does not intrude upon, and remains at a nuisance-free distance. Fear of intrusion by the Other is what drives our individual and collective life, politics, our reactions to the acts of terror, and our responses to the Other. In this sense the Other is, in actuality, ones enemy. Our lack of respect for the Other, particularly the vulnerable Other, leads our blindness to contradictions in justifying our heinous, torturous acts even when it abrogates the ethics which the communities abide by for centuries. 

Zizek further articulated the difference between subjective, objective and symbolic violence. Subjective violence describes physical acts of violence: lynching, shootings, riots, wars. Objective violence is systemic violence that creates the conditions for the manifestation of subjective violence. Objective violence describes the inherent violence of a system, not only the threat of physical violence but also “the more subtle forms of coercion that sustain relations of domination and exploitation”. We assess an act of violence, against a presupposed standard of what the “normal” non-violent situation is. Symbolic violence camouflages the systemic violence through language; it masks its own trace, maintaining an implicit presence of the objective violence while engineering the social reality. In fact, Social Media is a form of symbolic violence that creates, structures and regulates the collective discourse. Language, through certain coined terms like “presstitutes”, “deshdrohi”, “anti-national”, “traitor”, “boat people” or, “refugees”, by itself creates an atmosphere of unrest and symbolic violence. Such terms define and alienate the Other while drawing the entire ambience of persons who are dissenting with the popular ideology, or are keeping independent minds or are running away from their country seeking asylum in another country and who are intruders or trespassers. Such terms place the so-labelled subjects in a political sphere and outside of the cultural domain stripping them of any sympathy, civilian protection or dignity. This in turn provides the necessary justification to be violent towards them. This symbolic violence of condemnation or the objective violence of authoritarian control thus perpetrate the systemic violence which in turn circulate the air of symbolic and subjective violence. 

The pathology of violence has also been dissected by Johan Galtung (a Norwegian peace theorist) in terms of direct, cultural and structural violence. By “structural violence” he meant a situation “when human beings are being influenced so that their actual somatic and mental realisations are below their potential realisations i.e., the systematic constraint on human potential due to economic and political structures.” By “cultural violence” he implied those aspects of culture, the symbolic sphere of our existence reflected through religion and ideology, language and art that can be used to justify or legitimise direct or structural violence. Military parades, large cut-outs of the Leader, inflammatory speeches, labels or symbols like cows, flags, national anthems are all forms of cultural violence which makes use of violence look or feel right or even legitimises that use, or at least help perceive it as “not wrong”. Galtung further analyses, “One way cultural violence works is by changing the moral color of an act from red / wrong to green / right or at least to yellow / acceptable. Another way is by making reality opaque so that we do not see the violent act or fact or at least not as violent. These ways impend consciousness formation and mobilisation, two conditions for effective struggle against exploitation. Penetration, implanting the top dog inside the underdog so to speak, combined with segmentation, giving the underdog only a very partial view of what goes on, will do the first job. Marginalisation, keeping the underdogs on the outside, combined with fragmentation, keeping the underdogs away from each other, will do the second job.”

While explaining the impact of all three forms of violence on the social reality, Galtung has used an apt analogy of an earthquake.  Direct violence is a visible event like the earthquake, structural violence is an invisible process like the movement of tectonic plates, and cultural violence is an invariant like the fault line. 

Every time my handsome cat Schrodinger urinates in his litter box, the sand gets clumped into hard blocks which I can easily scoop out in order to ensure a hygienic environment. The venom spat out by my boy next door forced me to place those violent clumps into a proper perspective. I have realised that this process of cleansing is not going to be easy. The toxin is pervasive. It cannot be scooped out. This cumulative scourge in the form of violence and the willful blindness of the majority has set the fault line wide and deep. I cannot assess at this point what is more perilous – the ideological normalisation of violence or the marginal outcry against it? 

The boy has already closed his door behind himself. What shall I do? Shall I find him through the void stretched all along the corridor that once connected him with me? Or shall I just turn the knob, walk in and close my door as well? What shall I do in the name of Junaid?

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