The Supreme Court of India is presented with a unique predicament. The apex court, which has been the provenance of many judicial reforms, is forced to confront the underlying patriarchy and lack of gender sensitivity within the judiciary by nine women lawyers.
Supreme Court advocate Aparna Bhat, along with eight lawyers, filed a Special Leave Petition opposing the bail conditions imposed by the Madhya Pradesh High Court on a Ujjain-based man accused in a molestation case filed by his neighbour.
In what was arguably another attempt to encourage a 'compromise' between the survivor and her alleged abuser in place of speedy justice, the high court had asked the woman to tie rakhi to the accused and accept Rs 11,000 as Raksha Bandhan 'gift' from him. The man was also made to 'promise' that he would protect the survivor "to the best of his ability for all times to come".
While the 'condition' in question had already been met by the time the SLP was heard by a bench of Justices AM Khanwilkar and BR Gavai, the apex court did accept the need to sensitise the judiciary. The court asked for suggestions from Attorney General of India KK Venugopal, the SC Bar Association president Dushyant Dave and senior advocate Sanjay Parikh, appearing for the group of women lawyers, to recommend ways to inculcate gender sensitivity in the judiciary. The Supreme Court will now consider issuing guidelines for judges for laying down bail conditions for sex crime offenders on 27 November.
But the women who triggered the change feel there's still a long way to go in building a justice system which is intimidating for the abuser, and not daunting for the victim. They say that misogyny and gender stereotyping is a cultural and societal problem, which is compounded when it is reiterated and reinforced in daily decisions, observations and conversations inside male-dominated courtrooms.
Lawyer Kanaka Latha Olavatth, one of the nine petitioners, said, "When a person goes through a sexual assault, they go through shame, guilt, embarrassment and a lot of emotions. They constantly question themselves: Will I be believed, will the authorities take my complaint, what will the society think, how will my family react... And so when they finally gather the guts to knock on the court's door for some sort of legal recourse, this is the kind of judgment you get at the end of it. I mean you are forced to reconsider; is this the kind of security a woman gets? Is this something she even wants? Is this why she went to court despite having to deal with all that?"
The petitioners asserted that such rulings were not only further victimisation of the complainant but could also set a dangerous precedent, undoing years of work it took to stop the trend of encouraging a compromise between the sexual offender and the survivor by way of marriage or mediation. They said that their SLP and efforts did not just pertain to the Madhya Pradesh HC order alone, but insisted that courts across the country should be restrained from issuing such orders and observations.
The petitioners said in their SLP that such observations are not only antithetical to the law and principles that govern India, but they may also encourage other high courts as well as the trial courts that fall within the jurisdiction of the Madhya Pradesh High Court to pass such regressive orders.
"In this judgment, we all felt as a team, that it was very inappropriate and more humiliating to the victim. These kinds of judgments can also give rise to many more instances and can set a precedent. It also becomes an easy way to get away after committing a wrong. We have very high expectations from decisions of the court, especially the high court, and judgments such as this are very disappointing," said Meenakshi KC, also a lawyer by training who has been a part of the Internal Complaints Committee of a few corporate organisations.
The lawyers argued in their SLP that these conditions inflict a secondary trauma on the survivor by making her face the accused and leads to her 'further victimisation' in her own home. The forceful cash gift was an insult to the injury, akin to advising the survivor to bury the hatchet and move forward.
Susmita Durg, also a lawyer and head of the ICC (Internal Complaints Committee) at an IT organisation, explained why the cash component enforced on the woman in this case, notwithstanding the judge's intentions, were extremely different from a situation where the courts order economic compensation to survivors of sexual assault.
"The famous cliche goes that money can't buy peace, money can't buy happiness, money can't buy a home. I would like to add one more here: Money can't buy an apology. Compensation should be along with a judgment where the survivor should feel that yes, it is in my favour. Over here, it's like saying that, okay, a wrong has been committed, but it can be compensated by way of the forcible payment. This is like somehow trying to buy an apology from the person who was molested, without even thinking whether the survivor would like to have that money or not," she said.
