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Looking ahead Bite of the underdog |
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It is a mandate for change
Watching the Nobel Prize ceremony
Sexual harassment and women lawyers
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Looking ahead With the key assembly elections over, the focus will now shift to the general election in 2014. Despite the spectacular rise of the Aam Aadmi Party, the main contestants will still be the BJP and the Congress. Both may have to change their traditional ways of winning elections since AAP’s success comes from promising and practising clean and transparent politics. For their survival and success, the two parties need to reconsider the use of muscle and money power in elections and work towards the decriminalisation of politics. The BJP win in three states will deflect the challenge, if any, to Narendra Modi's leadership. However, it is a fact that despite addressing half a dozen rallies in Delhi, he could not get the BJP a clear victory. If AAP builds on its present strengths and replicates its Delhi success in a few more cities, it could make the BJP more dependent on coalition partners and even dent Modi's chances of becoming the next Prime Minister. The formidable gains in the two large states of Rajasthan and Madhya Pradesh have saved the day for the BJP in its Hindi-speaking stranglehold. Though state and national elections are different, some of the current issues and factors responsible for the Congress defeat -- corruption, price rise, violence against women, anti-incumbency sentiment and leadership vacuum — are likely to persist. The crushing defeat may force a rethink in the party, but it is unlikely to draw the right lessons. Congressmen are not used to speaking their mind and say what the leadership wants to hear. Sonia Gandhi's politics of handouts has not yielded the desired results. Rahul Gandhi has not changed and may not in five months. He is engaged in a long-term goal of transforming the Congress, whereas the party is faced with a short-term challenge of winning elections, as a senior party leader has pointed out. By dubbing Rahul a “Shehzada” and highlighting his privileged upbringing, Modi hits out at the core Congress constituency among the poor. The party still does not know how to deal with the Modi phenomenon.
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Bite of the underdog THE mainstream parties did not foresee the AAP revolution. They can hardly be blamed. The ‘mainstream’ analysts and media also did not see it coming, no matter what explanation they may give in retrospect. Arvind Kejriwal defied Anna. He defied common sense which said a ‘nobody’ could not take on the money and muscle power of the professionals. That needed conviction, which he displayed as much by taking on Sheila Dikshit personally. He may not have secured the No. 1 slot in Delhi for his party, but even the 32 per cent votes that they managed are an astounding success. For now, it is time for Kejriwal to bask in the glory. The realities of living the real political life can come in due course. There are, however, lessons for other parties to learn from what swept AAP to the dizzying heights. What worked for the man in ill-fitting clothes the most would be his ‘connect’ with the man in the street, all owing to his visible honesty of intent and forthright speech, choosing just the words the voter had in his mind for the ‘establishment’. He was in their party, literally, not just through the name
AAP. He also raised an issue — corruption — that neither the Congress nor BJP could hijack, as the voter was tired of the 'politician' per se. Here was a politician who was not a politician. There was talk of an Arab Spring when the crowds first gathered at Ram Lila Ground and Jantar Mantar in New Delhi. But it was labelled anarchist. That has been given a legitimate form by
Kejriwal. AAP's Delhi revolution may well impact the political dynamics nationally by giving the courage to voters in other states to think the unthinkable. Conventional parties may see AAP as an urban phenomenon, but the media today has connected the rural India to the national discourse just as much. Are there more surprises in store? It would take a bold man to dare read the voter's mind.
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Thought for the Day
Even a stopped clock is right twice a day.
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Pakistan guilty of breach of cease-fire New Delhi: That Pakistan reinforced her troops and armed “Azad Kashmir” residents with 10,000 rifles to take forcible possession of the village of Chaknot on the Indian side of the cease-fire line on a false claim, was officially confirmed in the Lok Sabha today. In a statement Mrs. Lakshmi Menon, Minister in the Ministry of External Affairs, revealed that the Chief U.N. Military Observer in his report received recently, had held Pakistan guilty of having reinforced her troops south east of Kel in contravention of the Cease-Fire Agreement. Radical change in food policy urged New Delhi (PTI): GOVERNMENT’S handling of the food situation, both in respect of production and distribution, was assailed in the Rajya Sabha which held an inconclusive debate today on an official motion. Mr. Bhupesh Gupta, leader of the Communist group, said that at the present rate of production it would take another generation for the country to attain self-sufficiency in food. He called for a “radical reorientation” in Government's food policy and effective State trading in food-grains. Bill for crop insurance New Delhi (PTI): The government of India has drafted a Bill for crop insurance and sent it to the Punjab Government for its views, Dr. Ram Subhag Singh, Minister of Agriculture told Dr. A. Subba Rao in the Rajya Sabha today. The Bill would also be circulated to other States but it was Government's intention that the scheme of crop insurance should first be introduced in Six NES Blocks in six districts of Punjab simultaneously on a compulsory basis. Dr. Ram Subhag Singh said that after receiving the views of the Punjab Government, it was proposed to enact the legislation.
