feeds from sacw.net
print versionby Dr. Paramjit Singh Sahni
On 6th of November, 2013 a law student, I-1 interning under a retired judge, J-1 of the Supreme Court of India (working in a statutory body) posted on a blog allegations that J-1 had sexually harassed her on 24th of December, 2012. She had not named the judge. The issue was reported in a section of the print media on 12th of November, 2013. The Chief Justice of India (CJI) had two options before him. Firstly to refer the case to the Complaints Committee to deal with the complaints related to sexual harassment in the Supreme Court in existence as per the guidelines and norms prescribed in Vishaka & ors. Vs. State of Rajasthan & others. The second option was to refer the matter to an internal panel of judges on the assumption that a retired judge is still a judge of the Supreme Court and that only an internal panel of judges could enquire into the issue. The CJI chose the second option and set up a three judge fact finding committee to ascertain the truth of the allegations. The panel submitted its report to the CJI on 29 November, 2013. The full report has not been made public so far. However the operative portion of the report states inter alia “Further the Committee is of the considered view that the statement of the intern, both written and oral, prima facie discloses an act of unwelcome behavior.†The purpose of this enquiry appears to be political. Even as the three judge panel was conducting the enquiry, aggressive articulations were made baying for the accused judge’s blood. A State Chief Minister wrote to the President of India seeking appropriate action against the judge who was Chairman of a State Human Rights Commission. An Additional Solicitor General of India (ASG) asked the Prime Minister of India to remove the judge. Even as this ASG was instrumental in getting I-1’s affidavit published in a section of the print media. Legal academicians of a National Law University (NLU) wanted the judge to be disassociated from the institute. Meanwhile the Union Cabinet gave a nod for the Presidential reference against the judge; consequently the judge resigned both from NLU as well as the State Human Rights Commission. There is a lesson to be learnt from the recent instance of a Gender Sensitization and Internal Complaints Committee (GSICC) getting an enquiry conducted against two university students accused of sexual harassment. It has specifically stated that the two male students are not being asked to resign from students’ body where they hold posts! Perhaps such words of wisdom should have emanated from the Judges’ panel which inquired into the case of J-1; and this should have been done right at the start of the inquiry.
In a classic flip-flop the Supreme Court on 5 December, 2013 decided by a full court that the representations made against the former judges of this court are not entertainable by the administration of the Supreme Court! This decision came in the backdrop of another complaint by an intern, I-2 alleging sexual harassment against another retired judge, J-2; this complaint dated 30 November, 2013 was addressed to the CJI.
In Vishaka & ors. Vs. State of Rajasthan & others decided on 13/08/1997 by a three judge bench of the Supreme Court comprising of the then CJI J.S. Verma, Sujata V. Manohar, B. N. Kirpal prescribed guidelines and norms for protection of women from sexual harassment at workplace. The judgement laid down that “these directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field.†[1]
Both the judiciary and parliament failed to do the needful in the next sixteen years. It is evident that post 1997 and up to 2013 successive Chief Justices of India during these sixteen years are in contempt for not implementing the Vishakha guidelines which could have paved the way for sexual harassment cases within the precinct of the Supreme Court. Obviously all cases of sexual harassment within this period went unaddressed as Vishakha guidelines were not enforced. Even then, the Supreme Court on its own motion did not proceed to do the needful. The Court was geared into action after two public spirited women lawyers moved a writ petition and pursuant to the Supreme Court order dated 21.3.2013 in this petition the Complaints Committee to deal with the complaints related to sexual harassment was reconstituted at the Supreme Court to have eight members. True, a Complaints Committee already existed prior to this order but the Regulations pertaining to The Gender Sensitisation & Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013 [Supreme Court Regulations, 2013 for short] were only notified in the Official Gazette of India dated September 21 to September 27, 2013. With this mechanism finally in place the first option was open to the CJI to get the enquiry conducted against J-1 on allegation of I-1. But this option was not chosen. The CJI followed the second option by ordering an internal enquiry. But by 5th of December, 2013 the full court decided not to entertain representations made against former judges. It also opined that as the concerned judge had already demitted office on the date of the incident, no further follow up action is required by the Supreme Court. Ostensibly the complaint of I-2 dated November 30, 2013 had been received in the Supreme Court by then. Several questions need to be addressed.
1. With in a span of less than four weeks two retired judges of the Supreme Court facing sexual harassment charges are being treated differently. What about the equality before the law clause as enshrined in the Indian Constitution?
2. If the 5th December, 2013 decision of the full court is to be the order of the day then shouldn’t the full court in the same breath have declared the enquiry against J-1 to be null and void so that the two retired judges got equal treatment before law?
