Abstract
After sixteen years of legal simmering, a law against sexual harassment of women at the workplace found a legislative sanction in 2013. While the state grant to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 (PoSH law) was celebrated by a large section of state feminists in India, there was vehement dissatisfaction among feminist lawyers and academicians around the application and functioning of the new law. The chapter begins with a historical analysis of the Indian legal system and proceeds to an evaluation of the relationship between the theoretical background of the PoSH law and its adoption by legal institutions themselves. Further, the author analyses the application of the PoSH law in the face of complaints of sexual harassment within the legal community. In doing so, a comparative analysis of four cases of sexual harassment against judges of the Indian Supreme court and a Delhi district court between 2012 and 2019 has been undertaken. The author places the evolutionary jurisprudential ‘crisis’ of the Indian legal system at the forefront to highlight the flaws in the practical application of the PoSH law in cases of sexual harassment by victims within the legal profession and understands the ‘theory–practice spiral’ in postcolonial India. This chapter brings home a feminist critique of the ‘borrowed’ colonial legal theorisation for the establishment of gender-equal laws as intended by the Indian Constitution that are not only state-sanctioned but are state-applied.
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Notes
- 1.
Chapter XVI of the Indian Penal Code (IPC) deals with offences affecting the human body. Specific crimes against a woman’s body are laid out in Sects. 304B (dowry death), 312 and 313 (causing miscarriage and causing miscarriage without consent of the woman), 314 (death caused by act done during miscarriage when a woman did not consent), 354 (assault or criminal force to woman with intent to disrobe), 354A (sexual harassment), 354B (assault or criminal force to woman with intent to disrobe), 354C (voyeurism), 354D (stalking), 366 (kidnapping a woman for marriage), 366A (procuration of minor girl), 375 (rape), 376 (punishment for rape), 376A (punishment for causing death or resulting in a persistent vegetative state of the victim), 376B (sexual intercourse by a husband on his wife during separation), 376C (sexual intercourse by a person in authority), 376D (gang rape), 376E (punishment for repeat offenders).
It is important to note that Section 326A (voluntarily causing grievous hurt by use of acid) and 326B (voluntarily throwing or attempting to throw acid) were inserted into the IPC by the Criminal Law (Amendment) Act, 2013 (13 of 2013), S. 5 for prevention of acid attacks on women but they appear as gender-neutral laws.
- 2.
Social reformers, nationalists, and the Indian Women’s Movement since the colonial period wherein cases of female foeticide, widow immolation, and child marriage constituted ‘violence’, restricting it to the familial space. The unprecedented violence on people during the partition of India was marked by brutal sexual assault on women across the border. The trauma made it difficult to revisit the violence in any dispassionate sense. And feminist scholars have often commented on the curious retreat generally from the women’s question in the decades after independence (Mazumdar, 1985). In post-independence India, the Committee on Status of Women in India Report (1974) came as a jolt to the Constitutional guarantee of gender equality. It presented a stark contrast between the aimed and the achieved effect of government-initiated opportunities for women to realize their full potential as equal citizens of an independent nation. This held true in diverse spheres whether concerning equality before the law or in sectors such as education for women, maternal health-care facilities or land rights, etc. For a while, these issues seemed to have taken precedence over the issue of violence against women.
- 3.
The Department of Social Welfare, Ministry of Education and Social Welfare, Government of India formulated a Committee on the Status of Women in 1971. Its task was to assess the impact of various social welfare schemes on the condition of women, especially in rural areas; to determine the problems of working women; to assess the role of education and family planning schemes on the overall status of women; and to provide suggestions on measures enabling women to play their role in nation-building. After extensive fieldwork throughout the nation, the Committee submitted its report in 1974, highlighting the problems concerning women as ‘vast, complex, and dynamic’. No governmental schemes launched for women’s welfare seemed to have been appropriately implemented, thus presenting a stark contrast between the aimed and the achieved. The Report brought out the miserable condition of women as against the Constitutional guarantee of equality before the law. For details, check ‘Towards Equality: Report of the Committee on the Status of Women in India’ (1974) Government of India. But the Report had its own limitations, which are discussed later in the study.
- 4.
