Former Chief Justice of India (CJI) TS Thakur in a foreword to a handbook titled Handbook on the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 with the Gender Sensitization & Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition, and Redressal), Regulations, 2013 writes, “The Supreme Court of India has been vigilant in protecting the rights of women by adopting a gender-sensitive approach in consonance with the provisions the Act has framed the Gender Sensitization and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition, and Redressal) Regulations, 2013."
Justice Thakur also pointed out that it was in the Vishakha and Ors vs State of Rajasthan, (1997) case that the Supreme Court laid the guidelines to prevent sexual harassment of women at a workplace that is to be followed by the institutions. It was after 16 years of Vishakha case that these guidelines got statutory status in 2013 by enacting Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013.
This information settles the fact that it was the Supreme Court of India that played the most important role in institutionalising the safeguards for women against sexual harassment at workplace.
The Supreme Court website in the list of committees includes “Supreme Court Gender Sensitisation and Internal Complaints Committee (GSICC)” with Justice Indu Malhotra of the Supreme Court as its chairperson. The apex court also has “Internal Complaints Committee under Section 4 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013”.
Given these facts, the first question that was asked in the wake of allegations of sexual harassment made against the Chief Justice of India (CJI) Ranjan Gogoi (by a former junior court assistant) was: why was the complaint against CJI not referred to this committee, immediately after the allegations were made.
Answer to this question lies in the definition of “aggrieved women” in the Gender Sensitization and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) regulation 2013.
The definition of “aggrieved women” reads, “The gender sensitization and sexual harassment of women at the Supreme Court of India (Prevention, Prohibition and Redressal) regulation 2013 in the definition of “aggrieved women” says, “aggrieved women” means in a relation to the Supreme Court, any female , of any age , whether employed or not , who claims to have subjected to any act of sexual harassment by any person in the Supreme Court of India precincts, but does not include any female who is already governed by the Supreme Court service regulation.”
The fact is that the complainant or the “aggrieved women” in this case is former Supreme Court employee and hence governed by the Supreme Court service regulation. The alleged act of sexual harassment according to complainants’ affidavit took place outside of ‘precincts’ of the Supreme Court. Hence, GSICC had no jurisdiction over this case.
An important question arises here. As judges and employees of Supreme Court are governed by the Supreme Court service regulation they are not under the jurisdiction of GSICC. Then under whose jurisdiction or which act or rule, guides the process of inquiry if there is any allegation of sexual harassment or any other allegation made against them.
Supreme Court advocate Ashok Dhamija tells that there is an in-house procedure that was adopted by the ‘Full Court Meeting’ of the Supreme Court for conducting inquiry into allegations against (i) a Judge of the High Court, or (ii) a Chief Justice of a High Court, or ((iii) a Judge of the Supreme Court.
Dhamija says, “It may be recalled that during the 1990s, the Supreme Court had appointed a committee consisting of three Supreme Court judges, namely, Justice SC Agrawal, Justice AS Anand, and Justice SP Bharucha, and two senior-most Chief Justices of High Courts, namely, Justice PS Misra of the Andhra Pradesh High Court and Justice DP Mohapatra of the Allahabad High Court, to lay down the “in-house procedure”, for taking suitable remedial action against judges, who by their acts of omission or commission, do not follow the accepted values of judicial life, including the ideals expressed by the Supreme Court in the “Restatement of Values of Judicial Life”. This committee submitted its report on 31 October, 1997, and the report was adopted with certain amendments in Full Court Meeting of the Supreme Court held on 12 December, 1999.”
The report in detail lists steps to be taken if a complaint is received against a Supreme Court.
The process to be followed is according to the report is:
- If a complaint is received against the judge of the Supreme Court by the CJI or if such a complaint is forwarded to him by the President of India, the CJI shall first examine it and if it is found by him that it is either frivolous or directly related to the merits of a substantive decision in a judicial matter or does not involve any serious complaint of misconduct or impropriety, he shall file the complaint without any further action.
- In case it is found by him that the complaint is of a serious nature involving misconduct or impropriety, he shall ask for the response thereto of the judge concerned.
- If, on a consideration of the allegations in the light of the response of the judge concerned, the CJI is satisfied that no further action is necessary he shall file the complaint. If, however, he is of the opinion that the matter needs a deeper probe, he would constitute a Committee consisting of three judges of the Supreme Court. The said Committee shall hold an inquiry on the same pattern as the committee constituted to examine the complaint against a judge of a high court and further action on the same lines in the light of the findings of the Committee shall be taken by the CJI.
The report makes an important observation at the end, “The Committee, feels that the In-House Procedure suggested herein will allay the misgivings in certain quarters that the members of the higher judiciary are not accountable for their conduct. At the same time, it will also serve as a safeguard for the members of the higher judiciary from being maligned or being subjected to vilification by false and frivolous complaints. The Committee earnestly hopes that the occasions for invoking the In-House Procedure will seldom arise.”
Now, in this particular case, the complaint is against the CJI himself and the in-house procedure does not dwell on the process to be followed in such a case.
Given this scenario, the Supreme Court with the approval of ‘Full Court decided that its senior-most puisne judge, Justice SA Bobde, will conduct an In-House inquiry into the charges made against the CJI'.
“Justice SA Bobde is the senior--most puisne judge and he will be the next CJI. It was the best option that Supreme Court chose to entrust him with the task of investigating the allegations against CJI Gogoi,” says Dhamija.
It was in these circumstances and following the rules, that a committee of Justice SA Bobde, Justice NV Ramana and Justice Indira Banerjee was constituted to investigate the matter. However, on 25 April, Justice Ramana recused himself and was replaced by Justice Indu Malhotra.
Given these facts, it can be said that apart from the criticism of CJI Gogoi’s decision to constitute a bench to deny charges made against him, the formation of an in-house committee, the appointment of Justice SA Bobde to head it, had all been done following the established procedures.
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Updated Date: Apr 26, 2019 15:04:06 IST