Naina Kapur

Anna and Me

2011-08-30T23:24:00.000-07:00

Imagine walking in the chappels of a 74 year old whose legacy includes a lifetime of speaking out and acting against corruption. No immediate family, a life of activism and in the last phase of life, a fast which might be unto death as a chosen path. Not all of us would be inclined to make that choice as a natural corollary to the life we have lived. For a person of Anna’s ilk however, a possible fast unto death is not just some spur of the moment dharna but rather, his dharma. It’s what he thinks matters. This is not a man who fasts for a call to arms, or whose language smacks of sloganeering. It’s a man who wants a people’s voice to be included. And in the process he casts what matters within the prose of peace. So what’s he got to do with me?

Last evening I ran into a small cluster women at a homeopath’s clinic. One of them eagerly recognised me and to my surprise recalled us having met in the 80’s, the days of a women’s movement. Given the prevailing “Anna” campaign, she along with her friends, managed a brief exchange of views over our shared experienced with law reform in context of that movement. Over the years we had all had some experience of that process at one time or another– be it child sexual abuse, sexual assault, domestic violence, sexual harassment and more. And we recalled the frustration of that role. Approaching a government office, a law commission, ministries, bureaucrats or local authorities, we went armed with the experience, skill, knowledge, and reality of working with women’s social context. Our goal was to make visible the inequality and injustice of that context and to encourage an appropriate response. Many of us believed in the imperative of law reform even though we hadn’t quite mastered the complex nuances of that tool. Differences in approach and ideology aside, each endeavour would terminate at the threshold of government processes, which quickly abandoned the skill and innovation of a vast movement. Issues were swallowed into the uninitiated and exclusive black hole of a legislative will only to morph into a bill and language that lost sight of a vision, the skill and experience of a movement and the goal of enabling social change. That exclusion has contributed in part to a woefully incomplete agenda on women’s rights today.

Whatever we may think of the Anna chapter, even those critics who brand the campaign as non-inclusive, it is an agenda that has pushed the boundaries for inclusiveness of civil society- it’s made people visible. It’s dared Government to remember that; to value the lived experience of people with systemic corruption and of those who work to transform that experience. True, civil society is shaped by a broad spectrum of experience and yes, inexperience- just like our MP’s and not everyone does their homework. But those who do lend credibility to the skill and experience of their vocation. That’s not something to be wished away, tainted by invoking a breach of parliamentary privilege, subverted by the slippery slope of legalise, or strategized into yet another incomplete agenda. Rather, it warrants respect. Respect which acknowledges that life experience, that which is the cornerstone of every legitimate cause, is what lends substance to a credible law or its reform. Indeed in the march towards inclusive reform, civil society must also come to emulate that value. Trapped within the mirage of personalities, we often become prey to our own territorial instincts leading to its own brand of exclusion and at times self-destruction. Often in the midst of hurtling towards a “victory” we’ve forgotten to contemplate our defeats.

Which leads me to the matter of “peace”. 30 years ago, this cluster of women and myself were aligned with a wonderfully dynamic movement of women which wanted to stand up and be counted. Those were energetic days characterised more by zeal than peace. We burnt effigies, marched, shouted slogans and sometimes deceived ourselves into believing that some of our self-proclaimed anger was a transformational tool. It wasn’t. It hasn’t been. Anger was the cumulative outcome of frustration, denial, exclusion and invisibility. But it didn’t give us the results we sought. Perhaps a little more living, maturity, the wisdom of middle age and observing the perseverance of this 74 year old man, nudges us towards introspection on that score. It’s not enough to look at what we did or didn’t’ do or might have done or that WE did it. It’s about who we became in the process of doing so. That’s what this 74 year old Gandhian has meant to me. A sea of cynics who cast him as a World Bank “prop” or “foolish” can't sway me to miss the pearls that have often eluded us in the past. Inclusiveness and peace– nothing polished, just simply profound.
©Naina Kapur, 2011

Why Didn't They Get It? - The Sexual Harassment Bill (2010)

2010-11-22T23:12:00.001-08:00

Last week I delivered an experiential seminar on Equality to a group of Senior International development policy makers. Present in the room were mostly white, middle aged men, a handful of white women, one woman from a minority group, one male student from a minority group and a young electrician.