‘Open Letter to the Chief Justice of India’ (1979) was the first letter of its kind. It was written by Vasudha Dhagamwar, Lotika Sarkar, Upendra Baxi and Raghunath Kelkar on September 16, 1979, a year after the Supreme Court judgement in Tukaram v. State of Maharashtra, also known as the Mathura rape case.
- 5.
Geetanjali Gangoli in her article ‘The Right to Protect from Sexual Assault: The Indian Anti-Rape Campaign’ quotes Upendra Baxi: ‘…for several days we were agonised: had we instead of helping the victim ended up further revictimising her? From this at least I learned a major lesson: any activist intervention which tends to revictimise the victim is morally wrong and the concerned activities must bear full responsibility for atonement if that happens…’ (1996: 335).
- 6.
Fuchs and Linkenbach have defined a social movement as a ‘form of collective self-organization for the attainment of social recognition and assertion of rights or existential interests which were denied to a group or category of people’ (2003: 1546).
- 7.
In 1998, Agnes in her meticulous documentation of rape trials after the 1983 amendment seminally argues that the pre-amendment period had seen many favourable judgements when the campaign was at its peak as compared to the post-amendment period. Her argument poses the possibility of public pressure being a better safeguard to ensure justice than what she calls ‘ineffective enactments’.
- 8.
After the publication of the 1974 report, Indian feminists grew sceptical of their engagement with law. Although there was no denial of the emancipatory potential of law, women’s groups believed that weak enforcement of the new laws was an undeniable discrimination at the state’s end, and that law was being appropriated to reappropriate and even legitimize gendered inequality. Kapur (2014) pushed for a more rights-oriented approach in order to curb a highly moralistic and protectionist piece of legislation further gendering the anti-sexual violence laws.
- 9.
In 2004, Menon captured the sentiment of the ailing feminist struggle against the state basing its ‘blunted’ thrust from militant feminism of the 1980s to the ‘nine-to-five feminism’ of the corporatized and market-oriented feminists.
- 10.
The functional background for theorization of the CLA 2013 has been categorized as one of the ‘state feminism’ phases of IWM wherein feminists and women’s organizations throughout the country collaborated with the state constituted Justice Verma Committee in formulating the recommendations for changes to the archaic rape laws.
- 11.
See Kotiswaran (2018) ‘Governance Feminism in the Postcolony: Reforming India’s Rape Laws’ in ‘Governance Feminism: An Introduction’ by Janet Halley (et al.).
- 12.
In ‘Women’s Studies in India: A Reader’, Mary E. John observes the relationship between IWM and law to be swinging from high reliance on the power of law to a more nuanced and critical relationship between law and achievable gender justice.
- 13.
Analyzing the institutionalization of feminism in academic, governmental and non-governmental sites and the depoliticization of the IWM, Roy (2013) elaborates on the anxieties about the present and impending future of Indian feminism.
- 14.
Sen (2000) argues that it is not only reductionist, but to an extent also irrelevant to collapse women’s rights into the question of law and legislation under the assumption of secularity and gender neutrality of the legal system, which itself formulates a discourse between gender justice and law to sanction the dominance of the judiciary.
- 15.
The 2002 IPC amendment took the questions on the victim’s character out of the ambit of cross-examination in a rape trial. In 2005, a sub-section was added to Section 46, CrPC prohibiting the arrest of women after sunset, and enabling only a woman officer to make the arrest of a woman before sunset. The Criminal Law (Amendment) Act, 2008 that mandated the completion of investigation in minors’ rape within three months, an in-camera trial of rape cases by a woman judge, banned publication of names of rape victims, and introduced a victim compensation scheme were all made possible by the constant intervention of women’s organizations through the 172nd Law Commission Report.
- 16.
Sen (2000: 42). This point holds importance because it highlights the intimate relationship between law and the state. Legislation is a state affair while precedence is judicial. Formal legal changes may be suggested by feminists, academicians, women’s organizations, or individuals, but are always necessarily state-sanctioned.
- 17.
Vishaka and Others versus State of Rajasthan and Others [JT 1997 (7). SC 384].
- 18.
The minimum prescribed punishment for sexual harassment has been set at 10 years of imprisonment in the PoSH Law, 2013.
