It is time Indian judges start cleaning up their own house as they pronounce landmark verdicts every day on gender equality.
The dramatic Senate hearing Thursday against Brett Kavanaugh, Donald Trump’s nominee to the US Supreme Court, where he was confronted with claims of sexual assault against him must serve as a moment of reflection for the Indian judiciary.
Kavanaugh may probably end up as a US Supreme Court judge but at least the world has seen and heard a Christine Blasey Ford, a professor who testified that Kavanaugh once pinned her down and tried to take off her clothes.
There are Kavanaughs in India too and our judiciary has not just ignored them but has actively shielded them. Take the two instances where former Supreme Court judges – A.K. Ganguly and the One Who Cannot Be Named, due to a Delhi High Court gag order– were accused of sexual misconduct by powerless interns.
Tale of two judges
In 2014, when at least 25 lawyers including nearly a dozen senior advocates appeared for former judge who cannot be named in the Delhi High Court and got an ex-parte (orders passed without hearing the other side) gag order against a couple of media houses, Ms X, the complainant, was naturally intimidated.
Senior advocate Mukul Rohatgi, who led the arguments for the judge who cannot be named, even questioned why the intern had delayed filing her complaint by two and a half years. Kavanaugh Thursday used the same argument against Ford that is always asked of survivors – why did you not complain soon enough?
A few months later, she moved the top court seeking a transfer of her case against the one who cannot be named to Bengaluru since she was convinced she would not get a “fair trial” in Delhi.
That petition is still pending. The Delhi HC, where she had originally filed the case, has put it on hold it because the apex court has not heard the transfer petition in four years. Meanwhile, the judge who cannot be named served full five-year tenure as chairperson of the National Green Tribunal (NGT). Even in the farewell organised for him by the advocates, the pending case was never discussed.
The delay may not be deliberate but is certainly a damning indictment of the judiciary for failing the survivor.
The three-judge committee could not do anything else since he had already retired. The judge continues to receive a full pension and other perks from the government.
In December last year, a three-member panel set up by the Rajya Sabha to investigate sexual harassment charges against Justice S.K. Gangele, (now retired) judge of the Madhya Pradesh High Court, gave him a clean chit.
Interestingly, the panel said that Gangele tried to unduly interfere with his female subordinate’s transfer by making several calls but that cannot be “on account of not submitting to his immoral demands”.
It took nearly three years to investigate the allegations and one of the likely reasons for the delay was that at least two SC judges recused themselves from the panel without any explanations. While the ‘clean chit’ came six months before Gangele retired, the complainant judge who quit her job after she came forward with the allegations is yet to be reinstated.
Another case of alleged sexual harassment involving Krishna Bhat, a Karnataka district judge became a political slugfest between top judges.
The sorry state of affairs speaks for itself. Nearly 21 years after the Supreme Court delivered the landmark judgment in the Vishakha case, mandating committees in every workplace to investigate sexual harassment, it is still gathering compliance reports of the order from lower courts.
The SC itself set up its committee in 2013 when allegations were made that a Delhi high court employee was secretly filming female advocates in the washrooms. Even then, the activist court that berates bureaucracy first set up a committee of senior advocates Fali Nariman and P.P. Rao to make “recommendations”.
Lessons from Brett Kavanaugh’s hearing
The line of questioning for a rape survivor when she tells her story is far worse compared to what Kavanaugh was put through.
Yet, Kavanaugh was defensive, boorish, aggressive, angry and even called himself a victim while answering questions about the allegations. If Ford had shown the same temperament, it would not have taken the world five minutes to reduce her to a pile of lies.
In fact, everything that Kavanaugh has done or said so far is exactly what men are often known to cite to say that women are making false allegations. He went on national television with his wife to defend himself before the Senate hearing.
There is no place for “himpathy”, the term being used to describe sympathy for men accused of sexual assault.
Although every claim of sexual violence must be taken with all seriousness it deserves, allegations against judges, lawmakers need twice the scrutiny. In India, it is time the judges start cleaning up their own house as they pronounce landmark verdicts every day on gender equality.