At the end of the seminar, the young woman from the minority group and the male student raved about the session. From the corner of my eye I spotted the electrician wrapping up the wires, gesturing me in his direction. I went. He instantly shared his genuine enthusiasm about the session- how he had been listening in and had learnt so much about inequality and how he wished his girlfriend (a counsellor) could have been there. He then paused. “But can I ask you something?” “Ofcourse”, I replied. Pointing to the rest of participants he asked- “Why didn’t they get it”?

Over the past two years, between the GOI and NCW, we have seen several drafts/versions of Sexual Harassment Bill. In that period, I have on many occasions attempted to submit my comments. I have never received a response. And as of November 4^th, it seems we have a Bill.

Sexual harassment as a rights issue found its place on the map of India in 1997- in the Vishaka case- five years after I filed a PIL asking the Court to frame binding guidelines for the benefit of women at all workplaces. (I have written an extensive blog on this earlier for those who would like some history. Just scroll to the blog titled “The Aspirations of Law”.) Bhanwari, a rural based change agent in Rajasthan was the source of it all- her suffering, courage and extraordinary perseverance are what made the “Vishaka” victory so meaningful. Our memories are short- the Bhanwaris amongst are what make remembering worthwhile.

That being said, some key recurring themes have been the focus of my comments. Some of these are summarised below:

1. The Goal of Equality.

Ensuring the reality of those most disadvantaged by inequality (in this case women, by sexual harassment) should inform any response. If you ask people what does sexual harassment look like- most have a stereotyped picture which involves explicit physical contact. But most have never thought about it. Because most have never stepped into the shoes of those disadvantaged by the nuances of sexual harassment. When we do, the distinction between ‘flirting’ and ‘hurting’ become amply clear. Women know that experience best because women are most affected by it. And indeed some men too- though the percentages are far less and even then, male experiences of sexual harassment are often attributed to the actions of other men. That apart, the experience of sexual harassment is subjective. Just like a colored person’s experience of racism or a minority person’s experience of ethnic or religious exclusion. The goal of Equality is to walk in another person’s shoes and acknowledge that experience. As has been aptly phrased by Madame Justice L'Heurex Dubé (Justice, Supreme Court of Canada, rtd.) "It is important to walk a mile in another person's shoes. As it is possible to grow up in the same family, neighbourhood, school..... And yet, have totally different experiences depending on whether you are a man or a woman. The way to resolve differences therefore is not to suppress those who are different, but to notice them and not try to see our reflection in them.” After its opening Preamble, the current Bill abandons the shoes of Equality at the door and simply walks out.

2. Prevention.

Unless we enrol people into the idea that a healthy workplace is of benefit to us all, there are no stakes in challenging inappropriate behaviour at work. It is not in our nature to do so especially when we think we are least affected by it. The current bill fails to prioritise prevention- the most innovative aspect of Vishaka. The judgement placed a positive onus on employers and other ‘responsible persons’ to prevent sexual harassment at work. As a result, we have witnessed the advent of workplace policies complemented by orientation and training on the sexual harassment. In some countries “sexual harassment and non-discrimination training” are mandated by state law and go so far as to stipulate a minimum level of training. A preventive approach builds workplace champions in recognising and responding to sexual harassment. Enrolling individuals in this way is inevitably more inclusive and far-reaching in building awareness, capacities and a culture of change in professional/appropriate workplace conduct. Prevention enables people. It goes to the root of what underlies inappropriate behaviour- attitudes.

In my years of engaging with workplaces on this issue, most have been willing to comply with prevention. It is an opportunity for workplaces to assume responsibility to create safe and healthy work environments for all persons (women as well as men). In other words, prioritising prevention has helped build stakes amongst workers/employees and others to take responsibility for eliminating sexual harassment at work. Such education has equipped even junior level functionaries with language, an ability to identify direct and indirect forms of sexual harassment and the skills to determine appropriate levels of intervention. Such intervention can sometimes involve a simple request for an individual to cease behaviour which is unacceptable. The 2010 Bill fails to capitalise on this reality and so harness an increasing level of willingness to comply.

For these reasons, I had suggested the Bill be framed as the “Prevention of Sexual Harassment” Bill. Its current title - “The Protection of Women Against Sexual Harassment”, like most legislation affecting women, continues to stereotype women as ‘victims’ of abuse rather than as agents of change- a pitch that is incompatible with the equality principle. It smacks of paternalism which undermines men and women as equal partners in creating a culture of change- a more holistic and inclusive response to unacceptable workplace behaviour. Eclipsing the importance of prevention denies the possibility to orient and enroll employers and others towards attitudinal change (the very obstacle which has historically denied women access to equal and fair decision-making at workplaces).

