Updated: October 28, 2018 6:57:39 am
Justice (retired) Sujata Manohar was part of the three-judge Supreme Court bench that laid down the landmark Vishakha guidelines in 1997 to address sexual harassment at the workplace. With several women speaking out as part of India’s #MeToo movement, talking about instances of harassment by men in positions of power, Manohar recently said that “it is time to rethink” the law to address incidents that may have occurred in the past — from framing new norms to relooking penal provisions. Manohar, who had a long career as an advocate, was elevated to the Supreme Court in 1994, becoming only the second woman judge of the Supreme Court after Justice M Fathima Beevi.
SUJATA MANOHAR: The #MeToo movement has two aspects — social and legal. The movement is very crucial because it is for the first time that a woman feels confident of speaking out against harassment. Earlier, women hesitated to complain about sexual harassment. They feared the stigma — how do I prove the allegations, family may not like it, I may be prevented from working, I may be sacked and, what happens when the complaint is against the boss… Women could not speak out. The fact that they are speaking out now is in itself a sign of empowerment. And so, the #MeToo movement is a movement towards women’s empowerment in the economic field.
However, from a legal point of view, there are some problems… A person may argue that a woman can make a false complaint against me. So, we need a system which can look at complaints and decide whether it is true or not. Then that takes you into the area of what kind of action do you want — do you want criminal action, do you want your your employer to take action, or do you want to rely on social sanctions. Today, so many women are complaining against a person in authority and that may result in resignations — that is the social aspect.
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Coming to the legal part: what happens if the person does not resign? How do you go about it? We have provisions in the Indian Penal Code now, since 2013, under which sexual harassment is a crime and there are provisions for imprisonment, fines etc. In my view, it is not really adequate. I would like to have more sociologists, psychologists and psychiatrists to be associated with the process to find out what kind of remedy is possible and to decide whether a person is stating the truth or not.
I would also like to expand the concept of harassment. It is not just sexual harassment but harassment because the person is a woman. We see that a lot of women, despite doing good work, are being continuously condemned or told that they are no good, which demoralises them. It probably happens in all professions where mistakes by women are blown up. So such old patriarchal attitudes persist in different ways at different levels in society and it does hurt women. For this, the ultimate remedy will be a social one. We need education, we need to sensitise people, they need to accept that a woman can also work. A change in attitude is basically the ultimate answer.
MAYURA JANWALKAR: What happens when a complaint is made 10-20 years later — there may be no witness, no evidence. The victim couldn’t complain earlier because the environment was not conducive but that doesn’t make the charge untrue.
See, even if an incident happens many years ago, you can hear both sides. You can cross-examine and you may be able to make out as to who is telling the truth. That happens with dowry and criminal cases that are reported after a long time. We look for evidences that are available. She may have written a letter, visited a psychiatrist…
MAYURA JANWALKAR: You said recently that ‘it is time to rethink’ the Vishakha guidelines. Should it be done in a way so as to help victims come forward even if the incident took place many years ago?
You have to modify the guidelines. It (Sexual Harassment of Women at Workplace [Prevention, Prohibition and Redressal] Act, 2013) was basically meant for those working in the same organisation — somebody sexually harassing a woman who is working under him. But then, what happens when a complaint is made after years and the man in question has left the organisation. A committee within the organisation is not going to have control over him. Even the woman may have left. So we need to modify things and work out as to how we can deal with complaints made after a long period. We need some fresh thinking. Maybe we need fresh committees or inter-state committees. We have to sensitise committee members, judges and the society as well. The #MeToo movement is doing well in sensitising the society. We have to prevent misuse as well and that can happen only if we have a proper inquiry committee.
SHUBHANGI KHAPRE: The #MeToo movement has been largely restricted to urban spaces, whereas in rural areas the exploitation of women is much more rampant.
Yes, it is a problem, especially in areas where old feudal mentalities prevail, where the man thinks he can exploit any woman. These women in rural areas need support from NGOs so that they come forward and complain. Also, the risk is much higher for these women if they speak out. So, the movement will take some time to filter down to rural areas, but it is necessary.