"Also given the circumstances that most victims have to face in approaching the justice system, I think it's safe to assume that if she wanted an apology, she would have agreed to take the apology from her molester long back. But the simple thing is she has approached the court. She seeks justice from the court and not apology or some money," she added.
Bhat further added that the payment was similar to a forceful compromise where the survivor's silence is often bought by their perpetrators.
"Compensation is awarded after the due judicial process. There is a sense of closure and vindication for the person who was wronged. So, when a person is found guilty and then compensation is awarded that is completely different from taking money from the person at the beginning of the trial, which kind of makes it sound like it is to make her keep quiet."
Furthermore, the protectionist undertone of the ruling aside, the nine women petitioners also raised legal issues such as whether in a case seeking bail, it is appropriate for a court to impose extraneous conditions which allow contact between the accused and the complainant. The accused was asked to visit the survivor's home for the so-called rakhi ceremony even when the primary charge against him was of forcefully entering the survivor's house and molesting her inside her own space.
Attorney General Venugopal agreed with the objections raised in the court and said that the bail condition was "no less than a drama" while noting the need for educating and sensitising the judiciary. He suggested that law students should be taught about gender issues while questions on the subject need to be made a part of the judicial services exams.
Petitioner GS Veena, who has been a professor of law for more than 25 years, agreed to Venugopal's suggestions made in court, adding that in her experience many students even after five years of law school, don't have a broader perspective on gender issues.
"The gender role play they have experienced around them while growing up is so deeply entrenched that sensitivity and empathy does not come naturally to many of them. They have probably seen how their parents react to each other, or other instances of poor gender role-play at home or elsewhere. So this is not something that can come naturally to a lot of people. It needs to be explained and taught."
She bats for the introduction of gender issues as a part of the regular curriculum, stating that treating it as some extracurricular activity won't suffice. She also says that in her experience, the gender roles and pre-existing notions are so hard to break, that students, including women, often do not show that sensitivity in day-to-day life.
"I think it's very important to inculcate that sensitivity because these students turn out to be future judges and lawyers and if we are not sensitising them in the right place at the right time, they are eventually going to weigh in on issues that they won't be able to understand. And when as judges if they give rulings on such issues, their judgments will obviously lack that sensitivity," said Veena.
She also said that true change in the society, and likewise in the judiciary, can be reflected when the learning begins at home.
Bhat, however, points out that waiting for a new crop of lawyers, judges and law enforcement officials alone won't suffice.
"I completely agree that the teaching has to begin and it has to come from home. But at the same time, we also have to find avenues to train people who are in a position " and justice dispensation, law enforcement these are all positions with which comes great responsibility. So there has to be constant engagement with them with respect to gender dialogues and gender sensitisation."
Lalita Sivaraman Iyer, a former advocate and a petitioner in the case says that educating the judiciary is only like scratching the surface. She talks about how police, who are often the first tier in the system the survivor interacts with, are also part of the problem. She points out that the ingrained patriarchy often prompts the society to meet the survivor with hostility and disbelief, rather than a supportive approach.
"I feel that those who are in the position of influence, like the police, must be trained to take each complaint seriously, especially when it comes to violence against women. It's been drilled into us since centuries that women should keep quiet. So, if a woman comes forward, then there is definitely something to it. So, the culture that tells us to disbelieve first needs to be eradicated. So people in law and order, definitely the judiciary, politicians, seers, or the media and entertainment industry, anybody with the power needs to be held accountable when they repeat patriarchal values¦ we have to chip away at the inherent misogyny at all levels. There has to be a complete overhaul of everything," says Iyer.
Speaking to Firstpost about their journey from feeling wronged and frustrated about such cases to turning agents of change, the petitioners say that their own personal baggage, as well as their experience as lawyers all, contributed to pushing them to a point where they couldn't let the status quo prevail.