3. Expertise.

Vishaka created a unique model of redress for workplace sexual harassment. There is nothing like it in any other country. It includes:

Ø A committee with 50% women and a chairperson as a woman

Ø The presence of a 3^rd party ngo with expertise in sexual harassment.

However, the Committee was intended as an option of last resort when effective preventive mechanisms have been either ineffective or unsuccessful.

50 percent women and a woman chairperson have been retained under the proposed Bill. Third party ngo presence well versed with the issue of sexual harassment have unfortunately been diluted to include ngos committed to “the cause of women”. That’s like inviting a software engineer to do an electrical engineer’s job. Presence on a committee is no guarantee of sound understanding or skill to address sexual harassment. Experience has shown that the presence of skilled persons generates a three-fold benefit:

i. someone who is knowledgeable and experienced about the issue of sexual harassment;

ii. someone who can orient other committee members around that knowledge base and expertise (i.e. institutionalizing expertise) and

iii. someone skilled in achieving a more fair and equal outcome

As part of a preventive approach, civil society organisations (CSOs) have been called upon over the years to orient and train workplaces on the issue. Not only has this inspired collaborative processes, developed skills and created a knowledge base on the issue, but it has required workplaces and CSOs to understand and adapt to the language and culture of one another. Through the current Bill, that potentially rich resource of understanding and skill accumulated over the years has simply been watered down and marginalised.

4. Cost effective.

Prioritising prevention over redress stakes individuals as well as institutions/workplaces to effectively and efficiently respond to the majority of cases involving sexually inappropriate behaviour in the very first instance. In 2004, the US recorded a 16.4 billion dollar net benefit as a result of the 1994 Violence Against Women Act which adopted a preventive approach. In other words, in terms of time, money, harm, reputation and health, prevention simply costs less.

5. “False and Malicious Complaints”.

Through the many versions of this Bill, there has been a resounding demand to delete this provision as it simply nullifies the law’s purpose. Not only does it project mistrust as a starting point but it serves to discourage women who already know and understand the pitfalls of ‘proving’ sexual harassment. In no other area of law, does such a penalty clause exist with reference to a specific group of people. The proposed clause is not only discriminatory but rooted in historical stereotypes about women complainants. Of note is the emphasis of the section on a “false complaint”- no parallel penalty is given for misleading submissions of an accused. Irrespective such provisions are hostile and divisive in addressing any human rights concern.

6. Much more can be said about some glaring inconsistencies in the Bill which betray inadequate research, knowledge and regard for the subject. These include- inconsistency in projecting sexual harassment as an established form of discrimination; a poorly drafted section on so-called “prevention” which fails to address the impact sexual harassment can have on workers as a whole when it pollutes the workplace environment (internet pornography for instance); an alienating shift from the user-friendly approach developed through Vishaka to a courtroom approach; emphasising harmful and outdated criminal law standards of ‘proof’ rather than "probability" as a measure for determining the outcome of a sexual harassment complaint; failing to address intimidation of witnesses or the complainant which can result from filing of a complaint; and wholly inadequate consequences for non-compliance which betrays any serious attempt to understand or eliminate sexual harassment at work.

We live with archaic notions of law. All sources of law do not end with the word “Act”- take customary law, International law, or judge-made law for example. Vishaka, is law. A rare but wise Supreme Court at the time, understood the snail’s pace with which Parliament would respond to the reality of sexual harassment. So guidelines were created and made binding “in law” Bureaucrats have lived with the insecurity of that knowledge and 13 years hence, yet another Bill is born.

It has always been my concern as a lawyer that laws are accessible, user friendly and doable- for the people, by the people so to speak. Law has to be simple enough so that people can internalise it into their daily choices. If they can’t internalise it, they won’t trust it. That’s common sense. It means most of us would want to work in safe and healthy spaces and would invariably choose to reject inappropriate workplace behaviour. Vishaka built on contemporary equality to give value to such choices and breathe life into everyday-decisions as they impact us. For 13 years the legislature, rather than take proactive steps to strengthen our choices, went to sleep. It emerged, as sleeping beasts often do, hungry and resentful. Behemoths like this are determined to drag us back into a legal jungle of rules, procedures, legalise and ignorance and in the process usurp our common sense, forsake our trust and slay our choices.