RASHMI RAJPUT: What legal options are available to women in situations where the law isn’t very strong, like when a complaint is made after 10-20 years or in the case of molestation?
The penal code has been amended and sexual harassment is a crime. It does not provide a time limit within which you have to complain. The limit is only for local committees. Under the criminal jurisdiction, a woman can complain even if it’s an old crime. She has to ultimately establish what she is saying is right.
SHAJI VIKRAMAN: Justice Gautam Patel of the Bombay High Court recently spoke about the ‘nauseating patriarchy’ in the legal profession. What has been your experience?
Bombay is more civilised than the rest of the country. I have not had an unfortunate experience, but when I was in Delhi, I did see that subconsciously or unconsciously, some of the women were treated rather roughly in my view. I think my presence helped. The patriarchal notion, that women are not in the right place when they are working outside their homes, persists. People may not realise it sometimes but it is apparent in the treatment that women are meted out.
Justice Patel was right when he said judiciary needs sensitisation. Teachers in universities… all areas need sensitisation. There is a need for sensitisation everywhere in the workplace.
MAYURA JANWALKAR: Since you became the first woman judge of the Bombay High Court in 1978 to now, have things changed for women in the legal profession?
Things have changed for the better. Compared to the time I became a lawyer, there are many more women in the profession now. I am talking about 1958-59, when there were only two-three women who were practising in the Bombay HC. Back then, women were there temporarily. If they got married or had children, they would leave. Today, however, people have accepted working women and they know they are good at it. There is a definite improvement in participation of women now.
MAYURA JANWALKAR: The Supreme Court has had eight women judges in 68 years. Do you think women still have a long way to go?
In the lower judiciary, there are quite a lot of women. For appointments to higher judiciary, there are examinations held across the states which you need to qualify. A lot of women don’t go because it is a transferable post. In higher judiciary, lawyers who are good, competent and have integrity are picked up for judgeship. Unless women reach a certain level in their practice, they will not be noticed. So while the Supreme Court has had fewer number of women judges, the Bombay HC has had about 10-11. The Delhi HC has had many women judges. About 25-30 years ago, there was not a single woman judge. Things are improving.
MAYURA JANWALKAR: The Ministry of Women and Child Development had issued a handbook where ‘unwelcome social invitations with sexual overtones commonly seen as flirting’ was referred to as sexual harassment. There has been a lot of debate on what constitutes harmless flirting and what doesn’t. How does one explain that?
I think you need to ask the Ministry how they arrived at this definition. We got our definition from the recommendations of the CEDAW ( International Convention on the Elimination of All Forms of Discrimination against Women). I don’t know about the other things. They shouldn’t make it impossible for anyone to function.
SHAJI VIKRAMAN: There are surveys in the US where people have said that they are sceptical of claims made by women. Is there a risk of that happening here?
It is too early to say whether that will happen or not. But that is why we need more sociologists involved in this, to find out what is the percentage of bogus and genuine complaints.
ANANT GOENKA: In the backdrop of the protests happening in Sabarimala, do you think the courts should have intervened in the matter?
There are a lot of practices in many religions which don’t keep in mind the equality of women at all. Now we have said that in our country we will have no discrimination on the grounds of sex. So long as your core religion is not affected… there are lots of practices associated with it which are wrong. I think they (the women) should go (to the temple). I am in favour of the Supreme Court judgment. It was the right decision.
SHUBHANGI KHAPRE: Over the past decade, several controversial issues that should have been taken up by the Executive have landed in court.
I don’t want to comment on that but unfortunately the functions which should have been performed by Parliament have not been performed, whatever the reasons. The Constitution does give the Supreme Court the authority to intervene.
ANANT GOENKA: Are you surprised by the scale of the resistance to the Sabarimala verdict in Kerala?
I don’t know what is actually happening on the ground in Kerala. It is a highly educated state. I don’t know whether people at large are supporting it (the protests). I don’t know what the people actually think. Is it politically fomented or is it genuine? I don’t know.
