The critical issue . For justice’s sake, My Lord

As I write this, the Justice Ranjan Gogoi incident (where the Chief Justice of India was accused of sexual harassment by a junior member of his staff) has receded into the background. The media have given up reporting on it, the Committee has finished its secret work and has concluded that there was no substance in the complainant’s affidavit and things have, ostensibly, gone back to normal.

Except that they haven’t, really.

Somewhere out there is yet another woman who will carry a lifelong sense of injustice. She will join millions of others who carry a similar sense, but that fact will bring her no comfort. There will be no joy in knowing she is not alone. And we will have lost another chance to take that crucial next step towards understanding how to address this complex and confusing problem that confronts us today.

There’s no denying that the Supreme Court has long been seized of the seriousness of the issue of sexual harassment at the workplace. This is why the Court responded so positively to the Vishaka petition and acted to frame the Vishaka Guidelines many years ago. The idea was that the Guidelines would make up for the absence of a law, until such time as the government could frame the required law.

Both things happened, and neither would have happened had both actors not had the political will to make this change.

And yet, both actors, the government and the Supreme Court, reneged on their commitment to gender justice in the recent case. If one accused the complainant of cooking up a conspiracy to target the judiciary, the other supported the Supreme Court’s accusation, and this before anything had been proved. They closed ranks.

Neither thought of that crucial matter: The need for transparency in your own functioning, and scrutiny of your behaviour, especially if you are the lawmakers.

Over the years, because we are such a class- conscious society, we’ve come to accept that the police will flout the law as often as they will impose it, that lawyers too will betray their own profession. But judges? And at the Supreme Court level? Until recently, this seemed to be unthinkable.

You might say that judges, too, are fallible. Or that those who framed the Vishaka Guidelines are not the same people who occupy the Supreme Court today.

But surely this is not about individuals, it is about institutions, it is about institutional ethics and honesty, institutional accountability. If institutions fail their citizens, what then is left?

The Supreme Court and its judges in particular have earned considerable respect in recent times for often being, in increasingly difficult times, the citizen’s only recourse.

That is why it is so difficult to understand why the process was so opaque and seemingly so biased. No one knows how the judges arrived at their decision, no one knows why the complainant was not allowed to have a lawyer. No one understands why the advice of their own colleagues was not listened to.

Even if these were technicalities and the judges in question had stuck to the letter of the law, as interpreted by them, there are other issues at stake. There’s that old piece of wisdom, that justice must be done but it must also be seen to be done. This can’t happen if everything is so opaque.

Over the last few years, as a number of cases of sexual harassment at the workplace have come to the fore, and women victims have begun to speak out, the complexity of the issues we are confronted with have also come increasingly to light.

How to deal with something that happened years ago? How to deal with anonymous accusations? Whose jurisdiction is it if someone working with you is accused of sexual harassment that happened years ago? How to deal with cases that inhabit that liminal space between coercion and consent? How to deal with changing relationships? What about generational differences? How to deal with employers saying they will not employ women any more?

Everyone needs guidance in this — both guidance and understanding. We need roadmaps, we need knowledge. What we do not need is opacity. We need an understanding that the issue we are confronted with involves a hard look at power relations, at patriarchies, at human relationships and more.

This is what women’s groups drew attention to during the recent incident. Time and again they urged that the principles of justice and fairness be followed: Set up an impartial enquiry, give everyone a hearing, take evidence into account, make a judgement and be transparent. It’s only then that people will believe you. Only then the interests of justice will be served. Our Supreme Court and our senior judges — both men and women — have sadly failed us in this.

Can we be blamed for thinking they’re just protecting their own?

Urvashi Butalia

Urvashi Butalia is an editor, publisher and director of Zubaan; Email: blink@thehindu.co.in

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