Susan Verita D'Silva, a petitioner in the case and a lawyer by training, says that the seeds of this fight were sown when a Karnataka High Court judgment, had included deeply problematic observations amounting to victim shaming and blaming.
Granting anticipatory bail to a rape accused, the court had expressed doubt over the survivor's version of events because she had said she slept after the crime was committed. "That is not the way our women react when they are ravished," the judge had noted.
However, the remarks were expunged after Bhat wrote to the Chief Justice of India at the time and the three woman judges of the Supreme Court raising strong objections on the reasoning and comments made in the judgment.
"It was the Karnataka High Court judgment which actually got us started on this journey. This is where the whole thing started, where we talked about this and decided how this was wrong and Aparna ended up writing a letter and got those remarks expunged," said D'Silva.
Rama Ramachandra Iyer, a practising corporate lawyer who has worked for women's rights and gender equality extensively, said that when the Madhya Pradesh case made headlines, she decided not to pass up on an opportunity to actually do something about things that she had faced in her years of practice.
"I have represented many women through my 28 and odd years of practice, but this was an opportunity where you could actually try to bring in some judicial reforms while trying to ensure that women are treated as they ought to be. So, this was one opportunity where I am not a lawyer, but I'm a petitioner, a citizen of the country, a woman who has raised the voice against such conditions or conditions that a victim has to go through."
For Bhat, however, the reasoning was equally personal: "When we would go to college, and somebody would trouble us, you know some kind of teasing or catcalling or whistling in the bus. And you know all of us had different levels of bravery. Some were extremely bold; some were too shy. But despite that one thing that was common was that we all had this tendency to try to avoid that situation. We would change buses so that we don't have to face that person. And so somehow, we never got the courage or the support to confront the person who was abusing us.
"And that is something that has bothered all of us. It continues to bother us even today. And we want to make sure that that's not the attitude that the next generation who look up to us has to learn. If the next generation has to confront their abuser, we need to make sure that we facilitate a process for that. And I think that's where we come from."
The petitioners say that the Madhya Pradesh judgment was neither an anomaly nor a lone aberration as far as the judiciary is concerned. They argued in the court as well that the case in point should be enough for the Supreme Court to restrain courts from imposing such extraneous conditions on the survivor.
They feel that this move will at least get a conversation started in this direction.
"We saw this as an opportunity where we thought maybe we could do something about it. And I think this feeling was always there in all of us. It reached a head when this happened. And we said, OK, this is the last straw. We can't keep quiet anymore. Probably this judgement as such may not be that important or big enough, but you know what goes forward from here is what matters. This could set a ball rolling and undo the years and years of work done for gender equality and sensitivity. We decided to do something to try and stop that from happening," says Iyer.
"I mean, I think I can confidently say that this conversation has started in a big way. I mean, we see a lot of people are talking about it. The kind of response we are getting from different people, men and women, gives us hope that we are on the right path," she adds.
When asked whether the petitioners think that such judgments are a result of the inherent bias that the loss of a woman's 'honour' is a bigger crime in comparison to the wrongs committed against her own self, Iyer said that it is not uncommon to come across instances where a matter of assault on a woman is treated as an attack on the family honour, or the honour of the dominant male figure in her life.
She insists that the deep cultural biases need to be obliterated for people to start registering that a case of a sexual assault is foremost a crime against a person. "It is that person who has been wronged, it is she who has been offended, not her husband, not her father, not her brother," says Iyer, adding that when the society learns to make that distinction only then will the judiciary also prioritise the wrong committed against that person while dispensing justice, rather than trying to restore that 'lost honour' somehow.
Talking about the various repeated instances that have highlighted the patriarchal mindset within the judiciary, D'Silva said, "What these things bring forward is the mindset of the people. The judge is probably a reflection of what is the greater psyche and overall thinking of society. There is this deep-rooted patriarchy in this entire system that we live in. Each one of us has felt it. And this is not something that's going to go away in a day. But if we keep chipping at it, I think people like us, lawyers and even journalists who have an ability to go and influence public opinion¦ we are the people who will go out and make this change."