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It is a mandate for change THE electorate has spoken and has voted a mandate for change, especially with regard to corruption, people's problems and mounting criminalisation. The BJP has retained its mandate in Madhya Pradesh and Chhattisgarh and wrested Rajasthan by a massive margin. It has, however, failed to win Delhi where the new Aam Admi Party has registered something of a triumph, relegating the Congress to a poor third place. Delhi has a hung Assembly. Rather than shirk forming a minority or coalition government the BJP or the Aam Admi Party has a duty to try and form and run a government with issue-based outside support from whomsoever. Forcing President’s rule and a fresh poll without an honest effort at government formation would be to rebuff the democratic process.
Narendra Modi may preen, but it is not certain how much credit can go to him. But the outcome will certainly boost his prime ministerial aspirations. The Congress has had to eat humble pie and can only take small comfort should it retain Mizoram. The BJP has lost tribal votes in Chhattisgarh to the Congress while AAP has failed to register much success in rural Delhi, thus suggesting that its focus and support is perhaps predominantly urban. From this it follows that it may not be as successful in the forthcoming national polls where rural predominance matters even if it is able to mobilise the kind of organisation it mustered in Delhi, which is unlikely. Rahul Gandhi's singular failure as the Congress's shining hope has again been exposed and the party will be wooing national disaster if it continues to project him as its dynastic champion, let alone a potential Prime Minister. The pathetic sycophancy of the Congress is a millstone round its neck. Restoring internal democracy is the prime "reorganisation" it sorely needs. The Delhi results reflected anti-incumbency and the overhang of a non-functional Union Government that has been adrift for quite some time. The current Assembly results do not necessarily reflect what might happen next year. Four or five months is a long time in politics. Signs of more vigorous governance by UPA-I, which is not impossible, some revival of the economy and falling prices could influence electoral opinion. However, the Telangana muddle, and especially the misplaced decision to have Hyderabad as a joint capital for ten years, shows that the Congress must learn once more not to trade principle for expediency. Article 370 Narendra Modi remains vulnerable over Gujarat 2002 and its aftermath. His defence and denials are gradually unravelling. His failure with Amit Shah to utter a word on the so-called snooping-stalking scandal is eroding his credibility. Likewise, his repeated faux-pas on the history and geography he cites is embarrassing. His latest call for a debate on Article 370 pertaining to J&K betrays a lack of knowledge on the subject. This is perhaps no surprise as the BJP has spouted a lot of nonsense on this Article over the years. J&K is a fully integral part of India under Article 1(2) of the Constitution read with the First Schedule that defines the territories of India. The Instrument of Accession that the Maharaja signed on October 26, 1947, was no different from that signed by all princely states. Article 370 provides a mechanism governing Centre-State relations between Delhi and Srinagar in the same manner as Articles 371 and 371-A to I make special provisions pertaining to several other states. Likewise, the Fifth and Sixth Schedules make special provisions for Tribal India. If J&K has "state subjects", so does Sikkim and in both states, as in some others, the purchase of property by outsiders is banned or regulated. Tribal lands too cannot be casually alienated. Further, Article 370 is “temporary” or “transitional” only to the extent that it can be varied or extinguished only with the consent of the constituent assembly/legislature of the state. The BJP has shown similar ignorance about Article 44 pertaining to a uniform civil code which can be legislated by any State. Sadly, other parties and intellectuals are equally illiterate in this regard.
