Two weeks ago, I drove from Delhi to Agra for the Taj Literature Festival with lawyer Naina Kapur, known as the author of the Supreme Court’s Vishakha guidelines of 1997.

Headed for a session to debate what happens when watchdogs—the media and the judiciary—fail, we spoke about the impressions we had drawn from the sexual harrassment cases involving Tehelka editor Tarun Tejpal and retired Supreme Court judge A.K. Ganguly. Kapur, who practices preventive law and equality compliance, stumped me when she said that the entire media coverage on the Tejpal case had missed the crucial takeaway of the Vishakha guidelines against sexual harassment at the workplace—that they prioritized preventive action (instead of punitive) by the employer. On the other hand, the judiciary, too, said Kapur, had not complied with these guidelines while probing the Ganguly case. According to her, by constituting the ad hoc three-judge panel (an unprecedented move) to look into the law intern’s revelations on her blog, the Chief Justice of India had lost an ideal opportunity to communicate a strong message of zero tolerance against sexual harassment in the legal profession irrespective of the offender’s status.

What emerged from our conversation, which I followed up with an email interview, was that the Chief Justice seemed more concerned with the preservation of the Supreme Court’s “reputation and credibility"— these two were his own words—and less with justice for the intern. “The appointment of a panel of three Supreme Court judges (without a third party inclusion) was non-compliant with the court’s own decision on Vishakha," says Kapur, adding that the Supreme Court had become complicit in the trend of institutions finding ways to circumvent the clearly stated criteria under the Vishakha complaints committee. By doing so, it had not only set a poor precedent but tarnished the panel’s credibility.

Listening to her, I felt dispirited because when the case first unfolded, I had been among those who felt that Ganguly was not going to escape the law despite his status and designation. But here was Kapur emphatically arguing otherwise, adding that once Ganguly’s actions were prima facie termed sexual harassment and, therefore, a violation of the intern’s constitutional equality (as per the Vishakha guidelines), the Chief Justice’s conclusions were indefensible. “It did nothing to enable the intern and nothing to disable the judge, who arrogantly clings to the chair at the West Bengal Human Rights Commission as if it were his own," she says.

Some of us might want to ask if the Ganguly case represents a minority, or are sexist attitudes common in the legal fraternity?

In 1996, Kapur led an all-India study to survey the perception of judges towards women who came to court in situations of sexual violence. Titled Gender & Judges—A Judicial Point of View and conducted by non-governmental organization (NGO) Sakshi, the survey proved that the pattern of gender bias rooted in myths and assumptions about women was part of the judicial mindset, too, like the rest of the society. “At the same time, judges were open to an equality education programme, the first step towards realizing constitutional equality for women," recalls Kapur.

A 10-year long engagement would follow between advocates, judges and NGOs. “Judges who were receptive to new information about women and sexual violence proved themselves to be remarkably empathetic. That was my experience in the Vishakha public interest litigation, which eventually came before the late chief justice J.S. Verma. He had participated in the programme six months prior to the Vishakha judgement. To have a judge step outside the box and arrive at an enhanced contemporary understanding of workplace sexual harassment as a violation of women’s constitutional rights was a leap of innovation," she adds.

It wasn’t merely just a coincidence then that the same justice Verma, who passed away earlier this year, authored the justice Verma committee report leading to the crucial amendment in the rape law. He also made other exhaustive recommendations on fundamental changes to revamp existent sexism everywhere. By doing so, he left a legacy when it comes to women’s rights. “But the conclusions of the current CJI in the justice Ganguly case will create a different legacy," argues Kapur. She has a point as many questions have been raised after the Chief Justice’s announcement that from now on the Supreme Court will no longer entertain any complaints against retired judges. The takeaway for me—both as a spectator of news and a journalist—is to pause before applauding or accusing and plod through perplexing cases with better information. Like many other people, I had barely realized that the Supreme’s Court’s three-judge panel violated the Vishakha guidelines it had itself set up. It is difficult to accept that the highest court would avoid walking the road it built itself.

Why single out Tehelka’s Shoma Choudhury?

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