Also, the state government must enforce the verdict. What is the problem? If a group of people are preventing women from going (to the temple), surely, the state can stop it. If the people (who have been stopped from visiting the temple) move the Supreme Court, the state will have to answer. It is embarrassing for the state and not the Supreme Court that they are not able to enforce a simple decision.
SAILEE DHAYALKAR: Justice Gautam Patel said some 11 judges are going to retire in the next one year and the workload is going to double for all the judges in the Bombay High Court…
It’s quite simple, you have to appoint the judges. People should also say that we want judges to be appointed. It should not only be left to the judiciary to tell the government that please clear the names and appoint the judges.
SHUBHANGI KHAPRE: A lot of questions are being raised about the role of the judiciary…
Anybody can raise questions… You take a decision and then somebody will say why it is this way… Normally, the judgment speaks for itself. It gives reasons for a particular decision. There is a system of appeals, and if you don’t agree with the reasons, you can approach a higher court. It is the only area where there are reasoned decisions. Where else do you have it?
SHUBHANGI KHAPRE: What is your view on the press conference held by the four Supreme Court judges against the Chief Justice of India?
They might have felt that way. I don’t want to comment on it.
MAYURA JANWALKAR: One of the shortcomings of the #MeToo movement is that it does not reach people who don’t know the hashtag, such as the domestic helps who may be sexually harassed at the homes they work in. That is their workplace. How can the movement reach these women?
There are various ways of doing that. You could have an organisation for women domestic workers. An NGO can support them. Women who are struggling to speak out and cannot come on their own (to complain) can be supported by other social organisations to come forward. That is possible.
SADAF MODAK: Following your judgment in the gangrape case of Bhanwari Devi, a social worker in Rajasthan, local complaints committees were set up for women in the unorganised sector. But these bodies get barely five-six complaints a year and they don’t even offer effective remedies. Do you think this aspect needs a relook? Should such committees get more power?
Basically, it is a question of education. If someone doesn’t complain, you cannot force them. If a woman feels that some wrong has been done to her and if she wants to take action, there should be somebody available to help her. That is all I can say. You cannot push people into complaining.
MAYURA JANWALKAR: Do you think the environment is now more enabling for victims to come forward?
We will have to see what the impact (of the #MeToo movement) is. We have to see how the women react to it and what they do.
MAYURA JANWALKAR: What should the next step be for the movement to sustain itself?
The next step is for women to get training, go to work and do well.
ANANT GOENKA: A few industries, such as the film industry, have seen more complaints than the others. Could there be an industry-specific policy without the government’s involvement?
It is possible. The industry could set up its own monitoring body to ensure that such complaints are looked into and women are treated properly. It is quite possible and may not be a bad idea. I would encourage every industry to introspect and I would also encourage women to introspect. Everybody should do it.
SHUBHANGI KHAPRE: Would you like to comment on the infrastructure in the civil courts?
In the lower judiciary, when I was there, several courts did not even have the books, they would depend on lawyers to bring them and show them the necessary provisions. There was no clarity on whether the law was amended or not. You can check up what the situation is like now. Back then, many courts didn’t have stenos, people would write the judgments by hand. Even today, you don’t have proper housing for judges. In smaller towns, to rent an accommodation is also a bit of a problem. There are not enough courtrooms… the infrastructure is not there.
Secondly, you must appoint more judges, you must have more administrative staff, more support staff, you must have a place for them to stay, a place for the judges to stay, courtrooms, you have to expand everything.
SHAJI VIKRAMAN: What are some of the judicial reforms that the country needs?
There are so many. You need to do much more to expand the system. I think there is a report which says we have 19 judges for 10 lakh people, while the rest of the world has 60 or 65. Now how do you expect any system to function with this kind of restraint? You need a five-year plan for the expansion and slowly build up the system, so that you have competent people with integrity. I think to rush the expansion would be a disaster. You need good people to come in and give them all the facilities for functioning properly. We have many judicial training institutes now, which is a nice thing. We have to uniformly increase the level of training, we require better legal education. The new law schools are doing well, but the older colleges not so much. You need to have better quality of education. I think that applies to all areas, not just the judiciary. So there are many things which require a systematic approach, not just people talking about it. They have been talking about these things for the past 20-30 years.
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