24/04/2019
Where is the Integrity? Sexual Harassment and the Supreme Court of India
A three member panel of Judges has been constituted to hear a complaint of s*xual harassment by a Supreme Court Employee (since dismissed) against the Chief Justice of India (CJI).
While many applaud this as a step better than the CJI hearing the matter in his own cause on April 20th, obvious questions still remain as to the criteria adopted to constitute this Panel and whether it will adhere to a process consistent with the Equality principle contained within the existing law and judgements on workplace s*xual harassment.
With regard to the constitution of the Panel, Justices SA Bobde, the senior most judge was appointed by the CJI himself. According to reports, Justice Bobde says he inducted two other judges:
"I decided to have Justice Ramana in the panel as he is next to me in the seniority and Justice Banerjee as she is a woman judge”
Apart from seniority and the token gender card, what additional criteria were used to select this Panel. I ask this in light of the Supreme Court’s own Gender Sensitisation and Internal Complaints Committee (SCGSICC) Regulations of 2013. Why was guidance not sought from these Regulations to ensure a qualified and independent Panel was formed? The 2013 regulations were specifically put into place by the CJI to comply with existing judgments and law on the prevention, prohibition and redress of workplace s*xual harassment for the Supreme Court of India.
The regulations provide sufficient criteria for selection of qualified Committee members. Such criteria includes inducting one or two Judges from the Court “in accordance with Vishaka”. Given Vishaka vs State of Rajasthan & Ors (1997) is the leading case on workplace s*xual harassment, it also made it compulsory that the Chairperson of such a Committee shall be the senior most woman. This condition has been replicated in the 2013 Sexual Harassment Act. Such a condition has not been met by the existing Supreme Court Panel.
The 2013 regulations also mandate that any such Committee "shall consist of not less than 7 members" According to the regulations, such members are to be selected from diverse corners of the Supreme Court. They include (amongst others), senior members of the Bar, the Supreme Court Bar Association, the Advocate on Records Association, a woman from the Supreme Courts Clerks Association, and a woman officer in the service of the Supreme Court of India, not below the rank of Deputy Registrar. However, constitution of such a Committee is subject to a significant proviso-" ... it shall be ensured that the majority of the members of the SCGSICC shall women members"
This criteria has been a staple condition in law since the 1997 Vishaka decision. Requiring that 50% of Complaint Committee members be women was meant to meet the obvious sensitivities and complexities attached workplace s*xual harassment. It was never proposed as a token gesture for gender representation as has been expressly, and wrongly, done by the Supreme Court Panel. The present Panel’s failure to appreciate this simple reality, colours its ability to even appreciate the subject matter of the complaint itself.
In that context, a third criteria present in the 2013 Regulations is also worth highlighting. That of having third party presence on Complaint Committees. Vishaka had mandated the presence of an external presence on such Committees for two reasons. First, to ensure the presence of a knowledge partner with expertise in the complex area of workplace s*xual harassment. Second, to ensure the absence of bias in the process. A slightly diluted version of this criteria exists in the 2013 Regulations. If there was a case in urgent need for compliance with the third party presence criteria this was it! Yet again, that condition has not been met.
And finally in terms of process, at the outset an inquiry body must ensure that the Equality mandate- established by Vishaka and under which the 2013 Act on workplace s*xual harassment was enacted, has been met. From start to finish.
In the present case, that mandate has already been breached. Having used his position as CJI in as well the institution of the Supreme Court as a bully pulpit from which to publicly declare his innocence and brand the complaint as a calculated plot against judicial independence, the CJI has already compromised the equality rights of the complainant. Not only have his actions served to taint the complaint, but they have created an intimidating and hostile environment for the complainant, her family and any possible cooperating witnesses. The very intimidation that the law on workplace s*xual harassment was designed to prevent.
How does the existing Panel intend to remedy this fundamental breach? Were this any other case affecting any other complainant of workplace s*xual harassment, here or globally, such overt intimidation by a respondent would have at the very least benn met with automatic suspension or an order of compulsory leave for the respondent for the duration of the inquiry.
Inquiries into workplace s*xual harassment complaints are investigations, into prohibited behaviour which is s*xual in nature by the respondent at one end, and an evaluation of the impact, i.e harm, caused by such behavior on equality rights of the complainant, at the other. With its questionable composition, tokenistic catering to gender, the absence of any expertise, and no interim measure in place to protect the integrity of the process, an informed, impartial and independent inquiry by this Panel will inevitably be called into question.
https://www.livelaw.in/amp/top-stories/cji-s*xual-harassment-case-justice-bobde-panel-issues-notice-to-woman-who-made-allegations-144481?__twitter_impression=true
u
