Sexual Harassment- Justice Ganguly and the intern

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Sexual Harassment PIL – India- A Legal story

GENDER SENSITIZATION IN THE JUDICIARY

Writ Petition No. 15 of 2014  (X v. Secretary General , Supreme Court of India) filed in Public Interest

The Legal Background

The Supreme Court of India has laid down comprehensive guidelines in Vishaka v. State of Rajasthan, (1997) 6 SCC 241 to address sexual harassment in workplace. These include casting a duty upon the employer:

(i)               To take steps to prevent sexual harassment of female employees in workplace

(ii)            To set up a Complainants Committee/grievance redressal mechanism to address cases of sexual harassment

(iii)           To initiate criminal proceedings on behalf  the employee who is a victim of sexual harassment

(iv)          To initiate disciplinary action against the employee found to be the perpetrator of sexual harassment

(v)             To spread awareness among its employees

(vi)          To assist the employee who is a victim of third party harassment

The Court declared the directions to be binding and enforceable in law until suitable legislation is enacted to occupy the field.

Till November 2013, there was no proper mechanism to address cases of sexual harassment in the precincts of the Supreme Court of India. In the last week of November the Chief Justice of India constituted a 10-member committee headed by a woman judge, Justice Ranjana Prakash Desai, to deal with complaints of sexual harassment within its precincts named “Supreme Court Gender Sensitisation and Internal Complaints Committee” (GSICC).

However there was no clear mandate given to this Committee to entertain complaints of sexual harassment against former and sitting judges.

On the 12th of November, 2013 – based on news report of sexual harassment alleged by a law intern against a former judge of the Supreme Court of India (Mr. Justice Retd. A.K Ganguly)  the Chief Justice of India constituted a 3 Judge Committee (comprising of Mr. Justice R.M Lodha, Mr. Justice H.L Dattu and Ms. Justice Ranjana Prakash Desai) to ascertain the truth of these allegations. Although the 3 Judge Committee found a prima facie case of sexual harassment made out against the former Judge, considering the fact that the law intern was not on the roll of the Supreme Court and that the alleged perpetrator has retired as a Judge, no follow up action was taken.

On the 5th of December 2013, the Full Court of the Supreme Court of India on its administrative side, decided that complaints/representations of sexual harassment made against former Judges of the Supreme Court of India are not entertainable by the Supreme Court Administration.

 

Brief Facts of the case

On the 2nd of December 2013, another law intern ‘X’ alleged sexual harassment by a former Judge of the Supreme Court in the year 2011 when she was assigned summer internship under him (then a sitting Judge) by her law school.

On 13th of December 2013 the Secretary General, Supreme Court of India returned X’s complaint informing her that in light of the Full Court resolution dated 05.12.2013 her complaint would not be entertained.

Aggrieved by the rejection of her complaint and the Resolution of the full Court dated 05.12.2013 ‘X’ approached Ms. Vrinda Grover, Advocate and activist who in turn requested me to file a writ petition in public interest before the Supreme Court of India seeking the following reliefs inter alia :

  1. Quashing of the Resolution dated 05.12.2013 passed by the Full Court of the Supreme Court on its Administrative Side
  2. Quashing of letter dated 13.12.2013 issued by the Secretary General, Supreme Court of India returning the complaint of sexual harassment made by ‘X’ against a former Judge of the Supreme Court during her summer internship in the Supreme Court.
  3. Setting up of a permanent mechanism to enquire into the complaints of sexual harassment against all judicial officers, sitting or retired judges, whether while holding office or not.

The writ petition in public interest was filed by me at 10:30 am on 13.01.2014 and mentioned straightaway by Mr. Harish N. Salve (Senior Advocate) before the Chief Justice of India who posted the case for hearing on 15.01.2014 – 14th January being a holiday.

Historic Order

15.01.2014 turned a truly historic moment in the history of the Supreme Court of India, when the 3 Judge Bench headed by the Chief Justice of India admitted the petition filed by ‘X’ in public interest and issued notices to its own self, the Union of India and the Former Judge of the Supreme Court against whom the allegation was made. In addition the Court issued notice to the Attorney General and sought the assistance of Mr. Fali S. Nariman and Mr. P.P Rao (Senior Advocate) as amicus curie (friend of the Court).

The next date of hearing is 14.02.2014- Valentine’s day.

The Way Ahead

The Supreme Court has recognized the importance of high moral and ethical standards of a Judge. The observations made by it in C. Ravichandran Iyer v. Justice A.M. Bhattacharjee, (1995) 5 SCC 457, at page 474 paragraphs 21, 23 and 26 are apt in this regard:

“Judicial office is essentially a public trust. Society is, therefore, entitled to expect that a Judge must be a man of high integrity, honesty and required to have moral vigour, ethical firmness and impervious to corrupt or venial influences. He is required to keep most exacting standards of propriety in judicial conduct. Any conduct which tends to undermine public confidence in the integrity and impartiality of the court would be deleterious to the efficacy of judicial process. Society, therefore, expects higher standards of conduct and rectitude from a Judge. Unwritten code of conduct is writ large for judicial officers to emulate and imbibe high moral or ethical standards expected of a higher judicial functionary, as wholesome standard of conduct which would generate public confidence, accord dignity to the judicial office and enhance public image, not only of the Judge but the court itself. It is, therefore, a basic requirement that a Judge’s official and personal conduct be free from impropriety; the same must be in tune with the highest standard of propriety and probity. The standard of conduct is higher than that expected of a layman and also higher than that expected of an advocate. In fact, even his private life must adhere to high standards of probity and propriety, higher than those deemed acceptable for others. Therefore, the Judge can ill-afford to seek shelter from the fallen standard in the society…

23. To keep the stream of justice clean and pure, the Judge must be endowed with sterling character, impeccable integrity and upright behaviour. Erosion thereof would undermine the efficacy of the rule of law and the working of the Constitution itself. The Judges of higher echelons, therefore, should not be mere men of clay with all the frailties and foibles, human failings and weak character which may be found in those in other walks of life. They should be men of fighting faith with tough fibre not susceptible to any pressure, economic, political or of any sort. The actual as well as the apparent independence of judiciary would be transparent only when the office-holders endow those qualities which would operate as impregnable fortress against surreptitious attempts to undermine the independence of the judiciary. In short, the behaviour of the Judge is the bastion for the people to reap the fruits of the democracy, liberty and justice and the antithesis rocks the bottom of the rule of law.

26. Bad conduct or bad behaviour of a Judge, therefore, needs correction to prevent erosion of public confidence in the efficacy of judicial process or dignity of the institution or credibility to the judicial office held by the obstinate Judge. When the Judge cannot be removed by impeachment process for such conduct but generates widespread feeling of dissatisfaction among the general public, the question would be who would stamp out the rot and judge the Judge or who would impress upon the Judge either to desist from repetition or to demit the office in grace? Who would be the appropriate authority? Who would be the principal mover in that behalf? The hiatus between bad behaviour and impeachable misbehaviour needs to be filled in to stem erosion of public confidence in the efficacy of judicial process.”

This writ petition in public interest shall serve as a clarion call to the judges of the Supreme Court, the High Courts, Tribunals and quasi judicial bodies performing judicial function and will herald a new era of judicial activism with the Supreme Court putting the Judiciary in order by promoting gender sensitization within the precincts of every judicial office of this Country including itself.

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