Sexual harassment allegations against CJI: SC in a spot for excluding itself from POSH, prioritising on in-house procedure

It was the guidelines framed by the Supreme Court in the landmark Vishaka and Ors and State of Rajasthan case that made Parliament enact Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, widely known as POSH Act. Former Supreme Court judge Justice R Banumathi while highlighting the significance of the Act in the handbook of the POSH Act writes, “Sexual harassment at workplace is form of gender specific violence against women” and the POSH Act “mandates the employer to ensure a safe working environment” by “prioritizing workplace safety; displaying the penal consequences of sexual harassment, constitution of the internal committee and organizing awareness programmes”. [caption id=“attachment_6075511” align=“alignleft” width=“380”]  File image of the Supreme Court of India. PTI[/caption] Ironically, with the stoke of a definition of the “aggrieved women” in the POSH Act that the Supreme Court adopted, it excluded itself from this Act. Gender Sensitization and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) regulation 2013 in its definition of “aggrieved women” clearly states that it “does not include any female who is already governed by the Supreme Court service regulation”. Thus all employees of the Supreme Court are beyond the jurisdiction of the POSH Act. In absence of the POSH Act, any sexual harassment allegations against the judges of the high courts and Supreme Court can be dealt only by a committee that draws its mandate from the in-house procedure that was adopted by the apex court in 1999. This makes it amply clear that there is no “dedicated committee” to investigate allegations of sexual harassment against judges of the high courts and Supreme Court. Now, when the Supreme Court is reeling under immense criticism of “mishandling” the sexual harassment allegations against Chief Justice of India (CJI) Ranjan Gogoi, it is pertinent to ask why the apex court’s decision to exclude itself from the Act, which was the result of its own guidelines, was not called out. Gender Sensitization and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) regulation 2013 defines the composition of Gender Sensitization and Internal Complaints Committee (GSICC) which can have minimum seven members and maximum 13 members. It can include: (1) One of two judges of the Supreme Court. (2) One or two members of Supreme Court Bar with at least 20 years of membership of the Supreme Court Bar Association or Supreme Court Advocates-on-Records Association nominated by CJI. (3) One or two members to be elected by General Ballot of the Supreme Court Bar Association who shall be registered member of Supreme Court Bar Association for at least ten years. (4) One women member from Supreme Court Advocates-on-Records Association. (5) One woman member from the Supreme Court Clerks Association. (6) One or at the most two outside members who are associated with the Social Welfare Department and or a Non-Governmental Organization having experience in the field of social justice, women empowerment and gender justice. (7) One woman officer in the service of the Supreme Court of India not below the rank of the deputy registrar. The fact that GSICC has provision for having members of the Supreme Court Bar Association, members of Supreme Court Clerks Association, members elected by ballot, apart from the outside member, makes it inclusive and raises the confidence of the complainant in its fairness. On the other hand, the in-house committee that is probing the allegations against CJI under the in-house procedure is constituted of three Supreme Court judges only. The presence of any outsider member like an eminent jurist would have only helped in raising the confidence of the complainant in its fairness. However, here again, the Supreme Court gave itself an exception by ensuring that no one else other than the judges themselves can have any say in a probe involving any sort of allegations against the judges of the high court and the Supreme Court. This privileged exclusion and immunity from any sort of outside checks have been the main criticism of higher judiciary in several regards. This the reason why the in-house procedure for an inquiry into complaints against the Supreme Court and high court judges cannot accommodate the concern of a complainant of sexual harassment is obvious. The in-house procedure was devised and adapted to look at any kind of allegations against the judges. Reading of the report on in-house procedure makes it amply clear that the committee is over-defensive against “frivolous complaints” since the beginning.  It states, “Complaints are often received containing allegations against the Judge pertaining to the discharge of his judicial functions. Sometimes complaints are received with regard to the conduct and behaviour of the Judge outside the court. The complaints are generally made by a party to the proceedings who feels dissatisfied with the adverse order passed by the Judge or by persons having a personal grudge against the Judge. Most of these complaints are found to be false and frivolous.” However, while adding that there may be complaints which cannot be regarded as baseless and may require a deeper probe, it stresses more on the need to ensure “the independence of judiciary”. It says, “A complaint casting reflection on the independence and integrity of a Judge is bound to have a prejudicial effect on the image of the higher judiciary of which the Judge is an honored member”. Stating the purpose of the committee, the in-house procedure states, “Such a procedure would serve a dual purpose. In the first place, the allegations against a Judge would be examined by his peers and not by an outside agency and thereby the independence of the judiciary would be maintained. Secondly, the awareness that there exists machinery for the examination of complaints against a Judge would preserve the faith of the people in the independence and impartiality of the judicial process.” The Vishaka guidelines that resulted in Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 was meant to have dedicated mechanism to deal with allegations of sexual harassment at the workplace. The decision to exclude itself from this Act is what has come back to haunt the apex court in the current case involving the CJI.