Thread by @barandbench

Discussion on “Collaborative Activism in the Sphere of Gender Equality: Some reflections on Vishaka Mechanism.”

The speakers are:

- CJ of J&K HC, Gita Mittal
- Senior Counsel Meenakshi Arora
- Advocate Vrinda Grover
- Activist, Nidhi Goyal

Adv Dr Devika Singh will moderate.

The discussion is being organised as part of the Chief Justice YV Chandrachud Birth Centenary Webinar Series by the ILS Law College, Centre for Public Law.

The discussion is being live-streamed on YouTube here:

Today's webinar is the first in the Chief Justice YV Chandrachud Birth Centenary Webinar Series.

About ten webinars through the year have been planned for the series, informs Sanjay Jain from the ILS Law College, Centre of Public Law.

Adv Dr Devika Singh speaks on the Vishaka Judgment which laid down guidelines against sexual harassment in the workplace.

I don't think even at that time the Bench envisaged the impact of this judgment, says Dr Singh.

Further, on the Vishakha verdict, Adv Dr Singh notes that it has been cited 307 times by HCs and the SC, 154 times by the SC alone.

The Keshavanadha Bharathi case, which has a 20-year headstart, has only been cited 20 times more than the Vishakha judgment: Singh.

Adv Dr Singh invites Chief Justice of J&K High Court, Gita Mittal to speak on the topic of discussion.

CJ Mittal expresses her gratitude for being invited to the Panel discussion today.

On the Vishaka judgment, Chief Justice Mittal notes that the Vishaka verdict is treated with veneration all over the world.

The Vishaka judgment is one of the reasons the Indian Supreme Court is seen as "path-breaking".

There are no sufficient words for the impact Vishakha has done for gender justice and beyond, she adds.

Chief Justice Mittal goes on to note that it was unfortunate that it took 16 years after the 1997 Vishaka Judgment for a law to be enacted on the issue of Sexual Harassment in the workplace.

Chief Justice Mittal goes through various judgments on the topic of sexual harassment, which have highlighted that the legislation remains grossly deficient and there remain several gaps.

Chief Justice Mittal notes that sexual harassment is an issue that is subjective.

Uniform procedures do not necessarily result in uniform justice. In some cases, the same procedure may result in gross injustice, she adds.

You cannot put the victim in the same room as the perpetrator and expect the victim to remain unaffected, Chief Justice Mittal further notes

You have to ensure that the victim has a "level-playing field", she says.

The Act also does not include provisions for accountability, CJ Mittal observes

What would happen if the ICC is not formed?

You have to provide for putting recommendations of ICC in public domain so that there is transparency. The confidentiality of the parties may be preserved

An incident of sexual harassment violates not only the victim's rights to equality, to the workplace, to life and dignity: Chief Justice Mittal adds.

There is no monitoring mechanism for the constitution of the ICC in sexual harassment cases: Chief Justice Mittal observes.

She adds that the neutrality of the Committee should be obvious and conveyed to the victim and the public.

The penalty should be graded. It must be more grave for repeat sexual harassment offenders: Chief Justice Gita Mittal.

Twitter appears to be the primary police station for sexual harassment complaints, Chief Justice Gita Mittal.

She speaks of how women are taking to Social Media with these complaints, which "shows how we are failing women employees."

Chief Justice Gita Mittal speaks on the offence of "sextortion" and the various instances of sextortion that she had come across from across the world while researching on the topic.

"Sextortion" has been a distinct criminal offence in Jammu and Kashmir since 2018 following a criminal law amendment after a J&K HC verdict.

This amendment has been saved (even after the abrogation of Article 370), Chief Justice Gita Mittal observes.

Senior Counsel Meenakshi Arora speaks on why it is important that women assert for their inherent rights.

She speaks of a 1799 French law barring women from wearing pants in Paris. Women who wore pants were viewed as rebels. This law stayed on in the statute books until 2013...

To put things in perspective, Arora points out that women in France were given the right to vote sometime in the 1940s.

However, a law to not wear full-length pants stayed on until 2013 ...

This means women have to come forward and say that we have rights that are inherent, Senior Counsel Arora says.

"We have to sometimes wrest them (inherent rights) back, otherwise we are not going to get them."

Senior Counsel Arora recounts the manner in which law evolved with cases such as the Mathura rape case and the Nirbhaya Gang rape case.

There are movement-driven gender rights given over a period of time, she notes.

Meenakshi Arora recalls her experience working on the Vishaka case and how it progressed

Whereas the main petition before the Supreme Court had initially focused on a CBI inquiry into the gang rape that triggered the case, Arora recalls that they decided to add another prayer..

When we drafted the petition, the main petition was CBI inquiry.

But a prayer was also added to focus on what would happen to a woman who is sexually harassed in the course of her work, Arora says.

The morning when the Vishaka case was due to come up, Arora recalls that the newspapers reported that the Rajasthan Got ordered a CBI inquiry.

So the main petition became infructuous

However, the judge observed that the Court should look into the aspect of what happens to a woman who faces such a serious consequence (sexual violence) during the discharge of her work, Arora recalls.

NHRC, the NCW did not come forward to frame guidelines

A very frustrated CJI Venkatachaliah asked the NGO Vishaka's counsel, which included Arora, if they could frame the guidelines.

Arora recalls that they seized this opportunity.

The team who worked on the Vishaka guidelines comprised of Naina Kapoor, Neeti Dikshit, Meenakshi Arora as well as Senior Counsel FS Nariman.