In my years of working on this issue, I have found many workplaces, institutes, organisations and individuals willing to entertain a conversation and practice around sexual harassment because Vishaka made it user friendly, inclusive, non-threatening and doable. The practice has been not to create mini-courtrooms at workplaces but rather, enable people to address the issue as a workplace concern that affects each and every one of us- men and woman- through common sense. In my years of working on this issue, I have found many workplaces, institutes, organisations and individuals willing to entertain a conversation and practice around sexual harassment because Vishaka made it user friendly, inclusive, non-threatening and doable. The practice has been not to create mini-courtrooms in workplaces but rather, enable people to address the issue as a workplace concern that affects each and every one of us-men and woman. No doubt there are an equal number of workplaces who simply aren’t interested- where gender concerns don’t seem worth it. Responding to the latter is never resolved through an “Act”. It calls for action- the political will to implement what is already there. Vishaka has been lauded around the globe as an innovative milestone for contemporary human rights.Following the success of Vishaka, Bangladesh created a similar law through a judgment of its own highest court in 2009. In its present form the current Bill not only snubs that ‘difference’ but sadder still, belittles the courage that characterised a Vishaka outcome- from its origins, a rural woman who suffered the absence of a law, to a special Judge and his Court who rose to the challenge and provided her with one.

Thirteen years post Vishaka, our understanding and experience of sexual harassment has matured. My question to the legislature in creating this Bill echoes that of my friend, the electrician - why didn’t they get it?

©Naina Kapur 2010

Take a look at my PhotoArt Blog

2009-06-15T23:25:00.000-07:00

For those of you who have encouraged me to post some of my Photo Art-a recently acquired passion- please go to http://www.nainakapur.net

I had the good fortune to exhibit at Epicentre, Gurgaon in May as part of a theatre installation called the "Rubaru Series". If you missed it, there's a chance to view another exhibition at Epicentre at the end of July/beginning of August (will keep you posted). This one is called the "Freedom Series". If you want to know more about my work, do contact me directly at naina.kapur@gmail.com

Am happy to hear feedback on the site as well.

Naina

Sticky, Icky Gum

2009-04-14T00:03:00.000-07:00

Yesterday I decided to visit an aunt who turned 90 years of age. “There aren’t many 90 year olds I get to meet aunty”, I said to her. Aunty never married- there is little I know about her except that she held a senior government job for many years- one of the few women of her generation who worked.

Over the years, I have met her intermittently and each time marveled at not only her grace, but how much her physical age has simply refused to eclipse her upbeat energy, spirit and humour. A single line could make you laugh, confidence could match, if not outwit, your own, and always a word of warmth to endear you. “Jeethay raho” (long life to you) she reminds me. Yesterday however, something of her had begun to disappear. As if overnight, she was visibly receding into some obscure space where neither past nor future exists and a present is lost sight of.

What is it about age that makes us aware- or not? As my own parents are near or enter their 80’s, the mortality of life which draws them eerily close has in some way come home to me. Time and again, we resist the idea that we too, will grow old. For now, it seems fine to worry about the next acquisition, how I might maintain it, what more can I earn, how my kids will turn out, where to take my next vacation or what the future will bring. Yet as I watch the aging around me, I know that before long, the challenge of a day will no longer be about the future- it will be about now. It will be about reconciling with a retirement that just yesterday appeared like a distant pinhole on a life map. It will no longer be about what seems a critical workplace negotiation but about how to negotiate a set of stairs, where to find those damn reading glasses dangling from a chain around my neck, and how to accept a body which ages ahead of a mind or, vice versa.

And then I ponder, where will I ever find the time between seconds to reflect on the purpose of it all.

There is a lovely ad on television these days (unfortunately about an SUV) which asks a series of truths through poetic visuals:

“If you looked back on your life

What would you remember?

The corner office?

The corporate powerplay?

The VIP lounge?

What would you remember?”

Excited at the possibility of exploring this with aunty, I ask her “So, how does it feel to be 90, aunty”. She pauses, turns to me and says “I never remember”, then turns back lost in unknowingness of a distant expression. She brings home a missed truth for the ad maker- that if we get there, will we even remember?

