The Law against sexual harassment in India has evolved since laying down of the Vishaka Guidelines in the year 1997 by the Supreme Court to the enactment of the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, (“POSH Act”) in 2013. The Apex Court has in numerous judgments acknowledged the care and sensitivity with which the issue of workplace sexual harassment must be addressed and also emphasized on the importance of prevention of sexual harassment. However, while dealing with the allegations of sexual harassment by a former staffer against the Chief Justice of India (“CJI”), various media reports portrayed a duplicitous approach that the Hon’ble Supreme Court chose to demonstrate. The Constitution of India (Constitution), grants Hon’ble Supreme Court the beacon of penultimate recourse to justice in the country, however recent Indian and media reports across the globe, have raised many eyebrows and even questioned India’s Apex Courts approach, and attitude in dealing with the complaint against the CJI. Many have even alleged basic fundamental values of justice and equality being set aside when considered inconvenient for the Apex body.

The story this far: On April 20, 2019 a complaint of sexual harassment was submitted against the CJI by a former Supreme Court employee. As per media reports, her complaint contained allegations on a sworn affidavit along with detailed evidence including phone logs, video recordings, text messages etc. that supported her claims, and asked for an external inquiry into the allegations by apolitical retired judges of the Supreme Court.

On receipt of the compliant, the CJI used his administrative special powers and formed an emergency “special bench” that shockingly included himself, in a clear violation of the basic tenet of natural justice that “no man should be a judge in his own cause”. In the face of massive public outrage at the injustice of this action, an informal inquiry committee (Committee) was formed to look into the complaint, headed by a male judge, with two women judges acting as members. The Committee, did not chose to lay down or follow any procedure for inquiry nor did they allow the  complainant legal representation,. The arbitrary handling of her complaint forced the complainant to withdraw from the proceedings and was quoted by live mint on 1^s May 2019 “I had hoped that the approach of the committee towards me would be sensitive and not one that would cause me further fear, anxiety, and trauma,” she said”. The committee then chose to proceed with a one-sided inquiry and ultimately dismissed the complaint as lacking in substance, completely exonerating the CJI.

What the Law says: The Constitution under Article 125, mandates the Parliament to make Laws for mechanism to inquire into the complaints against the CJI. Till date, no CJI has been accused of any misconduct. According to Article 124 (4) and (5) of the Constitution  a Judge of the Supreme Court cannot be removed unless by a motion initiated by the President of India, and passed by a majority of both the houses, and also states that the Parliament can make law to regulate the procedure for misconduct. The Parliament has also passed the Judicial Inquiry Act, 1968, which also does not mention a specific mechanism for inquiry against the CJI.

The Apex Court has been entrusted by the Constitution to enforce fundamental rights by granting exemplary independence to the Judiciary. Article 21 of the Constitution guarantees, right to dignity of every individual irrespective of caste, creed, gender etc. and is one of the tenets of its basic structure… Sexual Harassment is about on the dignity of the victim, and the movement of prevention of sexual harassment of women at the workplace, ironically began with the Vishaka guidelines laid down by the Apex Court in the year 1997.  More than two decades later, the Parliament passed the Sexual Harassment of Women (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”). In consonance to the POSH Act, the Hon’ble Supreme court, in order to ensure that the unscrupulous act of sexual harassment is dealt with in a stringent manner through fair inquiry, the Hon’ble Supreme Court approved of and accepted the Gender Sensitisation & Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal), Regulations, 2013 [Regulations]. Under the Regulations, there is a Gender Sensitization and Internal Complaints Committee (“GSICC”) constituted. Although these regulations are not applicable to Hon’ble Judges of the Supreme Court, but are reflective of the Hon’ble Supreme Court’s spirit of justice for one and all irrespective of caste, creed, position or gender etc. However, since the complainant was a former employee and governed by the Supreme Court Service Rules, 1961, the jurisdiction of the GSICC has been excluded.

An alternative approach: In the absence of a known mechanism since, neither the in-house procedure nor the Regulations apply, the Supreme Court should have ideally outlined an ad-hoc “best practices” procedure keeping in mind the established and accepted principles laid down in the POSH Act, including:

1) Ensuring freedom of committee members from any bias, prejudice or influence: The presence of only three sitting judges on the present committee raises a legitimate apprehension of bias given the close interaction between the judges and their administrative boss, the CJI. Ideally the President of India can intervene and request for a panel of retired Supreme Court judges and renowned jurists to be on a panel to ensure an egalitarian approach.

2) Presence of an external member [Section 4 (2) (c) of the POSH Act read with Reg. 4 and 9 of the Regulations]: Since the inquiry was conducted within the top Court itself, the rationale behind having an external neutral, independent member with experience of dealing with cases of sexual harassment as envisaged under law, is to prevent the possibility of any undue pressure or influence, thus ensuring a safe environment for the complainant and her witnesses to put up their contentions. An external member, such as a senior advocate, retired female judge or an academic working in the area of women rights should have been appointed.

3) Female Presiding Officer: A bare reading of Section 4 (2) (a) of the POSH Act, Reg. 4 and 9 of the 2013 Regulations state that the committee should compulsorily have a female presiding officer. Thus, even if the in house inquiry is an informal mechanism, in order to comply with the spirit of the law, the presiding officer should have been female.

4) Transparency: A copy of the report was given to the CJI and the judge next in seniority but not to the complainant. A basic principle of natural justice is that the reasoning of any decision must be given to both parties, displaying due and proper application of mind to the issue by the adjudicating authorities. A copy of the report redacting the personal details, if disclosed to the public would only silence critics about the fairness of the procedure.

5) Legal representation for the complainant: As per news reports, the complainant was required to depose before the committee without any legal advisor, and in what she claims was a hostile and intimidating atmosphere. The power imbalance and manifest inequities in this unique case, could have been reduced by providing adequate legal support to the complainant, given that the Respondent in this case was the CJI.

Conclusion: While the stoic silence of the President of India and the Parliament on this matter is bothersome, the core essence of “rule of law” is that the law of the land is above everyone. As the Apex Court is the ultimate upholder of law and the Constitution and the highest dispenser of justice, people of the country are anticipating display of exemplary standards in morals and ethics in this sensitive matter too. After all, “Not only must justice be done, it must also be seen to be done.”

– Priyanka Pai, Associate Inclusion at Work & Sana Hakim – Litigation Expert, External Member & Trainer, Head – Training & Inquiries, Partner Inclusion at Work