“Illusive Justice” for sexual harassment complaints in the Supreme Court, will there be a course correction?

Image: Live Law

Throughout the last decade there have been number of sexual harassment complaints filed by survivors against the judiciary even at the level of the Indian Supreme Court. But to date, there are no definite provisions or guidelines on how to deal with such complaints. The highest ever destination for justice, appears itself to be deluding justice to the survivors.

It was in 1997 that the Supreme Court laid down guidelines to deal with prohibition, prevention, and redressal of sexual harassment at workplaces, the famed Vishakha judgement, when itself, surely it could have included itself as one such workplace.[1]

All legislation in India, which deal with violence against women are the outcome of long drawn struggles for justice, by individual women, primarily from marginalised sections of society. These struggles have gathered solidarity and support from various women’s organisations and activists over the decades. These laws then, have been outcome of these struggles and campaigns. The 1997 guidelines known as “Vishakha Guidelines” have been the outcome of an extraordinary struggle by a rural government worker, supported by numerous organisations and activists.

In September 1992, a government employee at a women’s development project in Rajasthan, in her line of duty, was sexually assaulted by five men of the village. The violent assault was a lesson to be taught to her since she had halted a child marriage. Police inaction and political pressure led to the acquittal of the accused.[2] There were large-scale protests by various activists and women’s organization, who stood up in her support and filed a public interest petition in Supreme Court. This led to the landmark Supreme Court judgement in 1997, which formulated guidelines to protect women from sexual harassment in workplaces, those were the abovementioned, widely known “Vishakha Guidelines”. This was followed by The Sexual Harassment of Women at the Workplace (Prevention, Prohibition, and Redressal) Act and Rules 2013.[3]

But applying these guidelines to complaints within the Judiciary has been an uphill battle.

Courts as workplaces

In November 2013, a young lawyer in a blog post[4] stated that she had been sexually harassed by a (now retired) Supreme Court judge, Justice Ganguly, in the previous year. The news shocked the legal fraternity as well as civil society. As a result, the Supreme Court constituted a three-judge committee, which submitted its report on  November 28, 2013. [5] This report never saw light of the day.

Emboldened by the complaint filed by this young lawyer, another graduate of NUJS Kolkata in January 2014, alleged that she was sexually harassed by a then-sitting Supreme Court judge in 2011[6].  In 2013, the survivor, even swore an affidavit detailing the sexual harassment she was subjected to by Justice Swatantra Kumar. [7] But on December 5, 2013, Supreme Court after a full court meeting came out with a notice, absolving itself of any responsibilities towards the harassment caused by these retired, but at-the-time-sitting judges.

The notice stated, “As decided by the full court in its meeting dated December 5, 2013, it is made clear that the representations made against former judges of this court are not entertainable by the administration of the Supreme Court,”[8] Appealing against the notice, on January 2014, the NUJS graduate filed a petition dealing with lack of mechanism to enquire into the complaints of sexual harassment against all judicial officers, sitting or retired judges, whether while holding office or not.

After eight long years, the Supreme Court will now hear this plea seeking framing of guidelines on how to handle complaints of sexual harassment against sitting/retired judges on November 15, 2022.

During these long pending years, survivors of sexual harassment by the judiciary have faced a tough and uphill battle. One Additional District and Sessions Judge (ADJ) of Madhya Pradesh complained of sexual harassment by a Judge on July 3, 2013, In response she was transferred from Gwalior to Sidhi on July 7, 2014. On July 9 and 14, the ADJ made representations against the transfer, since both the representations were rejected, she was left with no other alternative but to resign (Due to her daughter’s education she could not accept the transfer).

She continued with her complaint and on December 15, 2017, a three-member Judges Inquiry Committee [JIC] was set up by the Chairperson of the Rajya Sabha, to probe into charges of sexual harassment as alleged by the woman judge against the then judge of Madhya Pradesh High Court Justice S. K. Gangele. In its 135-page report the committee found, that the woman judge’s transfer from Gwalior district to Sidhi district was punitive.[9]

Eventually in February 2022, the supreme Court directed the Madhya Pradesh High Court to reinstate,forthwith, the woman Additional District Judge (ADJ) who had resigned from service in 2014 alleging sexual harassment by a High Court judge.[10]

The worst was yet to come.

On April 2019, A 35-year-old woman who used to work as a junior court assistant at the Supreme Court of India wrote to 22 judges of the court alleging that Chief Justice of India, Ranjan Gogoi had made sexual advances on her at his residence in October 2018.[11]

In her letter to the judges, she describes the victimisation she and her family suffered after she rebuffed the Chief Justice of India. She was terminated from service in December 2018. Her relatives who were employed in police department were suspended in December 2018. There was a criminal complaint of cheating filed against her and her entire family was detained in the police station.

On January 11, she was forced to apologise to the wife of Justice Gogoi in the most humiliating manner. Later her relative employed in Supreme Court as attendant was also terminated.

She had no alternative but to address the Judges outlining the entire situation.

Travesty of Justice: In the highest court of a democratic country The next day on a Saturday, April 20,  2019, the Supreme Court called a special hearing, through a bench consisting of two Judges besides the Chief Justice of India, against whom the allegation of sexual harassment was made. With no notice given to the aggrieved woman, CJI not only declared the allegations false but further stated that these allegations threaten independence of judiciary.[12]

This was a shocking breach of procedure, wherein the person against whom the allegations were leveled, was in fact presiding over the ex-parte hearing. Through this hearing the Supreme Court acted in no way different from the many accused powerful men who resort to maligning the complainant by citing past histories and by imputing ulterior motives.

After much public protest, an in-house Committee was formed of three judges of Supreme Court. [13] The constitution of this committee itself was in contravention of the spirit of the 2013 POSH Act and the guidelines laid down by the Supreme Court itself in the Vishakha Judgment of 1997. The committee in violation of these guideline, neither had any external member nor was it headed by a woman. In spite of this the complainant participated hoping to get a fair hearing.

When this committee started the hearing, it denied to the aggrieved woman, the right to be represented by a legal person of her choice, completely ignoring the unequal balance of power not only between the parties, but also between the complainant and the Committee itself. The committee did not follow laid down procedure by law, proceeded ex-parte and on May 6, 2019, concluded that “no substance in the allegation contained in the complaint”[14]

Women’s organisations, as well as numerous activists, lawyers wrote number of open letters [15] to Supreme Court judges demanding that proper procedure as laid down by the Supreme Court itself be followed. There were numerous protests outside the Supreme Court.[16] [17][18][19]

There was a continuing, deafening silence from the judiciary.

Justice was not only denied, but the highest court indulged in violation of its own orders in favour of its brotherhood, making a mockery of law of the country.

The struggle of survivors against sexual harassment continues.

Now, on November 15, the Supreme Court will hear the plea seeking framing of guidelines on how to handle complaints of sexual harassment against sitting/retired judges. It remains to seen if the Supreme Court will abide by its own guidelines, establish proper procedure which will guarantee justice to the survivors of sexual harassment within and by the judiciary and through this, regain the lost trust of women and society in general.

The writer is a feminist and activist  from the women’s and civil liberties movement