Each year, we know we are getting older. And yet, we defy and deny the reality of what it will bring- at the very least, it invites the physical challenge of aging. I used to lift all manner of heavy items with ease and prided myself on being among the few women who could do so. Now, I think twice. My luggage is lighter when I travel. Large items in my home are on coasters, and I lift only when there’s no one else around to do it. To deny that physical change is foolish. Many of us realize that. But beyond the physical lays a more deep rooted non-recognition about the quality of life we now wish to live. I am reminded of this fact each day by a wall hanging in my drawing room. It reads- “In the end, all that matters is how well did I live, how well did I love, and how well did I let go”.

I think it is the last “how well” that stays with me. “Letting go”. For many years of my life, ‘holding on’ was the motto of the moment. Be it an ideology, an opinion, a place of work, or a relationship, I held on. I used to be an ‘ideological feminist’ and I clung so hard to what I believed in, I couldn’t see how it largely manifested as anger. Even the sabzi-wallah (vegetable vender) wasn’t spared. Destruction loomed large in the world I hung on to. Then, without notice, that very world suddenly became a messy piece of chewing gum ruthlessly clinging to my hair. No matter how much I struggled to get rid of it, we remained stubbornly stuck to each other.

Rescue came from the most unlikely quarter. It took one of my now favorite films, “The Matrix”, to tackle the gum. A young computer geek is led by a series of events to an Oracle to learn whether or not he is “the One”. In her kitchen (yes, the Oracle has a kitchen), she points him in the direction of a plaque above an archway behind him which in Latin reads nosce te ipsum meaning “know thyself”. A phrase I may have heard umpteen times now resonated so precisely with my own life. “Know thyself”. Implying if I didn’t, then I must live the repercussions of not doing so- Sticky, icky pieces of resin furiously invading my hair forever! My brand of ‘feminism’, as with many of us I think, had turned toxic. It had infiltrated me in a way that could no longer distinguish itself from my true being. As I made myself more and more conscious of that fact I became intensely aware of not liking who I had become and the reality I had created. My worlds were split between who I was, and what I had done. Yet rather than struggle with it, I began, for want of a cliché, to love them both. To ‘Know myself’. Only in that acceptance could we let one another go. I became unstuck.

My father was a senior radiologist in a hospital for thirty years. He retired at 79. For many years, he was a respected man in charge, who held the combined qualities of a short temper and gentleness. He was a leader in his area of expertise. He taught residents in abundance, saved lives, and innovated procedures. At 65 he went to China to learn acupuncture. The star student. Soonafter he retired, my father came to visit me. That is when I first experienced his struggle with age. Back then, his concern was about the world and his existence within it. Now his only concern was existence itself. He has read Deepak Chopra or "How to Sweat the Small Stuff" with a hope that at the end of his life he can rid himself of all his accumulated negative traits. He shares with me his deep desire to do so. And he perplexes over those seemingly helpless moments when he still gets angry, irritable or negative. He simply can’t understand how that happens when he is seeking the exact opposite. His day to day includes “did anyone see where I put my car keys”. More recently he asked me “Naina, am I slurring… I sometimes think I’m slurring now…” I always say no. In him I see where I will also arrive. Old age. For many of us at middle age our parents are telltales to that path. Moreover they are a reminder that either I simply let the passage of time escort me to the reality of who I am, when I am less equipped, less able and more frightened to deal with it or I can do it now.

The danger of non-reflective aging is that it lulls us into a false sense of who we are and how we cope. Denial is that precious window casing we build around a belief system. In one of my windows, success was dressed as plenty of money not quality of being- a belief that still resonates in the wary wonder of a family convinced I’m headed for the monastery! Another window display evokes ‘love thy neighbour’ but ‘only if they love you first’. Finally, the window which fashioned love as the extent to which you own another, not the manner in which you liberate them.

Perhaps it’s the 90 year old aunt, now 82 year old dad, ideology, The Matrix or messy gum- perhaps all of this and more have shown me one truth. There is nothing that prepares you for either a death or a birth excepting how you chose to realize your present. That will determine how you experience the road to growing old- as a transition or an end. Back then, I was 39.

Now I’m 49- a perfect precipice from where, once again, I must learn to ‘let go’.

