Laws that hit you from behind article written Abhishek Manu Singhvi
Article by Abhishek Singhvi Judicial adjudication is a complex mix of several factors, including the socio-cultural setting in which it takes place, the exact state of the law, the approach, the subjective predilections of an individual judge and, of course, the facts of an individual case. But divergent, and sometimes opposite, results can be achieved on an identical set of facts. Italy’s highest criminal appeal court recently held that a pat on the bottom of a woman employee by the manager of a public health agency in Northern Italy, did not constitute sexual harassment. The appellate court, overturning the conviction of the manager by a lower court which had sentenced him to 18 months in prison and levied a fine of $ 3800, held the act of bottom patting – it appears that bottom pinching was not involved – as “isolated” and “impulsive”, and “not an act of libido”.
The Indian Supreme Court has given dramatically different responses to similar problems. After former Punjab DGP KPS Gill confronted senior IAS officer Rupan Deol Bajaj at a dinner party on July 18, 1988, she tried to leave by getting up from her chair, at which point he “slapped her on her (departing) posterior”. Allowing Bajaj’s appeal against the High Court’s quashing of the FIR, and directing Gill to face trial, the Supreme Court found that the allegations, if proved, would establish the offence of outraging the modesty of a woman, which it said, included “propriety of behaviour, scrupulous chastity of thought, speech and conduct and freedom from coarseness, indelicacy and indecency”. It added that the “essence of a woman’s modesty is her sex and from her very birth she possesses the modesty which is the attribute of her sex”. Gill was subsequently convicted of the offence and sentenced, but his appeal is pending and the sentence is suspended.
In Vishakha’s case (1997), the Apex Court adopted a set of detailed guidelines culled out from the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW), inclusively defining sexual harassment as such unwelcome sexually determined behaviour which directly or indirectly includes physical contact and advances, demand or request for sexual favours, sexually coloured remarks, showing of pornography and “any other physical verbal or non-verbal conduct of sexual nature”.
But the last word on the subject must remain with suffering Italian women and not the Indian Supreme Court. Commenting on the Italian Appeals Court decision, one Cristina Matranga of the Conservative Farza Italia party said: “If 10 different men each give us one single pat on the bottom, should we go home happy?”
The recent Indo-Canadian Legal Forum, comprising the Chief Justices of India and Canada, senior Supreme Court judges and some lawyers of both the nations, provided vital insights for Indian lawyers relating to the Canadian legal system. Since the deliberations were confidential and no record was kept, views were expressed with great candour and complete informality. The Canadian side was led by Chief Justice Beverly McLachlin, only the third woman Chief Justice in the world and a remarkably able, competent and dynamic judge. She was pipped to the post of being the first woman Chief Justice by the one appointed in Senegal, a few years ago and another, in New Zealand, a few months before her. She is, however, likely to hold the Guinness record for the longest serving woman Chief Justice since she was appointed in January 2000 at the age of 57 and, with Canada’s judges retiring at 75, is likely to head the Canadian judiciary till 2018.
Chief Justice Beverly’s tenure is heartening in the context of the gross under-representation of women at higher levels. The reason must have something to do with the more traditional, conservative and closed club elements of the legal profession, especially in comparison to business, politics and other professions. Written By Abhishek Singhvi. For more article by Abhishek Manu Singhvi visit our website drabhisheksinghvi.com/
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