When the Solicitor General was consulted, he initially opined that they (the proposed guidelines against Sexual Harassment in the workplace) were "dangerous" and "capable of gross misuse."

"That was the day I lost my cool", Arora recalls.

Every day Section 420 IPC false complaints are filed.

Why is it (possible misuse) only a problem when it comes to this issue? Arora recalls asking Solicitor General

Finally, the SG was convinced and the guidelines were presented before Court leading to the Vishaka Guidelines

Before Arora concludes, she also urges that the law against sexual harassment should not be misused.

Referring to the "dubious" place given by Courts and elsewhere to S. 498A, IPC as a "weapon", Arora appeals that the Vishaka guidelines should not "go the 498A way."

"This is a right, an invaluable right, use it judiciously. Do not let it go the 498A way": Meenakshi Arora.

She concludes by noting that the Vishaka guidelines came about because all those involved genuinely believed in the cause.

Advocate Vrinda Grover speaks about how the 2013 Sexual Harassment Act, observing that the law has several lacunae.

Grover refers to the recent news of the Head of NLU Assam being booked on allegations of sexual harassment

This is the person in charge of setting up the ICC (generally, under law), she points out

Where is this mindset coming from that the person on top is more fair? she asks

We believe in pyramidical structures and that the person sitting on top knows best, Grover says.

This has become one of the biggest hurdles created by the 2013 Sexual Harassment Act, she adds.

There is a monetary penalty for failing to set up an ICC, Grover informs.

However, she expresses doubts over whether this is deterrent given that the Rs 50k penalty is not very high for big companies.

The State has a role to play, Grover says.

Section 23 gives the power to the Government to monitor the implementation of the Act -

"This power has never been invoked by any State".

The State chooses to remain absent from the story, she notes.

If a woman has filed a false complaint, she should be prosecuted. But there must be a separate mechanism, Grover says

Right now, a woman seeking to file a genuine complaint is being warned against it and asked to not speak up, she notes.

Does our society really penalise people who are accused of sexual harassment? Gover asks, adding on that statistical information does not indicate that there are many such instances.

Sometimes we have to ask 'Where is the reputational damage? Who got dislodged?' she remarks.

Grover clarifies that this is not to say she does not insist on adhering to a procedural process.

But I do not fall for the rues of reputational damage, she adds.

In sexual harassment cases, Grover also speaks of how defamation suits have a chilling effect.

After referring to a defamation suit filed against herself as well by late by RK Pachauri for speaking on behalf of two women who stated that they were sexually harassed, Grover observes,

"These are slap suits filed to silence the women."

Transgender persons experience greater violence than women do, because of the way they are perceived, Grover notes.

She goes on to emphasise that the solution is not to transform laws into gender-neutral law but to comprehend the specificity of discrimination and violence.

The way ahead for laws against sexual discrimination and violence:

Grover says that the way ahead is to comprehend the specificity of discrimination and violence experienced, creating specific avenues of law ...

Laws have to be gender-specific and not gender-neutral: Vrinda Grover says.

Gender neutrality is being gender-blind. it is not giving protection to anyone, she adds.

Disability Rights Activist and Founder of Rising Flame, Nidhi Goyal speaks.

Sexual harassment is an offence of power and patriarchy, Goyal echoes Chief Justice Gita Mittal's observations.

For women with disabilities, very few reach the higher education spaces and even fewer seek formal workplaces.

Finding employment for persons with disabilities is often difficult. They are viewed as burdens and very little investment is made into their growth.

The power hierarchy becomes far more complex, Goyal says.

"You are made to feel guilty just for your disability."

Nidhi Goyal speaks of how for persons with a disability, sexual harassment is sometimes so internalised to the point that it is an everyday lived experience.

She recalls of having asked some teenagers with disabilities whether they faced harassment.

When they responded that they haven't, Goyal recalls that she described what acts may constitute harassment.

At this point, the teenagers responded that they had faced such harassment.

Thus, Goyal points out that there is a tendency for persons with disabilities to reduce the sexual harassment they face.

Women with disabilities are often forced to internalise this kind of harassment which deters them from reporting.

There are many ways to violate a woman with a disability which are specific and nuanced to her.

For instance, Goyal cites the example of lewd comments being made against women who are deaf.

CJ Gita Mittal also speaks about how women and their needs are often invisible in workspaces.

To cite a small eg, she recalls that while the Delhi HC had at one point the maximum number of women judges, there was no cloakroom attached to the "beautiful judge's lounge."

"I have never minced words", Chief Justice Mittal adds. "I lamented for 12 years" before a cloakroom was finally attached to the judge's lounge in Delhi HC.

Similar issues were also noticed in Jammu and Kashmir courts, Chief Justice Mittal adds.

In certain lower courts, Mittal notes that there is no toilet or waiting area for women. An arrested woman has to sit in the police vehicle.

CJ Mittal queried: does she not go to the toilet at all? What about the days when she is menstruating?

I am not speaking about infrastructural deficiencies, those are there, she adds.

Rather, CJ Mittal emphasises that her point is that women's needs are often invisible.

I know of women who have gone back to work after pregnancy and there is no room to cater to their special needs. No rooms for the privacy of lactating women: CJ Mittal

CJ Mittal also recalls an incident involving a young woman lawyer at the final stage of pregnancy, who was barred from driving.

When she sought for an adjournment for 2 days, she was told by the judge "

"Don't you know my friend? There is no maternity leave in the profession."

We have much to learn. We need to undertake a huge exercise in sensitisation and to fight for our rights: CJ Gita Mittal says.

The Webinar comes to an end after a Q & A session and the vote of thanks.