A Moment's Hesitation- the source of preventive law

2009-03-16T02:17:00.000-07:00

An established senior counsel told me the other evening that when clients go to a lawyer in India, most are encouraged to litigate. Advice which is commonly followed by the lawyers’ claim of 70% success just in case his/her client has a moment’s hesitation. But to what end?

Litigation is a tool for damage control. It provides band-aid support to an individual person and their individual case. It does nothing to engage or enhance human relationships. Rather, it converts real life harm into legal facts to which we can apply legal rules. In the end, litigation is designed to assign blame. It does almost nothing to alter the system that could have prevented the harm in the first place.

It seems common sense therefore that in a litigious nation such as India, where the human drama of a person coming to court is competing with 30 million other human dramas waiting to be heard, preventive law would be the natural option.

What then is preventive law?

Simply put, it anticipates and prevents a legal problem from occurring. In other words it is a proactive mindset.

Most legislation and subsequent litigation are based on solutions to problems which have already occurred. It’s rare to find law that encourages preventive practice. When clients hesitate about going to court, it seems to me that moment is filled with their silent seeking for a more enabling alternative. Something better, less costly, more effective and less time consuming. Where is the guidance which leads them to realize that possibility? Legally speaking- the Constitution. Most Constitutions have a set of rights designed to promote basic fundamental goals for it’s’ citizens and others. And most Constitutional rights are easy to articulate for clients. You don’t need the legal jargon. What’s complicated about ‘the right to life with dignity’; ‘freedom of expression’; ‘freedom of movement’; or the ‘freedom to practice one’s religion’? Rights we experience in our daily life only we don’t call them ‘constitutional’ or ‘fundamental’ or human rights.

More simply still, you only need to understand one of these principles to access the rest. Equality. It is the corner stone of all other human rights and therefore, of preventive law practice. Rarely do lawyers draw upon this common sense principle to advocate problem-solving practices outside of litigation.

Take the case of disability or senior citizens for example. Equality norms call for enabling all manner of persons challenged by age or other disability. I discovered this in 1999 when I invited a person with disability to address a Judicial Institute in the South. There was no wheelchair access to the building. Until the Institute was faced with a person with disability, such a need/right did not exist for them beyond theory. Initially, we built a ramp to allow access to my speaker. After her session however, judicial participants present committed to create like access to their courtrooms. When you alter mind sets, you enable people to think inclusively and practically about others unlike themselves. Consistent with the equality principle, preventive lawyering encourages that brand of proactive understanding.

A more poignant example of late is ragging which resulted in the tragic death of a teenager at a medical college. Lawyers will file a criminal or civil case, endure an unending trial which may or may not lead to guilt and seek a punishment – which is unlikely to prevent the same from happening again. By then, a minimum of 5 years will have lapsed. And more legislation will be sought to ‘solve’ the problem. But human problems crave prompt human attention before life around them wanes and disintegrates. In all this litigation what compels ‘ragging’ to systematically and proactively stop? Where have institutions been made aware and therefore accountable? Where have stakeholders been consulted and engaged to change ‘the way things are’? Where have we created practices that could have prevented yet another tragic episode?

That is where the practice of preventive lawyering becomes relevant, engaging and transformative. Preventive law could create built-in yardsticks to make educational institutes comply with prohibitions. Financial grants and aid to colleges could be made conditional upon compliance. The goal would go beyond ad-hoc band-aid punishment of individuals towards a shared culture of responsibility and accountability by all stakeholders (i.e. the University Grants Commission, colleges, students, leadership and decision-makers). This is where preventive law finds its niche. Rather than address a problem through one of loss, blame and litigation, it engages with everyone to use multi-dimensional practices to solve the problem.

What’s the difference with preventive law?

It fulfills a multi-dimensional role of human relating through equality compliance. And it does this through creative possibilities- around attitudes (training on myths, stereotypes, and assumptions); environmental aspects (which may exclude or include); interacting with the social context of person(s) who are impacted by the problem; better informing the multiple layers of decision-making beyond case law precedents through real life contexts; and challenging the complex jargon of legal language by inviting people to speak and act in ways which give voice to their contexts and concerns. It can be hugely inclusive and certainly less expensive. It makes possible to imagine a number of ways in which a problem can be unpacked and understood- ways which would not have been considered by traditional legal practice.