J-1 was forced to resign from his job of State Human Rights Commission; while J-2 continues to function in a statutory body.
3. Recently a girl student had brought accusations of sexual harassment against two colleagues in a reputed university. There is no reason to assume that a similar situation cannot happen in the courts. Consider a Tribunal constituted by two members one of whom is a retired judge of the Supreme Court and the other an executive member (non-judicial). Charges of sexual harassment against the two members get addressed differently – an internal enquiry by the Supreme Court judges against the retired Supreme Court judge in the Tribunal (as happened to J-1); and the executive member would be ostensibly covered under The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 [Sexual Harassment Act, 2013 for short] which came into force on 9.12.2013. To avoid incongruity would it not be fair that both judges are enquired into under GSICC?
4. How would the charges of sexual harassment on CJI be tackled? Who would constitute the internal panel of judges in such a situation? Or is it being assumed that CJI is not prone to such indiscretions. (Accusations of sexual harassment have recently been leveled against a sitting judge of a High Court. Sitting judges of the Supreme Court including the CJI could be facing such accusations.) Should not the CJI and all sitting judges also be covered under GSICC?
5. Presently the Supreme Court selects judges through the collegium method – that is judges appoint judges. The same Court – in case of sexual harassment against a judge constitutes an internal panel (a sort of mini-collegium). Would this repose any faith in the minds of people that justice would be done to the victim?
6. Presently I-2 filed a writ petition before the Supreme Court seeking inter alia, the setting up of a permanent mechanism in the Supreme Court to redress sexual harassment at the work place for women by all judges, retired or occupying office. On 15 January, 2014 a notice was issued to concerned parties. Till the case is decided how are retired and sitting judges of the Supreme Court to be dealt with in cases of sexual harassment? What if the case of I-2 takes years to decide?
7. J-2 continues to retain his job even as accusations were made against him because the High Court of Delhi granted injunction against the media from publishing defamatory allegations against him without stating that they were mere allegations. Ironically both the Supreme Court Regulations, 2013 and the Sexual Harassment Act, 2013 have an inbuilt injunction against the name of the complainant, respondent and witnesses being made public; the only exception is if the complainant writes to the complaints committee under the aforementioned regulations/law that the name of the respondent can be made public. And even then it can be made public only if the complaints committee agrees to it. Besides it is true, of course, that once the complaints committee finalizes its report the name of the respondent – if found guilty – can then be made public. Is it fair that a witch hunt was allowed to be launched against J-1 in the media by politicians, academicians of a National Law University and by an Additional Solicitor General of India? And he was damned even before the Internal Enquiry panel submitted its report and was blackmailed into resigning from his post at the State Human Rights Commission. Is this ethical? It is all too well for the ASG to use a fig leaf of an excuse that the I-1 gave her permission to make the affidavit – which detailed the alleged incident of sexual harassment – public. But is this what a Government law officer expected to be doing? Shouldn’t she have resigned first before making the affidavit public? Had the J-1 enquiry been pursued under the Supreme Court Regulations, 2013 she would never have been able to do that. The ASG was aware of this as she chose to go public with the affidavit. It is a pathetic spectacle of a senior law officer of the Government throwing all caution to the wind and making a mockery of the rule of law. This law officer’s stance was political and in violation of all the laws in India.
8. Meanwhile media reports indicate that complainant Intern I-1 is not pursuing the FIR route. It is entirely her right to choose the FIR route or opt for another mechanism. The fact is that no FIR has been filed against J-1; no charge sheet framed and no court trial is on way. Is it not legally perfectly in order for J-1 to be immediately reinstated as the State Human Rights Commission and to be provided ample compensation for the extreme mental, social and psychological trauma caused to him?
The Supreme Court should convene a meeting of the full court and pass a resolution formally apologising to J-1. The Court should get the 5 December, 2013 notice removed from the web-site as it names J-1. There is a strong case for judges in all courts in India to face inquiry as per the Sexual Harassment Act, 2013 and if they are sitting Supreme Court judges then under the Supreme Court Regulations, 2013 whenever a charge of sexual harassment is brought against them at their work-place. The same should apply to Attorney-Generals of India, Solicitor Generals, Advocates and Court appointed Commissioners/ Amicus Curiae and Special Investigation Teams. There can be no constitutional immunity for the afore-mentioned in cases of sexual harassment. The victim can also opt to file an FIR under the Indian Penal Code which after the amendments in February, 2013 now makes sexual harassment a crime punishable by imprisonment of one to three years and/or with fine or both. [2]
(Dr. Paramjit Singh Sahni is the Secretary of Public Interest Litigation Watch Group. Email: pilwatchgroup[at]gmail.com)
