For the first time, the senior most judge of India has been accused of sexual harassment. And what can the SC’s committee against sexual harassment do? Nothing.

news Judiciary Tuesday, April 23, 2019 - 13:29

India’s Supreme Court has found itself at the centre of controversy once again. The country’s senior-most judge has been accused of sexual harassment by a Supreme Court staffer, who submitted a sworn affidavit to 22 Supreme Court judges alleging Chief Justice Ranjan Gogoi sexually harassed her on two occasions in 2018 – and it was just the beginning of her ordeal.

Shortly after the allegations against him were published, Chief Justice of India Ranjan Gogoi formed a three-member bench, headed by himself and including Justice Arun Mishra and Justice Sanjeev Khanna, to convene an urgent hearing of the matter related to the allegations. The Chief Justice of India denied the allegations, claiming a larger conspiracy against the judiciary. The bench asked the media to "exercise restraint, responsibility and wisdom so that the image of the judiciary is not tarnished by these baseless allegations."

The fact that the CJI was part of the bench hearing the allegations against him has garnered a lot of criticism, with the Supreme Court Bar Association (SCBA), as well as the Supreme Court Advocate on Record Association (SCARA), releasing statements against the proceedings after the complaint was made public, and have sought that a full court of the Supreme Court take necessary steps required in this regard and investigate the charges against the Chief Justice of India.

But what about the Supreme Court’s policy on the prevention of sexual harassment as an organisation? Can it take any action in this case?

Does the Supreme Court have an ICC?

The Supreme Court has a Gender Sensitisation and Internal Complaints Committee (GSICC), in line with the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act 2013, to look into the charges and complaints of sexual harassment. The cases and incidents of sexual harassment that take place within the Supreme Court premises can be probed by this Committee.

One of the members of the Supreme Court’s GSICC confirmed to TNM that the panel has nine members. The Committee is led by Justice Indu Malhotra, who is the Chairperson of the Committee; and includes Justice Subhash Reddy; FI Choudhury, a member of the Supreme Court Bar Association, who is also an Advocate-on-Record; CP Malhotra, a senior advocate nominated to the committee; advocate Priyanka Mathur; Advocate-On-Record Anushree Kapadia; an external member, Abha Singhal Joshi of NGO ‘Marg’; one male professor from the Delhi Judicial Academy; and one member from the Supreme Court Clerk Association.

The SC notification on prevention of sexual harassment states: “No woman shall be subjected to sexual harassment at the Supreme Court of India precincts.”

The ‘precincts’ comprise of: “the whole premises of the Supreme Court including the Court block, open grounds, parking, old and new chamber blocks, libraries, canteen, bar-rooms, health centres and/or any other part of the premises under the control of the Chief Justice of India.”

Why it’s useless in this case

The GSICC cannot probe allegations of sexual harassment made against judges. It is only applicable to lawyers, staffers, and any other member employed with the Supreme Court. Furthermore, any step or action that has to be taken by the GSICC needs to be recommended to the Chief Justice of India first, and only the CJI can approve of any action against the accused. Will the CJI recommend any action against himself? Probably not.

So what can be done in this case?

TNM spoke to Karuna Nundy, an advocate in the Supreme Court, who said that this was a unique case and needed a special inquiry panel to be formed to probe the allegations against the Chief Justice of India.

“Ideally, it would have been the National Judicial Accountability Commission that would have taken up such serious charges and had an explicit process by which such things could be decided - it does, after all, concern the Chief Justice. But I think in such a case, the mechanism proposed by the complainant herself, which is to have a special inquiry committee of retired judges, makes a lot of sense. This is a completely unique situation because a top decision maker of the country is accused. So only in this situation, a special inquiry committee of retired judges is justified, with as many women on it as possible. This is a time at which we acutely miss the presence of more women on the bench.” Karuna Nundy told TNM.

The individual vs the institution

The fact that judges cannot be probed for allegations is problematic. For a long time, the judiciary has been fiercely guarding its independence in an attempt to remain just and impartial, but that has been mostly to protect it from interference from the Executive. However, this time, an allegation against a judge has been called “an attack on the institution.”

Last year, four judges addressing the media was considered unprecedented – it was as if a secret organisation had opened itself to the media and thus had ‘corroded’ itself. Interestingly, the current Chief Justice of India was a part of that press conference.

In this case, however, the Chief Justice of India seems to have forgotten the basis on which he and the other three judges addressed the media last year – that the institution is greater than the individual. There were reports that the judges’ press conference last year was triggered by a controversy over former CJI Dipak Misra presiding over a case he was allegedly linked to – so how is this any different? How was it fair for CJI Ranjan Gogoi to hear a case he is an accused in?

Does that not ‘tarnish the image’ of the judiciary?