Where then is our renaissance lawyer who will rescue that client from the procedural escapades of litigation? Who is prepared to swoop into that moments hesitation and suggest at the outset to his or her client - 'shall we try the road less traveled by'. It surprises me how much courage it takes to become the renaissance lawyer. In all my experience with litigation, I can only name a few who were inclined to steer clients to a preventive alternative. The rest would go to court.

I truly believe that when lawyers counsel clients to litigate at the outset, it is an act of sabotage. In that default moment of advice, the lawyer has lost sight of why s/he is there in the first place. I say this without judgment. We have bright talent in our legal community and a young generation who is so willing to aspire for more. Perhaps we owe them a different counsel from what we inherited. Entering a client’s hesitation to guide them towards expansive possibilities is what might make law a noble career choice. Indeed it means we must acquire new skills: receptivity to human experience; engaging with social contexts unlike our own; a larger aspiration to benefit others and ofcourse, deep self-reflection on why we are here. Skills that can be cultivated through practice and if law schools are inclined, through learning.

This is not a call for charity or pro bono work- it is an invitation to rethink our “professionalism”. We are so programmed as lawyers to protect citizens from one another that we have betrayed the skills, function and mindset to facilitate them to cooperate with one another. That is the job of preventive law. To expand the traditional functions and structures of law so as to create openness, understand the emotional, financial, relationship, mental, social and spiritual contexts of problems and the connections between people who experience those contexts. Each time I look at a courtroom and see an inflating race of lawyers ‘battle’ it out, my heart sinks at the lost opportunity and insight of lawyers to help prevent problems from recurring.

I am not advocating the elimination of litigation. There are real occasions when the oppression and dominance of one power over another requires such intervention. But law has to stop being sourced in cases and precedents; it has to come from human interactions which may give rise to a legal problem and not an inevitable court case.

Preventive lawyering is a function whose time has come. Only when we give value to that moment’s hesitation by our client, will the meaning, practice and profession of law be truly served.

The Aspirations of Law

2009-03-03T22:51:00.000-08:00

In 1997 I was lead instructing counsel before the Supreme Court of India in the case of Vishaka v State of Rajasthan & Ors.. It's perhaps better known as the sexual harassment case. I filed the case as a public interest litigation in 1992 in response to the harassment encountered by a rural level change agent (“B”). “B”, at the behest of the state government, was advocating against child marriage. In the course of her advocacy she was sexually harassed by the upper caste - she reported the occurrence to the local authority that did nothing. That negligence resulted in her gang rape by 5 upper caste men. Rather than opt for the usual FIR (first information report to the police station) against the rape (which was done anyway), I preferred to file a case before the Supreme Court against state inaction on sexual harassment. Yes it was a case about sexual harassment. Beyond that though, it was a case which illustrated a pattern of not being heard- of not being seen- of not being believed. It was a case that would test the real aspirations of law. Who did the law serve? Who did it see? Who did it enable? And how far was it willing to aspire to get there?

For me the story of “B” had far reaching implications for all women who faced sexual harassment, as in this case, in the course of their work. For B, there was no office. No reception. No computer. No staff. And no media. There was one woman, doing her job, moving district to district to perform a greater good- in a workplace common to millions. And it was no longer a case about stringing together pieces of yet another endless criminal investigation without any end in sight only to arrive at "not guilty". It was about a much larger meaning- the underused and often misunderstood right to equality.

In their failure to act, the local authority had denied “B” her right to a life of equality and dignity. Most important, it exposed huge gaps in a perspective and practice which had for far too long clung to the well beaten and self-defeating path of criminal law. Times had changed.

To have any real meaning, equality as a human rights principle needed to assert its worth in preventive ways. It needed to be rescued from the far flung reaches of an alien International sky and brought into the dust and dirt of domestic life. It had to go beyond International branding- to product value. It had to bind a state not only in words to other states but in practice to its own people.

Personally as well as professionally, the case was transformative. Personally, I discovered the real reach of being a lawyer. I allowed myself to surrender to a creative, purposeful and yes, innovative interpretation and application based on people's lived realities. Not something you learn in either law school or mainstream practice. For want of a better cliché, it gave me meaning.

Professionally it made me see the true value and expanse of equality in creating social consciousness within us and around us. The case was about how we can creatively and truthfully look at another’s life and their experience of harm- and rather than ‘judge’ it from our point of view, write it into an enabling vision. That is the true aspiration of law.