- 19.
By extension, feminist legal theory.
- 20.
The Privy Council was a body of English jurists based in England, who heard appeals from various British colonies. Membership to the Privy Council was not fixed and that often affected the administration of justice. In 1833, by an act of Parliament, the number of members in the Privy Council was fixed at four, and later reduced to three. Now the members of the Privy Council lived in colonies. So, India had its own set of Privy Council jurists, residing in India.
- 21.
Bernard Cohn succinctly brings out the significance of gaining a working knowledge of Sanskrit and Persian for the British to be able to decipher the Hindu law books. He writes, ‘…the motivation for the British in India to learn Sanskrit had a dual basis: at one and the same time there was a scholarly curiosity to unlock the mysterious knowledge of the ancients, and an immediate practical necessity fuelled by Warren Hastings’ plan of 1772…[H]e stated that it would establish the Company’s system of governance on a ‘most equitable, solid and permanent footing’. The plan was based on ‘principles of experience and common observation, without the advantages which an intimate knowledge of the theory of law might have afforded us: We have endeavoured to adapt our Regulations to the Manners and Understandings of the People, and the Exigencies of the Country, adhering as closely as we are able to their ancient uses and Institutions’. (Cohn, 1997: 26).
- 22.
For details on the difference of perception of the British and the Indians on popular legality, see Rudolf and Rudolf (1965).
- 23.
Dhavan borrows the phrase ‘scissor and paste’ cosmopolitan jurisprudence from a lecture delivered by S. S. Dhavan to the Law Faculty at Allahabad in 1964 (1986: 527).
- 24.
Dhavan comments on this as an incredible legal infrastructure that utilised law to ‘cloak both systemic and day-to-day repression in a way that has no parallel in the Third World’ (1986: 528).
- 25.
Women’s movement and the changing character of its relationship with the law have been extensively studied (Mazumdar, 1985; Dhagamwar, 1992; Kumar, 1993; Gangoli, 1996, 2007; Kapur and Cossman 1996; Kapur, 1996; Agnes, 2008; Mazumdar 2000; Agnihotri & Mazumdar, 2005; Butalia, 2005; CWDS, 2006; Arora, 2011).
- 26.
- 27.
For example, when in the 1980s, women’s organizations throughout India came together and mobilized against the issue of ‘custodial rape’, the state was directly held responsible for increasing sexual violence against women.
- 28.
Mazumdar divided women’s question in India into five phases (2000: 12), while Geetanjali Gangoli has explained feminist engagement with law in three ways—exposing patriarchal controls and structures within the law, disentangling ways in which law operates, and campaigning for an extension of rights to women (2007).
- 29.
By assessing the relational approach of legal realists and applying her distributional analysis of CLA 2013, Kotiswaran categorises two types of sexual interactions—(1) Nonconsensual sex between (a) strangers or between known parties without a prior legal relation and (b) Between people with an existing legal relationship, and (2) Consensual sex that is disproved by a third party.
- 30.
‘SC to consider draft rules on sexual harassment at apex court’ accessed on https://www.freepressjournal.in/headlines/sc-to-consider-draft-rules-on-sexual-harassment-at-apex-court on 27.02.2016.
- 31.
‘SC forms sexual harassment committee for women lawyers’ accessed on https://www.hindustantimes.com/delhi/sc-forms-sexual-harassment-committee-for-women-lawyers/story-YVSQhqjrQDwr7RBhEkbBwM.html on 27.02.2016.
- 32.
In a 2016 interview with The Week, senior lawyer Indira Jaising said she was sexually harassed in the corridors of the Supreme Court. Calling the Indian judiciary and the Bar ‘highly patriarchal’, she iterates the predicament faced by women lawyers who are self-employed and do not have the protection of the government to intervene in cases of sexual harassment. The article can be accessed on https://www.theweek.in/theweek/cover/interview-indira-jaising-senior-lawyer.html.
- 33.
- 34.
Details are discussed in the next case.
- 35.
See ‘Law Student Sexually Harassed by Ex-Supreme Court Judge: Case is Not Unique, But Speaking Out Is Nearly Impossible’. https://www.legallyindia.com/201311114099/Interviews/sexual-harassment-supreme-court-is-common accessed on 24.09.2018.
