Of Interns And Judges

There is much India could learn from the Clarence Thomas-Anita Hill sexual harassment case in the US.

WrittenBy:Dr. Ashoka Prasad
Date:
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Like most, I am not in a position to arrive at a definitive conclusion whether there is any merit in the law intern’s complaint against a retired judge of the Supreme Court of India. The noteworthy feature is that this is the second case of alleged sexual harassment by a judicial officer with links to the apex court in as many months.

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The media has covered it very extensively and while there is justifiable moral outrage, there is also a simultaneous realisation that in the absence of witnesses,it would be very difficult to draw an informed inference.The system of jurisprudence entitles every individual to a prescribed due process. From what I have read in the newspapers and seen on television,my understanding of the law as it stands leads me to suspect that in neither case would one be able to conclusively establish and ensure a criminal penalty.

This is particularly unfortunate as the differential power equations between the senior judges and law interns is such that it makes the latter particularly vulnerable to exploitation.

What I do know-and what is widely accepted -is that this problem is widespread and by no means only confined to India. As recently as yesterday, a senior Federal Judge, Samuel Kent, in Galveston,Texas was found guilty of “sexual impropriety and abuse of power” with his case manager by a judicial council and “reprimanded”.

In the early Nineties, the United States of America had witnessed the Clarence Thomas/Anita Hill saga. Clarence Thomas was an Afro-American judge who,while serving in the Federal Court of Appeals,had been nominated by George Bush Sr to a vacancy that had arisen in the US Supreme Court. As per the US Constitution, he had to face the Senate Judiciary Committee for his confirmation. Thomas was only 43 at the time. It was widely regarded that he was certainly not the best qualified for the position. He was regarded as a diehard conservative and it was expected that his presence in the 9-judge bench would tilt the Court into reversing its earlier Roe vs Wade ruling that had legalised abortion. Thomas put up a sub-mediocre performance before the Committee but he had the comfortable belief that given his conservative leanings and ethnic origins he would easily scrape through.

And that is what would have happened but for an enterprising young journalist called Nina Totenberg who revealed that the Committee had received a very serious complaint about Thomas’ persistent and ugly attempts to harass his assistant Anita Hill, who was also an Afro-American.The Committee was forced to conduct another hearing where Anita Hill described in detail the lurid actions she alleged Thomas had indulged in. Thomas retorted by describing the hearing as a lynch mob and a circuswhich was meant to persecute him.

What was striking in this Senate hearing was the questions that were placed before Anita Hill.Senator after Senator asked her why she had chosen to remain silent for years before coming up with this allegation. I note that this is exactly the question that the Chief Justice in India pondered over in this case. To many, including myself,this reflected a fundamental disconnect with the realities on ground as far as sexual harassment is concerned. The usual practice among the victims of harassment is to try and conceal their inner turmoil lest it invoke retaliation in a relationship with a lop-sided power equation.

Many of the Senators pleaded that Thomas deserved to be given the“benefit of doubt” as in the absence of witnesses it would be difficult to form a judgment. The underlying reality, however, was that those who could see the possibility of a Conservative judge on the bench did not regard sexual harassment as an important enough issue to disqualify Thomas. Thomas was confirmed by the tiniest majority and continues to serve on the bench.

While the issues in the current case are somewhat different. Thomas,although a Federal judge had yet to be appointed to the Supreme Court at the time of the hearing. Yet, a cursory perusal of the saga would demonstrate that the public at large (including the legislators) were just as ignorant about the issues involved in matters of sexual harassment and therefore inclined to place it way down in their list of priorities.Equally noteworthy is the absence of an effective institutionalised redressal mechanism for the complainants.

Now that the issue has surfaced, I think the most valuable service that the Fourth Estate can do is to educate the people as to what constitutes sexual harassment and the effect it has on those being harassed. I would also welcome a debate on whether judges should be judged by the same standards as the rest. Being a judge’s son, I have always believed that the judiciary has to be judged by a standard that is higher. For that reason alone, I welcome the Supreme Court initiative.

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