THE NEED OF THE HOUR :
A SPECIAL LEGISLATION TO DEAL WITH COMPLAINTS OF SEXUAL HARASSMENT OF WOMEN AT WORKPLACE WITH REFERENCE TO THE THREE CONSTITUTIONAL OFFICES OF THE CJI, PMO AND THE RASHTRAPATHI BHAVAN?
The recent complaint of sexual harassment given by a lady who worked in the office of the Chief Justice of India and at his residence in discharge of her official duties, has thrown a huge storm of intellectual debates over the social media and otherwise as well. The plea of the CJI on his loyalty to the judiciary and his details of financial savings thus far and the claim of “the reward' for his prolonged and distinguished career in the judiciary and the pain expressed by him being the Apex judicial officer of the country, being the Chief Justice of India, is understandable. The office of the Chief Justice of India is also undoubtedly one of the pillars of the Constitution of India on par with the office of the Prime Minister and also the office of the President of India. The analogy of the CJI in comparison of his financial discipline and minimum accumulation of wealth by him during his long and distinguished career may not have much to do with the ongoing allegations of sexual harassment alleged by the former female staff of the Supreme Court. The dignity and integrity and the image of the nation's Supreme Court may be personified in the person who heads and leads the Supreme Court and more so it is one of the three highest constitutional offices in India. Therefore, stricter scrutiny and hundred percent protection to the said office if such complaints turn out to be false and intended to entangle and throw mud on the CJI's character and thereby adversely affect his career should not even be probable to be attempted by anyone, is perhaps the larger interest which needs to be focused for the best interest of the justice dispensing institution. Therefore, law by itself protects abundantly the persons of such high offices and an in-depth analysis of the existing laws go on to disclose that the present legislations do not provide a process or procedure if the alleged offender happens to be the Chief Justice of India or the President or the Prime Minister of the country. In fact, no court or judicial system can issue summons to the President of India, the Prime Minister or the Chief Justice of India as they are protected from such legal processes and any authority being subordinate to these three persons in office can only issue a request letter asking them to accept the request and appear and participate in any enquiry before such authority. Nothing can be done in law if the CJI, the Prime Minister or the President of India choose not to appear despite such requests, as their presence cannot be forced or compelled under any law. Though the impact of a false case on such high office, which is a constitutional office as well, can shake the very faith of common men on the judiciary by raising apprehensions such as, “if this can happen to the Chief Justice of India, what is the fate of an ordinary citizen who works at different levels with women employees around him and with him in discharge of his day to day duties?'.
So then, the question arises in every person as to whether the law and the system are inadequate to stem the rot at the inception, or the damage should be faced through a defective system by these ordinary citizens and then the courageous and the mighty should legally take on such complainants who initially portrayed themselves as hapless victims? Is this the only way forward?
Whether there is a distinction or a special privilege for a CJI in such situation, on comparison with any other employer or manager or a person having administrative dominion, supervision and control over his subordinate female employee?
II. To look into these aspects, we will have to necessarily travel through the existing laws, provisions, conflicts, overlaps if any and so on and so forth. To get a fair assessment of the manner in which the system presently works and also as to how the system should ideally work, one should embark on a pretty long journey through various acts, legislations, regulations and guidelines that rule the realm of this particular field of law. The endeavor of the author is to view the incidents of the recent past touching upon the office of the CJI, which indeed has thrown mud on the prestigious and reputed office of the CJI on allegations that are not concerning the discharge of his official duties and in fact, concerning allegations pertaining to personal and individual acts transgressing into the alleged private and personal space of his much subordinate employee, who was allegedly working at his command in his residence, officially at the alleged period according to the contents of the complaint that is now being probed primarily by the panel comprising of 3 sitting judges of the Supreme Court. It is also in public domain that another retired Supreme Court Judge is heading a commission that will look into the conspiracy charges to bring down the office of the CJI as put forth on oath by an Advocate, who practices in the Supreme Court of India.