- 36.
See ‘AK Ganguly case: Intern’s charges made public with her consent’ accessed on https://www.firstpost.com/india/justice-ganguly-case-interns-charges-made-public-with-consent-1289377.html on 24.09.2018.
- 37.
See ‘Intern files SC transfer petition vs Swatanter Kumar: Won’t get a fair trial in Delhi HC, senior counsel refuse to act as suit ‘engineered’ in favour of ‘ex-judge’ accessed on https://www.legallyindia.com/201405144712/Bar-Bench-Litigation/internjudge-transfer-petition-swatanter-kumar. The entire order on the Transfer Petition filed by the intern can be accessed here.
- 38.
An ex-parte order is the one in which the other party is neither present nor heard before or while passing an order or a judgement.
- 39.
The entire order can be accessed here: https://indiankanoon.org/doc/180037999/.
- 40.
Read a detailed account of allegations on ‘Former Supreme Court Employee Alleges Sexual Harassment by Chief Justice Gogoi’ accessed on https://thewire.in/women/former-supreme-court-employee-alleges-sexual-harassment-by-chief-justice-gogoi on 02.01.2021.
- 41.
See full first-day reporting of the Supreme Court in the said case at https://www.scobserver.in/court-case/sexual-harassment-allegations-against-cji/sexual-harassment-day-1-arguments accessed on 02.01.2021.
- 42.
See ‘Sexual Harassment Allegation: CJI Ranjan Gogoi’s presence on Bench Raises Eyebrows’ accessed on https://www.thehindu.com/news/national/sexual-harassment-allegation-cji-ranjan-gogois-presence-on-bench-raises-eyebrows/article26900497.ece.
- 43.
See Gogoi as MP: ‘A Matter of Great Public Importance Touching Upon Judiciary’s Independence’ accessed https://thewire.in/law/ranjan-gogoi-cji-rajya-sabha-supreme-court on 02.01.2021.
- 44.
See ‘Indira Jaising Questions Court’s Handling of Allegations Against Chief Justice’ accessed on https://www.bloombergquint.com/law-and-policy/indira-jaising-questions-courts-handling-of-allegations-against-chief-justice;
And ‘Indira Jaising questions Attorney General’s appearance in hearing on sexual harassment charges against CJI’ accessed on https://www.firstpost.com/india/indira-jaising-questions-attorney-generals-appearance-in-hearing-on-sexual-harassment-charges-against-cji-6486711.html.
- 45.
See ‘Dwarka court judge, accused of molestation, consumes excessive sleeping pills’ accessed on https://www.indiatoday.in/india/story/dwarka-court-judge-accused-of-molestation-consumes-excessive-sleeping-pills-330782-2016-07-22 on 21.01.21, also see ‘Suspended additional district judge, family attempt suicide’ accessed on https://www.dnaindia.com/india/report-suspended-additional-district-judge-family-attempt-suicide-2237185 on 21.01.21.
- 46.
Dr. P.K. Malik v. High Court of Delhi on 29 January 2021.
- 47.
For Durkheim, the law exists as an institution prohibiting selected behaviours and actions of people to maintain social solidarity. In this reference law becomes coercive. Law is also real in the sense that deviance from the prescribed sanctions and norms disturbs the collective conscience and invites punishment in all types of legal systems. Law also stands as external to an extent that it is formulated, practiced, and implemented by specialised individuals only—the member-lawyers of the Bar. Lastly, law, to Durkheim, is observable since legal maxims, rules, regulations, and judgements that form the law are almost always written and are open to public scrutiny (Durkheim, 1895).
- 48.
Mayur Suresh presents a brilliant analysis of the understanding and application of the law by terrorist-accused to bargain with the state through the laws it created, and to put forward their case in front of the court in a language it understands (Suresh, 2016).
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Guinea (2022). Practicability of the Practice of Anti-Sexual Harassment Law: A Feminist Analysis of Jurisprudential Crisis of the Indian Legal System. In: Niumai, A., Chauhan, A. (eds) Gender, Law and Social Transformation in India. Springer, Singapore. https://doi.org/10.1007/978-981-19-8020-6_8
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