Sharif’s address While still on Kashmir, it is a pity that Indian civil and ex-military commentators go ballistic whenever Pakistan says something about J&K. The latest instance relates to Nawaz Sharif's address to the “Azad Kashmir” legislature in Muzaffarabad where he said he dreamt of Kashmir one day becoming part of Pakistan and that his government would, while seeking a peaceful resolution through talks, continue to lend support to the Kashmiri people's right to self-determination under the UN resolutions. He added that Kashmir remained a flashpoint between Pakistan and India and could, if unattended, lead to a fourth war between the two neighbours - and a nuclear war at that. Though the statement was unhelpful, it would have been best to laugh it off as mandatory rhetoric Pakistani leaders must spout from time to time. Manmohan Singh neatly punctured the balloon, observing that Pakistan is unlikely to win any war against India in his lifetime. Instead, by reacting as belligerently as some did, India vested a stray remark with more importance than it deserved and almost justified Pakistan's fears of the Indian stance and revived the global anxieties that Pakistan trades on.
Media's overreaction The same lack of proportion was seen at another level when, asked about the current discussion on alleged sexual misconduct and rape laws in the country, Farooq Abdullah said he now feared bantering with a woman or hiring a female secretary lest some chance remark or gesture land him in jail. The media and women's groups pounced on him as a male chauvinist and extracted an apology for any inadvertent offence! The media's overreaction to such events is manifest. The cry for retired Justice A.K. Ganguly's resignation as Chairman of West Bengal's Human Rights Commission, following a female intern's allegation of molestation by him a year ago, has grown shriller by the day. The Justice has denied the allegation and said he has yet to see the full text of the order passed by a judicial committee appointed by the Chief Justice to look into the girl's complaint. Some days ago the Chief Justice was reported in the media as saying that the statement of the female lawyer both written and oral “prima facie discloses an act of unwelcome (verbal/non-verbal sexual) behaviour” with the young lawyer who was interning with Justice Ganguly on December 24, 2012. This has been categorically interpreted by the media and political critics as a finding of guilt by the inquiry panel against the Judge and he has been harshly criticised on that ground. But was that the finding of the panel or merely certification of the young lawyer's allegation rather than the considered judgment of the three-member team which has not met or heard Justice Ganguly. There is a world of difference between the two positions and it would seem that the Justice is being hounded on a misinterpretation of the panel’s alleged finding. Is the lynch mob ahead of the facts as in the Tehelka case? www.bgverghese.com
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Watching the Nobel Prize ceremony Twelve years ago I visited Stockholm where my daughter resided. My son-in-law was then serving as a Director in Swedish International Development Authority. He had shifted from Chandigarh and completed his doctorate from a Stockholm-based university. This trip was mainly for watching the Nobel Prize distribution ceremony on December 10. I arrived at Stockholm on 2nd December when glimpses of the festive season could be seen on decorated streets. Then we visited the Hare Rama Hare Krishna Ashram on the outskirts of Stockholm. The immaculate cleanliness and pious atmosphere of the premises was impressive. The first unexpected happening witnessed by us as we crossed the entrance gate was the “Namaskar” greetings by four young Swedish ladies attired in crisp sarees with an Indian hair-do. They surprised us by all of them displaying “Dandvat Pranam” before each of the visitors. This was ritualistic but highly praiseworthy. Soon we were led to a small congregation where a discussion was going on "shlokas' of the second chapter of "Bhagwat Gita" in the Swedish language. This was quite interesting. One Professor, a Nobel laureate in Chemistry, invited several visitors, including me and my son-in-law, for dinner. The Secretary General of the Swedish Academy was also present. He too was the holder of a Nobel Prize. I was touched when both the Nobel awardees started to wash our used dinner dishes after participants had finished eating. There were no dishwashers in that household as was the practice in Swedish homes. Dinner over, we were served coffee. I them asked a question: “How are Nobel Prize entries short-listed for the final selection committee?” The Chemistry Nobel recipient professor got up and said that he had anticipated this query and had brought a 250-page mini copy of an old chemistry entry in the Portuguese language. He requested all guests to proceed to the basement and watch the procedure of translating the submission in English and then subdividing the contents for a detailed analysis to the committee members. The resplendent award ceremony took place on 10th December in the City Hall before thousands of visitors and the prize was awarded by his Majesty the King, who with the traditional mace in his hand, handed over the award with the citation. The award is presented every year on December 10.