III. It is only hoped by one and all that the judiciary will also consider the need of the hour to look into the sufferings of a common man who works elsewhere amidst women co-workers who have to go through the ordeal of enquiry, trial, orders/judgments, appeals, etc., even in case of false implication and the inadequacies of the existing laws to provide any compensation or reprieve in time during such distress and the need for them to go through the rigours of the system often losing their jobs, precious family and ruining their health as well. There appears to be no great system that assures any remedy to these true victims of such false cases and the routine theory of a prima facie case and allegations alone matter at the preliminary stage of enquiry, etc., are what he faces during the prolonged legal process commencing from the initial enquiry at the organization before the ICC to the final SLP before the Hon'ble Supreme Court of India.
Whether the need to demit office or be shifted from the existing official position pending enquiry needs to be revisited and a check measure put in place to weed out false complaints at the very nascent stage itself should be considered to protect the dignity of such Respondents who are open to such false implication.
IV. False complaints attack the very institution of judiciary, even though it is directed against the individual who holds the office, is one big argument that is being put forward in defense against the complaint being proceeded under the due process of law and there are so many stumbling blocks for a complainant to travel even for initiating and commencing the due process of law, if the respondent or the person accused of transgression into private domain of a female employee happens to be a judge and in the present case, such allegations have been made against the Chief Justice of India. While all other Chief Justices of the High Courts are designated with specific reference to their respective High Courts and not with reference to their respective states, the Constitution writers back then thought it fit to designate the Chief Justice of the Supreme Court of the country as the Chief Justice of India, without confining the said office to the Supreme Court alone. The office of the CJI, therefore, has to be considered as an elevated constitutional office that is akin to the Office of the President of India and also the Office of the Prime Minister, being the heads of the Judiciary, Executive and the Legislature of our country respectively. The system of elevation and appointment and the extensive period of service and the contribution of such persons who decorate the highest office may not have anything to do with the allegations made in the complaint. Whether false or true is a matter of enquiry for one and all as all are equal before law, according to the Constitution of India. How an enquiry on a complaint has to take place is spelt out by legislation (law), guidelines (from the Supreme Court and High Courts) and Regulations (framed in the present case by the Supreme Court) in consonance with lawful protection, if any, given to the respondent being a Judge, in office or retired as the case may be.
V. THE RELEVANT LAWS
a. The official discharge or acting judicially in the exercise of any power by a Judge has been completely protected under Section 77 of the Indian Penal Code, but the acts should be judicial in nature and done in good faith, which the judge believes to have been given to him by law even according to the said provision of the Indian Penal Code.
b. The Judges (Inquiry) Act, 1968 and the Rules framed there under in the year 1969 explain in detail to the process and procedure to be adopted against the Judges and lays down the scope of investigation into the misbehavior or incapacity of Judge by a committee empowered under the said act and rules, which is a parliamentary committee within the provisions of the said law and the present set of allegations do not constitute the misbehavior or incapacity of a Judge so as to fall within the scope of the said Act and rules and therefore, the complaint made by the female staff cannot be enquired under the said law as well.
c. The Judges Protection Act, 1985 provide for special and additional protection for Judges under Section 3 of the said Act, which imposes a prohibition on all the courts from entertaining or continuing any civil or criminal proceeding against a person who is or was a Judge for any act, thing or word committed/done or spoken by him when or in the course of acting or purporting to act in the discharge of his official or judicial duty or function. Thus there appears to be a specific law granting protection to judges, serving and retired, under the Judges Protection Act, 1985.
d. The Vishaka Guidelines that was suggested by the Hon'ble Supreme Court as an intermediate measure to be strictly complied in its landmark verdict in the year 1997 for the first time provided for a comprehensive policy for Prevention, Prohibition and Redressal of harassment of women from sexual offences at their workplace. The need for a Internal Complaints Committee at every organization employing more than 10 female workers and the establishment of a Local Complaints Committee at every District Collector's Office and the process and procedure for redressal of complaints and punishments were all spelt out by the Apex Court in its much appreciated and welcomed landmark judgment which instilled lot of faith and belief amongst female workers across the country who could courageously approach the authorities to stop such sexual excesses from their superior male officers or co-workers.
