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EXCLUSIVE! Supreme Court lawyer Mukul Rohatgi: Flirtation is not rape

By Sheela Bhatt
Last updated on: December 03, 2013 11:58 IST
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Mukul Rohatgi'If the court realises, within a couple of years, that women are making all kinds of allegations for other ulterior motives, then it will become difficult for women,' well-known Supreme Court lawyer Mukul Rohatgi tells's Sheela Bhatt.

The law intern who wrote a blog post narrating the trauma she experienced as an intern under a retired Supreme Court judge last year has not been well-received by many.

After her blog created a stir, the Supreme Court formed a committee to look into the allegations. It is here that Justice A K Ganguly's name cropped up.

Justice Ganguly has stoutly denied the allegations, saying he is the victim of circumstances. He has not clarified yet the circumstances and how it made him the victim.

As expected, many personalities from the legal fraternity have rushed to Justice Ganguly's defence. Justice Altmas Kabir, the former Chief Justice of India, expressed shock over the 'hard to believe' allegations; he thinks such serious accusations will have a 'cascading effect'.

Soli Sorabjee, the former Attorney General of India, also stoutly defended Justice Ganguly.

In an exclusive interview with's Sheela Bhatt, Mukul Rohatgi, the senior Supreme Court lawyer, defends Justice Ganguly while discussing three recent events of sexual harassment of women by men in position of power.

In her blog post, the law intern has narrated the trauma she went through when she was assisting a recently retired Supreme Court judge. Later, Justice A K Ganguly has been identified as the man, she claims, sexually harassed her.

She has stood by her version before the committee formed by the Supreme Court. Don't you think it is imperative for the Supreme Court to take action against Justice Ganguly?

From whatever I have read, I don't think the judge is at fault.

The law intern has not said he touched her or pushed her or something like that.

If she claims she was in his room and if she was feeling uncomfortable or something like that, she could have left the room.

From the legal point of view, does her blog have any value? She has, indeed, gone through trauma due to interaction with the judge.

Also, under the new law, sexual harassment is defined differently.

The intern doesn't say at all that there was a physical sexual act. The new definition has nothing to do with this contingency. It is possible that when a man and a woman are sitting in a room, she feels uncomfortable in his presence.

In such a situation there is no criminality as there is an allegation in the Tehelka matter where the area was closed and one was forcing oneself upon the other.

There is no comparison between the case of the law intern and the case against (Tehelka founder-editor) Tarun Tejpal.

You practice in the Supreme Court. Don't you expect the highest standards from the judges?

I do expect high standards. But I also expect that people make genuine allegations. How do you know that the allegations are correct or not?

Why would any woman make such allegations?

Her blog itself suggests that there is no physical sexual advance!

On the basis of her blog and otherwise, don't you think women encounter such troubles in many professions including the legal profession?

Why the legal profession only? It happens between a doctor and a nurse. It happens in all kind of professions. One has to prove such things. You can't only make allegations.

You disagree with her version, but do you think it was brave on her part to speak out?

I don't disagree with her version. I am saying her version doesn't mean that there was any sexual advance. That is my reading of her blog.

She says she was uncomfortable. You can be uncomfortable even if someone is staring at you!

We live in the modern world. It is not necessary that only sexual intercourse can be termed as an assault. Even flirtations could be psychological sexual aggression.

I don't think flirtations could be equated with aggression like rape. That is not correct.

So, do you want us to wait till the final assault happens?

We are not living in a tyrannical world where there is some slight flirtation somewhere and somebody should be accused of rape. That is not correct. Please strike a balance.

Under the new law, was it necessary to arrest Tarun Tejpal? Can you explain the legal point of view?

Yes, I think so. The statement that she (the victim) made under Section 161 and 164 (of the Indian Penal Code) clearly suggests prima facie that the amended definition of law applies in the case.

An FIR (First Information Report) has to be registered and the matter has to be investigated. That is the law.

In that investigation, more or less, it is necessary that the accused be arrested. The investigation can show whether the allegations are correct or incorrect. If it is incorrect, the FIR can be closed.

Tejpal's lawyers said he was ready to surrender his passport and ready to extend full cooperation, so why was his arrest necessary?

That is the discretion of the police. The police will have to consider the circumstances, the nature of investigation, the requirement of custodial investigation and the gravity of the offence.

It is not for anyone to have any say in it. Anyway, in every such case, the man who is about to be arrested would say that I will cooperate, I will surrender my passport etc. It has limited impact.

People like you have benefited so much from the legal system including from the Supreme Court. But none of you have pushed for implementation of the Vishakha guidelines in the Supreme Court.

I have never opposed its implementation. It is the Bar Council which has to do it. Now they have done it. Some ten days ago.

How do you see similarities in the Tehelka issue, the issue linked to the former Supreme Court judge and the 'Snoopgate' scandal that allegedly involves Gujarat Chief Minister Narendra Modi?

Do you see the empowerment of women helping such issues to come out in the open now?

I don't see similarities in these three incidents. But obviously there is empowerment of women. If any kind of indecency takes place or any kind of assault takes place, the laws are strong enough to help women take action against even powerful accused.

I don't think you can push things under the carpet.

Coming back to the Justice Ganguly case, don't you think he has to step down from his current post (as chairman of the West Bengal Human Rights Commission) to ensure that the proceedings remain transparent and fair?

It should depend on the report of the Supreme Court committee that is looking into the intern's allegations.

I haven't seen the report, but if it suggests what I am saying, then he should not step down, but if the report does say there is a prima facie allegation, then he must step down.

And if an FIR has to be filed against Justice Ganguly, then the police investigation must start.

Do you think there are enough ways and a framework where women can fight for justice?

There are enough ways, but you know it is an equally dangerous proposition. If anyone makes serious allegations it can lead to arrest.

We have seen the misuse of Section 498-A (invoked by women against husbands, normally. Even if the complaint is false, the accused is presumed guilty until he proves his innocence).

The court records say 80 percent of the cases filed under 498-A are misused.

I don't want these kinds of allegations of rape to go the same way.

If that happens and if the court realises, within a couple of years, that women are making all kinds of allegations for other ulterior motives, then it will become difficult for women.

If you keep crying wolf, it doesn't really help. It has to be balanced by the court and the accuser.

We have a feeling that there is a kind of cozy club between lawyers and judges. They protect each other.

That is not true. They do their job, we do ours.

In today's time of so much awareness, how can one protect anybody? It may have been so in the past, but not today.

Even if one wants to protect somebody, it is not possible now.

Image: The well-known Supreme Court lawyer Mukul Rohatgi.

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