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Sexual harassment and women lawyers It's easy to imagine a time early on in one's legal career when women faced sexual harassment in some form or the other. Thirty years ago we weren't equipped to respond to a senior lawyer making some implied sexual advance as if it were a norm. Or to a client, say an ageing chairperson of a reputed public undertaking who, with shameless ease and mild amusement, could lean forward and suggest we "sort it out at my place". It never seemed to cross the mind of the now proverbial man "old enough to be my father" that this and so much more, was not only professionally inappropriate but sexually offensive. For him or others like him, it was well... just the way things are. And why should we have been equipped? Why couldn't we take for granted that we, like our male counterparts, could go to court, undertake a legal brief, or enter a contractual negotiation free from the experience of being groped, sexually belittled, ogled, touched, or otherwise sexually demeaned or harmed without fearing the stigma or being perceived as prudish? Because then, unlike now, it was about moral wrongs and not equality rights.
Unequal experiences Many women have encountered sexual harassment at the workplace, but when you are a lawyer, few are willing to admit it. In a study carried out by Sakshi (NGO) on judicial perceptions of women who come to the court in situations of violation, 80 women lawyers in 5 metros were interviewed. 64 per cent of women lawyers surveyed said they often felt patronised, ignored, demeaned, harassed or treated like an outsider both in subtle and overt ways in the course of their professional life. When specifically asked if they had ever experienced physical or verbal sexual harassment by judges, lawyers, court personnel or others, 54 per cent of female lawyers reported verbal and physical sexual harassment from both judges and other lawyers. Off the record, many more women advocates interviewed admitted to have experienced some form of sexual harassment. For the sake of their careers they didn't complain. That was 1996. Then came Vishakha. A landmark shift reminding us that we didn't have to be sexually violated to make a living. It introduced us to the contemporary idea that constitutional equality at work raised the human status of those unequal experiences. And unlike the legalese (legal lexicon) that often mangled our experience of sexual violations through incomprehensible law reform, Vishakha made the beneficiary matter. It was user friendly. It prioritised prevention, called on workplaces to raise awareness about sexual harassment, created an innovative redress model and ensured that the responsibility for compliance would lie with the employer. Or so we thought.
Not for legal eagles 16 years post Vishakha, the very court that gave us an innovation, held back on its implementation. With that inexcusable omission, it knowingly allowed a vacuum to prevail which would foster workplace sexual harassment in the legal profession. In this context, a revelation this November by a legal intern of sexual harassment by a retired judge of the Supreme Court was simply a classic case waiting to happen. And the skeletons continued to tumble out with a second intern posting she had been "at the receiving end of unsolicited sexual advance [sic] more than once" by the same judge. Three other cases and four others by instances of young lawyers being sexually harassed by other judges surfaced. Alongside those revelations came Tehelka and Vishakha revived. Overnight sexual harassment in the profession was no longer about whispers in the corridors of a court, a gripe or some prudish resistance by a woman, but a legitimate grievance. One that was visible, audible and relevant. Or at least its exposure was. By abandoning a Vishakha compliant workplace at the Supreme Court itself, it was only matter of time for an increasing population of young women law professionals to no longer bear the cost of silence, and opt to speak up. Blindfolded by the inevitable consequences of its own complacency, the opportunity seemed ripe for the Court to comply with Vishakha. Surprisingly it didn't. Instead, the CJI(Chief Justice of India) invoked an entirely independent committee of 3 Supreme Court Judges, one woman and two men, to look into the matter. Why? Six days later, a petition signed by women practising at the Supreme Court, led by the Additional Solicitor General called upon the CJI to constitute the Committee in accordance with the Vishakha judgement - 50 per cent women and an external member familiar with the legal implications of sexual harassment. Again, it didn't.