e. In September 2013, the then Chief Justice of India had published in the Gazette of India a complete set of regulations that govern such incidents of sexual harassment against women within the precincts of the Supreme Court. The said regulations termed as GENDER SENSITIZATION AND SEXUAL HARASSMENT OF WOMEN AT THE SUPREME COURT OF INDIA (PREVENTION, PROHIBITION AND REDRESSAL) REGULATIONS, 2013 and further in the year 2015, GENDER SENSITIZATION AND SEXUAL HARASSMENT OF WOMEN AT THE SUPREME COURT OF INDIA (PREVENTION, PROHIBITION AND REDRESSAL) GUIDELINES, 2015 also came to be published by the then Chief Justice of India and the same are in force. Notable aspects of these regulations and guidelines are as follows:
Definition of aggrieved woman:
Aggrieved woman means, in relation to the Supreme Court, any female, of any age, whether employed or not, who claims to have been 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 Regulations;
Definition of Respondent:
Respondent means a person against whom the aggrieved woman has made a Complaint under the present Regulations;
Definition of Supreme Court of India precincts:
Supreme Court of India precincts means the whole premises of the Supreme Court including the court block, open grounds, parking, old and new Chamber Blocks, libraries, canteens, bar-rooms, health centers, and/or any other part of the premises under the control of the Hon'ble Chief Justice of India;
Definition of Sexual Harassment:
Sexual Harassment includes any one or more of the following acts or behavior (whether directly or by implication), namely:
i. Physical contact and advances;
ii. A demand or request of sexual favors;
iii. Making sexually coloured remarks;
iv. Showing or exhibiting pornography and/or sexually explicit materials by any means;
v. Sending undesirable sexually coloured oral or written messages, text messages, email messages or any such messages by electronic, manual or other means;
vi. Stalking or consistently following aggrieved women in the Supreme Court precincts and outside;
vii. Voyeurism including overt or tacit observations by the respondent by any means of the aggrieved women in her private moments;
viii. Any conduct whereby the respondent takes advantage of his position and subjects the aggrieved woman to any form of sexual harassment and seeks sexual favours, specially while holding out career advancements, whether explicitly or implicitly, as an incentive or a natural result of submitting to insinuations/demands of the respondent;
ix. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature;
x. Implied or explicit promise of preferential treatment in her legal career;
xi. Implied or explicit threat about her present or future career;
xii. Interferes with her work or creating an intimidating or offensive or hostile work environment for her;
xiii. Any treatment having a sexual colour or content likely to affect her emotional and/or physical health or safety;
Chapter II - Regulation 4(2)
The Chief Justice of India shall, by an order in writing, constitute a committee to be known as the ‘Supreme Court Gender Sensitization and Internal Complaints Committee' (GSICC) which shall consist of not less than 7 members and not more than 13 members and shall include the following …
Chapter III - Regulation 11(1)
Subject to Regulation 9(1) above, the GSICC shall have the power to pass the following orders to secure justice to the victim of sexual harassment:
b) Admonition with publication of such admonition in the Court precincts including cause lists and Supreme Court Website;
c) Prohibition from harassing the victim in any manner including, but not limited to, prohibition from communicating with her in any manner such as phones, messages, electronic means, physical or other means for a specified period; and
d) Subject to Regulation 11(2), pass all orders, directions and/or direct taking steps necessary for putting an end to the sexual harassment of the aggrieved woman;
Chapter III - Regulation 11(2)
GSICC will also have the power to recommend to the Chief Justice of India to pass orders against the respondent including, but not limited to the following:
a) Debarment of entry into the Supreme Court precincts for a specified period extending up to a maximum period of 1 year; and
b) In appropriate cases, to recommend filing of a criminal complaint and/or a disciplinary complaint before the concerned disciplinary authority governing the respondent (including the concerned Bar Council) for taking appropriate action, and the Chief Justice of India may pass orders thereon subject to Regulation 12.
