“If the death penalty has to be awarded for a 19-year old, poor, illiterate and socially backward boy for committing gangrape, what should the corresponding punishment be for a father figure and the highest authority in the organisation, for finger penetrating a young colleague, as per the regime of stringent punishment?



Tehelka (Photo credit: Wikipedia)









When in a historical verdict in 1997, Justice J.S. Verma resorted to judicial law-mak ing, and laid down guidelines to prevent “sexual harassment at workplace“ (popularly referred to as the “Vishaka guidelines“), everyone thought it was a harmless ruling. No one ever really thought that it would come to bite our public intellectuals and custodians of law and justice, at the highest echelons of power. The private sector chose to pretend that they are not bound by it. Women journalists, while writing probing reports regarding non-compliance by state agencies, never turned the mirror inwards and questioned whether there was a policy in place internally. The news reports were exercises in one-upmanship. At times, an occasional journalist would narrate such incidents but would prefer to change her job than press charges and face the stigma.And worse, while judges of the High Courts and the Supreme Court pontificated on this issue, they did not care to reflect whether they too were bound by this ruling and did not put in place a policy which would bind them. The spotlight was turned only on the public sector and the educational institutions. The concerns of women’s groups about not setting up such committees at all workplaces, including media houses, legal chambers and judicial institutions, fell on deaf ears.

To our probing queries, some senior officials replied disdainfully, “We will see when a law comes into effect.“ The government dragged its feet for 16 long years, and finally enacted a law earlier this year, which is yet to be made enforceable as rules under it are not yet framed. So we are still governed by the famous “Vishaka guidelines“ regarding sexual harassment at the workplace.

A committee would be set up only when a woman dared to file a complaint against her boss, as is being done in the Tehelka case, to put a lid on the violation so that the news does not spill into the public domain and harm the reputation of the corporate or media house.

Even more important is to bring into focus the demand for a wide definition of rape and stringent punishment, after the brutal Delhi gangrape and murder. This as well as the Shakti Mills case involved lower-class, delinquent men, while the victims were from the middle class. It was conven from the middle class. It was conven ient to demand stringent punish ment. When an initial Bill was prepared, various groups were more concerned about what was excluded than under standing what was included and its implications. It never made anyone uneasy that one day the wide defi nition of rape as insertion of not just the penis but also the fingers and objects into body orifices, not just into the vagina, but also anus and urethra and mouth (oral sex) and the stringent punishment (a minimum of 10 years for all such violations by peo ple in power) would come to bite us, bite people close to us, the people we respect.

Now the time for the litmus test has come. The time has come to test these definitions and the stringent punishments. To test our commitment to equality before the law and equal protection of law, a basic and fundamental principle of our Constitution. Even the best of them seem to flounder as was the case with Shoma Chaudhary, managing editor and the second-in-command, known for her commitment to women’s rights, who failed to treat the complaint with the seriousness it deserved.

The sexual harassment of a law intern by a retired SC judge, a defender of hu-man rights, pre judge, a defender of hu-man rights, pre siding over compli cated cases involving cor volving corruption at the highest l e v e l , wh i c h almost brought the UPA government down (as reported by a news magazine). The so-called “drunken banter“ by none other than Tarun Tejpal, known for his string operations and probing journalism. Both these reputed persons might have been under a misconception that they are above the law, that the code of sexual ethics at workplace as stipulated by the Vishaka guidelines applied to them personally.

Worse, from their position of power, they did not think that women would ever have the courage to expose them.

But these incidents must make us realise how routinely it takes place everywhere -within corporate establishments, media houses, judges chambers, chambers of senior advocates, even within NGOs and within the chambers of progressive lawyers and human rights defenders. There are several law graduates who were forced to change their professions after they were scarred by such incidents.

Despite the public debate on the recent amendment to the rape laws brought into force in April 2013, several journalists as well as subject experts and activists have confided to me their own ignorance about the new definition and asked me for clarification as to finger penetration would now amount to rape? The answer has to be an emphatic yes.

In the case of Tejpal, it would amount to an aggravated form as he is a “person in authority“ warranting a minimum of 10 years of imprisonment which may extend to life imprisonment. There is no short cut here as there is his own admission of guilt, which has tightened the noose round his neck.

If the death penalty has to be awarded for a 19-year-old, for a poor, socially backward boy for committing gang rape, what should the corresponding punishment be for a father figure and the highest authority in the organisation, for finger penetrating a young colleague, as per the regime of stringent punishment? And what would be the “mitigating circumstances“ the court can consider in such a case?

A difficult question, the court must answer.

For the Supreme Court too this is a moment of reckoning to bring in transparency and accountability . The Supreme Court has chosen to ignore past sexual misconduct while selecting judges for the Supreme Court. It is also time the court sets up a machinery to deal with the sexual exploitation that takes place under its very nose and set up appropriate machinery for redressal.





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