Courts above law? We were left instead to the assurances of the CJI "that justice will be done in all respects" and that he had promptly constituted a Committee to look into "an incident of alleged aberration." Aberration? How did the very Court which gave historic recognition and expression to women's experience of inappropriate sexual behaviour as workplace sexual harassment which violated our Constitutional equality rights, reduce such recognition to an "aberration"? An approach echoed in the Tehelka journalists' complaint of alleged "sexual violation" by Tarun Tejpal, which was projected by its feminist Managing Editor, as an "untoward incident". Pattern anyone? On the 7th of December, the CJI published his conclusions on the report of the Panel that probed the intern incident. For the first time, the real purpose of this entire exercise became obvious. According to the statement, the CJI took up the matter because of the "fact that such allegation against a Supreme Court Judge will have a direct bearing on the Institution's reputation and credibility". In other words, it was never about the impact of sexual harassment on the intern, but the potential impact (read "fall-out") for the Institution. The statement goes on to share that the role of the Panel was to "ascertain the truth of the allegations." Seven sittings and three affidavits later, lo and behold, they figured out what we all knew from just reading the blog. She was actually telling the truth. No wonder the intern described her experience before the Panel as "being looked at with suspicious eyes". The CJI goes on to accept that the intern’s statements and her witnesses, "prima facie discloses an act of unwelcome behaviour (unwelcome verbal/non-verbal conduct of sexual nature) by Justice (Retd.) A.K. Ganguly with her in the room in hotel Le Meridien on 24.12.2012 approximately between 8.00 P.M. and 10.30 P.M."
Self-preservation of the court Then, in an inexplicable twist, the statement quickly concludes that as the intern was not on the rolls of the Supreme Court and the Judge had retired `no further action is required by the Court`. Did one of the Panel or the CJI bother to read the blog? Those facts were already in the public domain. If the Panel had no jurisdiction over either the intern or Justice Ganguly in the first instance, then why even bother with a finding? Yet having found a prima facie case of sexual harassment by Justice Ganguly towards the intern, the CJI should have logically followed through with the Vishakha equation. Was there a legal injury to the intern's equality rights? Given the unequal power dynamic between the intern and the Judge, the answer was an unequivocal yes. That finding alone would have nudged "workplace sexual harassment" that much closer to transforming social inequality of women lawyers into their status of equality. Which makes me ask- who then actually benefited from this outcome? Net, net, the Supreme Court. Not only was it an occasion for them to close the door on complaints about retired judges, it brought relief to a Court clearly worried about a stray media headline suggesting one of its own as the potential offender. The entire episode was never about justice for the intern. Rather, it was a blatant exercise in self-preservation. After 16 years of non-compliance with Vishakha and increasing public pressure to act on "workplace sexual harassment," this was an occasion that cried out for the Court- at the very least — to communicate a tough zero tolerance message on sexual harassment of women in the legal profession, be the offender a clerk, a client, a lawyer, a judge, retired or not. It didn't. Subtlety of the sub- text Despite such a disappointing outcome, it's fair to ask — has anything changed with Vishakha? Yes. Experiences of sexual violations at work have a name — workplace sexual harassment — and the status of those affected by such experiences are no longer just about moral wrongs, but about fundamental rights. The stigma and fear of thirty years ago in the profession is perhaps lessening. Where violations of equality arise as a result of workplace sexual harassment, there are more places to complain about it. On the same date as the CJI washed his hands of the intern matter, a group of junior women lawyers petitioned the High Court of Allahabad alleging sexual harassment by their male colleagues. That petition has been admitted and a Committee being set up. In 1915, having completed all the necessary qualifications in law, Regina Guha applied to be a pleader at the Calcutta Bar, where a four-judge bench had to determine whether "persons" admitted as "pleaders" included women. Degrees in law could be conferred on both men and women in Calcutta University. But the bench was adamant for letting a woman be a pleader. According to a 2013 list of Senior Advocates designated by the Supreme Court of India since 1955, only five out of 309 advocates have been women. Of the 200-plus lawyers appointed as Senior Advocates in Delhi and Mumbai over a period of twenty years (up to 2011), only three were women.
The writer runs a virtual law firm "Preventive Law & Equality Compliance." She was the lead instructing counsel for Vishakha v. St. Of
Rajasthan, 1997, Supreme Court of India.  |
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The next morning our programme took us to the King’s Palace. As intended, we could see His Majesty, the King Gostov XVI, riding a bicycle while proceedings to the Bibliotech Library without any guard covering him. He has three children and all are employed on ordinary jobs. 
In the end the lesson from Vishakha versus the CJI's inaction is a recurring one — at the end of every legal intervention is a beneficiary. How and if they benefit depends on what's at the beginning of every legal intervention — an attitude.