Chapter III - Regulation 11(5)
The orders of the CJI and the GSICC shall be final and binding on the parties.
Any person aggrieved by the order passed (or not passed) by the GSICC under Regulation 11(1) or recommendation made by the GSICC to the Chief Justice of India under Regulation of 11(2), or non-implementation of such orders or action may make a representation to the Chief Justice of India, who shall have the power to set aside or modify the orders passed or the recommendation made as the Chief Justice may deem fit, and also have the power to issue such orders or directions that may be necessary to serve complete justice of sexual harassment.
Chapter IV - Section 19(1)
The provisions of these Regulations shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
From the above, it is not clear as to whether a complaint against the Judge of the Supreme Court is maintainable under the above regulations and guidelines, even though the respondent is defined as “any person…' and it is also doubtful as to whether the formal employee, who at the time of the alleged offence was governed by the Supreme Court Service Rules can be an aggrieved woman within the scope of thee definition extracted hereinabove. Also noteworthy is the wide composition of the GSICC to consist of not less than 7 members and not more than 13 members and shall comprise of:
i. One or two judges of the Supreme Court in terms of the judgment in case of Vishaka, one of whom shall be the chairperson of the committee to be nominated by the Chief Justice of India;
ii. One or two senior members of the Supreme Court Bar, with at least 20 years of membership of the Supreme Court Bar Association or the Supreme Court Advocates On Record Association to be nominated by the Hon'ble Chief Justice of India, one of whom being a woman;
iii. One or two members to be elected by a general ballot of the Supreme Court Bar Association who shall be registered members of the Supreme Court Bar Association for at least 10 years, out of whom at least one shall be a woman;
iv. One woman member being a member of the Advocates on Record Association elected by the general ballot of the Advocates On Record Association;
v. One woman member being a member of the Supreme Court Clerks Association elected by the general ballot of the Supreme Court Clerks Association;
vi. At least one and at the most two outside members to be nominated by the Chief Justice of India;
Persons who are associated with the social welfare department or non-government organization having experience in the field of social justice, women empowerment, and/or gender justice, out of whom at least one member shall be a woman;
vii. One woman officer in the service of the Supreme Court of India, not below the rank of a Deputy Registrar to be nominated by the Hon'ble Chief Justice of India, who shall function as the member secretary of the GSICC and
viii. Any other member that the Chief Justice of India may deem fit to nominate;
Provided that it shall be ensured that the majority of the members of the GSICC shall be women members.
At present, the GSICC comprises of 9 members under the Chairmanship of Hon'ble Justice Mrs. Indu Malhotra and the parameters provided for the composition of the said committee as above is well considered. It is the Chief Justice who is the nominating authority for formation of the GSICC and there are powers with regard to taking of action, either civil or criminal, vested only with the CJI, pursuant to the submission of the report by the GSICC. Thus, the scope of this regulation and guideline promulgated by the Chief Justice of India definitely cannot mean and include the CJI himself to be considered as a respondent. Therefore, it is clear that the regulations and guidelines will not apply to the present set of facts concerning the allegations made by the former female staff as against the CJI himself.
f. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 came into effect in December 2013, immediately after the above mentioned Regulations were notified by the Hon'ble Supreme Court. Under the said act, even the employer's acts amounting to sexual harassment could be complained of by the inferior most worker by preferring the complaint to the Local Complaints Committee (LCC) in the District Collector's Office under Section 6(1) of the said Act, as the Internal Complaints Committee (ICC) is formed and constituted by the employer himself and there is a possibility of the said members being biased towards and in favor of the employer. The ICC is also constituted by considering the following aspects:
Presiding Officer Woman employed at a senior level at the workplace from amongst the employees.
