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.”[i]
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.[ii]
[By Dr.
Paramjit Singh Sahni. He is the Secretary of Public Interest Litigation Watch
Group. Email: pilwatchgroup@gmail.com]
[i] Vishakha has ceased to be the law of the
land after The Sexual Harassment of Women at Workplace (Prevention, Prohibition
and Redressal) Act, 2013 and also the amendments to Indian Penal Code have come
into force.
[ii] The
identity of judges J-1 and J-2 and interns I-1 and I-2 are withheld as required
under the law.
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