Vishaka came to be emblematic of not just one woman but most women. It became the reason why I first chose to be a lawyer. To create social change. A possibility that exists if we could just acknowledge that the evolution of human rights is meant to take us beyond the limitations of rules, evidence and adversity which divide us to the values and systems that can enable us. Those subtle areas of life and law which connects us all, where the state of another’s self-worth will invariably enhance or diminish my own. What does that mean? Taking a look at who I am and where I come from and how that determines my response to a life event. I might see myself as a generous and giving neigbour, but still harm a stray dog who seeks occasional refuge in front of my home. It’s all very unconscious- or not. The point is, my own evolution will shape my attitude and conduct towards another’s pain. Only when I am willing to unpack the ingredients that shaped that movement can I perhaps know what it is I never saw.

How did Vishaka pave the way?

Before Vishaka, the language of “sexual harassment” remained coded, invisible and frivolous (“eve teasing” is a good example). The “sexual” dimension of “harassment” was disabling and unspoken. We were uncomfortable with it. And nothing short of attempted rape would suffice for making a complaint. Even then, it fell within the moral assessment of ‘criminal’ law. That meant, a person would have to prove in court what no one else saw, submit to a medical test which most of us would never endure and then repeat and sometimes embellish the facts over and over again, until they “sounded” like less of a yarn and more of a truth. In the process, it negated truth. In the case of “B” the outcome at the criminal court determined that she had never experienced the harm she complained of. The basis of its judgment was that:

“It is beyond comprehension that those who live in rural culture would in this manner commit a rape… Indian culture has not fallen to such low depths, that someone who is brought up in it, an innocent, rustic man, will turn into a man of evil conduct who disregards caste and age differences and becomes animal enough to assault a woman…”

In my life experience, criminal law has in the most obvious of cases, disinherited the truth. Equality law embraces it. Human rights exist beyond courtrooms. They are rooted in altering systems. Yet there have been futile attempts to fulfill that aspiration. Most often they have stagnated in the moral, procedural and often linear confines of courts and criminal law. A true aspiration of human rights calls for designing (sometimes re-designing) processes so that they are compassionate and enabling. Systems which enter daily life and prevent harm from occurring in the first place. With Vishaka the aspirations of law matured.

In treating sexual harassment at work as a systemic concern, driven by human perceptions, Vishaka evolved the law as a means to change the way we look at harm as others live and experience it. Sexual harassment was about equality and loss of dignity. Systems (in this case, workplaces) had to assume a shared responsibility to foster change through prevention. That is the goal of equality- preventing the harm from taking root.

By accepting that how we treat others unlike ourselves may result in longstanding systemic harm, Vishaka opened itself up to the possibility of real social change simply by changing the way we look at life. It promoted awareness- demystifying discomfort by encouraging meetings and discussions on sexual harassment, orienting workers to what it means to be sexually harassed, imparting correct skills and information through experiential learning. Most impressively, Vishaka took a strategic leap forward for equality by creating mandatory committees at all workplaces with third party experts. Such experts would be a means to ensure informed processes and balanced outcomes. Equality calls for inclusive systems. Systems change when we are willing to work with others, respond to others, and learn from others, unlike ourselves. It invites us into the modern world of interconnectedness- not just through the internet, but through common goals. It’s fair to say that the right to live a life of equality and dignity is a goal common to us all.

Throughout her saga at the criminal court, I frequently met with “B”. It was always clear to me that the absence of any equality yardstick to measure the treatment she met within court (to which I was witness) were at most disabling and at worst, unjust. News of the acquittal by the criminal court was therefore no surprise. Post the Vishaka victory, I quickly made my way to Jaipur to convey the news to “B”. Her joy was uncontained. In all she had risked, she was able to find value through her heart- for “B”, Vishaka was a victory for “all women”. Karma teaches us extraordinary values.

In hindsight, I do realize that Vishaka was a case before its time. The other day, a senior partner of a law firm called and asked me- what does it mean to be an “equality” consultant in law. I explained it to him. His response. “But this is still not something we practice in India”. The mind is a funny thing- it expands when it feels secure and lives in denial when it apprehends risk. The aspiration of law and indeed of life, is only realized when the aspiration of an individual allows it to be so.

But that’s another blog.

Note: the entire experience of Vishaka has been well documented by Avani Mehta Sood. Cut and paste the following link:

http://reproductiverights.org/sites/default/files/documents/media_bo_India1215.pdf