ii. Members - Not less than 2 members from amongst employees - Preferably committed to the cause of women or who have had experience in social work or have legal knowledge.
iii. External member From an NGO or association committed to the cause of women or person familiar with issues relating to sexual harassment.
iv. Not less than half of the IC Members shall be women. The term of the IC Members shall not exceed 3 years.
v. A minimum of 3 Members of the IC including the Presiding Officer are to be present for conducting the inquiry.
vi. The conflict between Supreme Court Regulations (referred hereafter as Regulations) and the Guidelines promulgated (Referred hereafter as the Guidelines) in the year 2013 and 2015 on one hand and The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (referred hereafter as the Act)on the other, appears to be on the following fronts:
a. Whether the GSICC constituted under the Regulation is a substitute for a committee in lieu of the ICC mandated under the Act?
b. Who is the employer under the Regulation synonymous to the employer defined under the Act?
c. If it is the CJI, then will the Act consider him as an employer and can the complainant make a complaint to the District Committee, i.e., the LCC, defined under Section 6(1) of the Act?
d. Whether any respondent includes the Judges of the Supreme Court and the CJI within the ambit and scope of the Regulations?
e. Under the Regulations, it is made clear in Clause 19(1) that the said Regulations are not in derogation, but in addition to the Act. If so, when the Act defines the extent of applicability of the Act as ‘whole of India', then whether the definition of ‘Supreme Court Precincts' has to be mentioned separately under the Regulations?
f. Is there any particular reason as to why the Act cannot be implemented within the Supreme Court Precincts, in the manner provided to under the Act, when the same can be implemented in all other precincts all over India?
g. It can be understood that in September 2013 when the Regulations were first promulgated, the Act was not in place, but it is not known as to why the said Regulation contained certain provisions regarding exclusion of category of persons from the definition of “Aggrieved Woman', so as to restrict it to persons other than those not being governed by the Supreme Court Rules.
h. Under the Act, it is the ICC who will take legal action and process criminal complaints by assisting the aggrieved woman, but under the Regulations, the GSICC has been given only the powers of admonition and making a report and submitting it to the CJI, if they deem fit to proceed further against the respondent in addition to the admonition and it is the CJI who will pass the necessary recommendation for civil and criminal action. Thus, the recommending authority appears to be the CJI (the employer for all practical purposes, if the provisions of the Act are applied).
VII. Thus, there appears to be more flaws and perhaps direct conflict, if not derogation, to the Act in the Regulations promulgated by the Supreme Court in 2013. Hindustan Times reported on 21.04.2019, recalling the panel that was entrusted to provide suggestion to the then Chief Justice of India in the year 2014, in the following words:
“In 2014, a panel of two eminent jurists - senior advocates Fali Nariman and the late PP Rao - called for devising a mechanism to provide redressal to those who levelled sexual harassment allegations against sitting judges. A bench headed by the then CJI P Sathasivam had nominated the two to suggest measures on how to deal with complaints of such nature against sitting and retired judges. Present CJI Gogoi was a part of that bench.
Both found flaws with the Gender Sensitization and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations as they did not extend or apply to either sitting or retired judges of the apex court. The regulations were framed only after a law intern in 2013 charged a retired SC judge with seeking sexual favours. However, the top court has taken no steps to include the recommendations in the regulations nor has it made the disciplinary proceedings by the sexual harassment committee transparent, despite this being a common grievance.
The two also opined that incessant sexual harassment of women at workplace, if established, would amount to “proved misbehavior' which would serve as a grounds for the removal of a judge.
“The shield of irremovability from office would not protect them if a charge of sexual harassment at work place were proved against retired judges of the Supreme Court or the High Court managing judicial tribunals,'the panel had concluded.'
However, nothing much has progressed on this front till now, it appears.
