Supreme Court should have provided sexual harassment complainant with all help, says former judge

In the story of King Manu Needhi Cholan in Tamil Nadu, it is said that the ruler executed his own son after a cow complained of injustice. The animal lost its calf when it was run over by the prince’s chariot. One, however, wonders what the verdict would have been had the cow complained against the king himself. Would the system have punished the king?

India is faced with a similar question now.

On Monday, an in-house committee, consisting of three Supreme Court judges that probed a complaint of sexual harassment filed by a former junior court assistant against Chief Justice of India Ranjan Gogoi, gave a report whose exact contents are not known.

All we know is that the committee did not find anything against the Chief Justice of India, according to the press release issued by the secretary general of the Supreme Court. In the press release, the secretary general also cited the 2003 Indira Jaising vs Supreme Court of India case – which involved a sexual harassment complaint against a sitting judge of the Karnataka High Court – as a reason for not furnishing the report for public consumption.

Little did the committee realise is that the Indira Jaising case was rendered before the advent of the Right to Information Act, 2005. Just last month, in the Rafale deal proceedings, the Supreme Court held that the Official Secrets Act has to give way to the Right To Information Act.

Even otherwise, the secretary general’s press release did not say whether the complainant will be entitled to be given a copy of the report or not.

The Supreme Court has itself held that the aggrieved party must be handed a copy of the in-house committee report, while delivering a judgment in connection with a 2014 case in which a former Additional District and Sessions Judge levelled sexual harassment allegations against a sitting Madhya Pradesh High Court judge. There too an in-house committee of the High Court investigated the allegations.

In that context, the Supreme Court held as follows:

“This Court in Indira Jaising’s [2003] case declined to entertain the writ petition filed at the behest of a third party, seeking details of the proceedings, and the consequential report prepared by the committee of judges. But, that should not be understood to mean, that an individual concerned, who is called upon to subject himself/herself to the contemplated procedure, should be precluded or prevented from seeking judicial redress.

“We are therefore satisfied to hold, that those who are liable to be affected by the outcome of the “in-house procedure”, have the right to seek judicial redressal, on account of a perceived irregularity. The irregularity may be on account of the violation of the contemplated procedure, or even because of contemplated bias or prejudice. It may be on account of impropriety. The challenge can extend to all subjects on which judicial review can be sought.”

The current case

When the Supreme Court’s in-house committee was set up last month, we were told that it would inquire into the written complaint sent on April 19 by a former female employee of the Supreme Court to 22 judges of the top court.

The complaint should normally have been investigated by an Internal Complaints Committee according to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

It is not anybody’s case that the sexual harassment law does not apply to the judges of the Supreme Court. On the other hand, in 2013, the enquiry into the sexual harassment complaint made against former Supreme Court judge AK Ganguly (he had retired at that time) was held under the regulations framed by the Supreme Court as per the directives contained in the Vishaka judgment. The 2013 law defines sexual harassment as laid down by the court in this judgment.

Internal Complaints Committee

No one knows why an in-house committee was constituted to enquire into the present complaint. Perhaps it was to take advantage of the judicially-laid guidelines found in C Ravichandran Iyer’s case of 1995, wherein such a committee has only a limited brief. It was observed in that case:

“The said Committee shall hold an inquiry into the allegations contained in the complaint. The inquiry shall be in the nature of a fact finding inquiry wherein the Judge concerned would be entitled to appear and have his say. But it would not be a formal judicial inquiry involving the examination and cross-examination of witnesses and representation by lawyers. For conducting the inquiry the Committee shall devise its own procedure consistent with the principles of natural justice.”

In my opinion, the Supreme Court’s three-judge in-house committee, of which two judges were women, can be equated to an Internal Complaints Committee as per the 2013 Act.

When the complainant appeared before this committee, she demanded the assistance of a lawyer to help her in the enquiry and also wanted the proceedings to be video recorded. In order to establish her case, she also wanted the committee to ask telephone service providers for the phone call and WhatsApp records from two phone numbers relevant to her case.

To the shock of any judicial-minded person, the committee rejected all fair requests made by the former female employee.

Under the law, an Internal Complaints Committee has the power of a civil court to summon any record from anyone.

Though, under the Sexual Harassment of Women at Workplace Act, 2013, Parliament obliged an employer to provide all assistance for a complainant to pursue her case, while framing the rules for this law, the Union government prohibited lawyers’ assistance in the Internal Complaints Committee hearings. But the three-judges committee of the Supreme Court was not bound by it as this is only a rule framed by the government.

David vs Goliath

This is a case of a dismissed employee attempting to pursue serious complaints against the head of the judicial family of India. She is a dwarf pitted against a giant. Though normally the assistance of a lawyer in a domestic enquiry is not based upon principles of natural justice, yet often, the courts have directed authorities to provide legal help in such inquiries.

In a different context, however, in the case of junior-level employee pitted against a big movie house, Justice Bhaskaran of the Kerala High Court held that denying a woman the assistance of a lawyer and holding her guilty exparte will shock any judicial mind. He said:

“I am of the view that this principle should apply to domestic enquiries of the nature involved in the present case in order to make it meaningful and purposeful without reducing it to an empty formality or a mere farce, though it could not be considered as an absolute rule for general application to cases of disciplinary proceedings held under statutory rules or enquiries held in industrial concerns having standing orders. In this case, as mentioned at the outset, the fight was between two unequals–the management of a movie house on the one hand, and a poor widow, an uneducated sweeper, employed under it on the other. The petitioner summarily rejected her request for permission to present her case with the assistance of her lawyer in spite of her having specifically stated that she was not a member of any union and that she was an ‘uneducated female’ person. The enquiry officer proceeded with the enquiry without bearing in mind this background and with the impression that there arose a presumption that she was guilty of the charges framed against her on the reasoning that ‘If as a matter of fact she was innocent of the charges, she could have (sic) (been) present at the enquiry and could have explained her position’. It is evident that the enquiry officer took the enquiry merely as a matter of formality.

“…It is unfortunate that the enquiry officer jumped to the conclusion that if, as a matter of fact, the first respondent was innocent of the charges, she could have presented herself at the enquiry to explain her position; it is still more unfortunate that he proceeded with the assumption that there arose a presumption that” she had no answer to the charges, and she was guilty of the charges levelled against her”. The enquiry proved to be a sheer mechanical process without the enquiry officer bothering to ascertain as to anything was to be done lest scale be weighed against her at the enquiry.

“…The above facts and circumstances are sufficient to convince the judicial conscience of the Court to uphold the conclusion reached by the Appellate Authority that the misconduct levelled against the first respondent was not proved in a proper domestic enquiry.”

Such sensitivities were unfortunately lost on the learned judges of the Supreme Court dealing with the former junior court assistant’s complaint. This is in spite of the fact that the committee comprised of two women judges. Further, the media reports state that at least one learned judge of the court, Justice DY Chandrachud, had asked the committee to provide reasonable opportunity to the woman to prosecute her case by allowing a lawyer.

Scope for appeal

It must be noted that under the 2013 sexual harassment law, an appeal against the findings of the internal complaints committee will lie with an appellate authority under Section 18 of the Act.

The Government of India has notified the appellate authority as the Chief Labour Commissioner (Central). If the report given against the former woman employee is treated as an Internal Complaints Committee Report, which I believe it should, she can move the appellate authority under the 2013 Act challenging the ex parte decision.

Otherwise, she also has the option of moving the Delhi High Court under Article 226 of the Constitution, since the in-house committee of the Supreme Court functioned only on the administrative side.

K Chandru is a former judge of the Madras High Court.

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