VIII. The recent developments reported in the print and electronic media about the complainant withdrawing her further participation in the enquiry and the enquiry panel comprising of Justice A. Bobde, Justice Indra Banerjee and Justice Indu Malhotra, declaring the enquiry as not one either under the Regulation of the Supreme Court or under the Act and terming it as an informal enquiry and still proceeding with the enquiry as an ex-parte enquiry and issuing request letter for the CJI to depose before the panel, are all not so faith installing measures, so far as ordinary lay persons are concerned. The complainant's claim of she being a hearing impaired person and the denial of assistance or even observers during the in-camera enquiry and non-furnishing of her own statements recorded on the two hearing dates when she appeared before the panel and the refusal to audio/video record the proceedings of enquiry and the claim of she being intimidated, resulting in the only option of she herself withdrawing from further enquiry are matters of concern with regard to the functioning of a judicial process. It is undoubtedly and categorically clear that there exists no law presently in our country to subject the Chief Justice of India or persons holding similar constitutional offices such as the Prime Minister and President of India to any enquiry, even if there is a genuine and true complaint against them and therefore, it appears that there is no legal remedy to seek justice for such aggrieved women, even if she has to go through such an unfortunate incident of sexual harassment if committed by such high officials against her.
To proclaim to the whole world that India is a country that has given birth to extraordinary souls, giving birth to maximum number of religions in the world and also proclaim that it is the strongest and well administered constitution, which is also the largest democracy of the world and still found lacking to have a legal mechanism to redress grievance pertaining to the sexual harassment of women, if complained as against the three constitutional apex authorities of the three limbs of the constitution, is definitely a huge lacuna that should be filled with appropriate legislation in the immediate future. Perhaps, being the custodians of judicial conscience of the entire country, the Hon'ble Supreme Court itself should take steps, particularly in the wake of the present crisis faced by the Chief Justice of India, to suggest to the Parliament to bring in special law governing the field. It could be by way of issuing guidelines initially, to take care of this legal situation until an appropriate legislation is passed by the parliament, by way of establishing an independent and confidential system/authority, so as to complete the entire enquiry in camera within a time frame and until such time, no proceeding be made public and if such authority entrusted with the probe finds it categorically clear that the offence alleged indeed took place and the complaint is genuine, then action to punish even the person who is either the Chief Justice, Prime Minister or even the President of the country is vested with such authority. The Supreme Court can suggest, for the time being, that the authority be vested with a a panel or a board or a committee. It can also suggest the constitution of the said authority to comprise of the last one or two Retd. Supreme Court Judges and include Retd. women judges of the Supreme Court of High Courts, and to ensure the majority of the authority be women, etc., and place such other parameters and ensure that such authority is also vested with the power to order prosecution and trial of such complainants before the sessions or special court within a time frame not exceeding 30 days, if the complaint is found to be false and provide exemplary punishment for the same. The punishment to be prescribed can be a minimum of 10 years imprisonment and a maximum of life imprisonment for motivated filing of false complaints. The availability of such a grievance redressal mechanism coupled with strict prosecution and maximum imprisonment as punishment will definitely act as a deterrent to filing of false complaints and instill faith and complete belief in the judicial system of the country. If need be, the apex court can direct the parliament by giving guidelines to frame a law on these lines specifically restricted to the three constitutional offices of the country and the residence of such persons who occupy the three coveted constitutional posts. A completely confidential preliminary enquiry with absolutely no access to the print and electronic media be held to the fullest satisfaction and with the complete faith of the complainant in the process and the severity of punishment in case of false complaints be widely published to sensitize and prevent the complainants from bringing disrepute to such high offices and persons, shall also be undertaken and appropriate rules framed for the conduct of such a special enquiry, so as to instill confidence in the aggrieved woman are all factors that could be borne in mind while formulating special law exclusively to deal with complaints as against persons occupying these three constitutional posts.