(This is an abridged version of an article originally published in The Leaflet)
The battle of a brave woman judge who says she was sexually harassed by a male sitting judge of Madhya Pradesh High Court, goes on. She has once again approached the Supreme Court of India for her reinstatement on the judicial services.
Her case went to the Judicial Inquiry Committee (JIC) constituted under the Judges Inquiry Act, 1968, (with Supreme Court Justice R Banumathi as chairperson), whose report, submitted to the Chairperson of the Rajya Sabha, held that the case of sexual harassment was not proved, but her transfer from Gwalior to Sidhi – ordered by a Transfer Committee headed by Justice Rajendra Menon – was not lawful.
Today, Justice Rajendra Menon is proposed to be appointed as the Chief Justice of the Delhi High Court. The question, therefore, arises:
Having failed in his administrative duty as a judge, is he still fit to be appointed as the Chief Justice of Delhi High Court? Did the Supreme Court Collegium do its due diligence before recommending his name?
A Questionable Appointment
The proposal to appoint Justice Rajendra Menon, the Chief Justice of the Patna High Court, as the Chief Justice of Delhi High Court, while denying the appointment to Justice Aniruddha Bose of the Calcutta High Court, is alarming and does not seem to be based on empirical data.
The Supreme Court Collegium had earlier recommended on 10 January 2018 the name of Justice Aniruddha Bose for appointment as the Chief Justice of the Delhi High Court. However, Union Law Minister Ravi Shankar Prasad referred back the recommendation to the Collegium for reconsideration on the ground that Justice Bose did not have any experience as a chief justice to handle such a “prominent” high court.
The Collegium accepted the reasons given by the Law Minister and, therefore, decided on 16 July 2018 to withdraw its earlier recommendation, and to recommend Justice Menon for the appointment as Chief Justice of Delhi High Court in place of Justice Bose.
The reason given by the Law Minister for seeking reconsideration on the name of Justice Bose is contrary to precedent. As pointed out in a report published in The Print, there have been quite a few Chief Justices of Delhi High Court who had no experience of being the Chief Justice of any high court before their appointment as the Chief Justice of the Delhi High Court.
In any event, a stigma has been cast on Justice Bose in that he is not considered fit to be the Chief Justice of a “prominent court”. He may be gracious enough to accept the appointment as the Chief Justice of High Court of Jharkhand, which in my opinion is equally “prominent”, given that almost all of India’s mines are located in a radius of 50 kilometres of that court.
But that does not explain why the Collegium changed its mind on the subject and altered its own recommendation dated 10 January 2018. On the other hand, the Collegium approves of the skills — both judicial and administrative — of Justice Rajendra Menon.
As we now know, the administrative role of the Chief Justice as the Master of the Roster is more important perhaps than his or her judicial role, or in any event as important. Hence let us look a little more closely at the proposed appointee to Delhi High Court considered such an important High Court that it needs an “experienced” judge such as Justice Rajendra Menon.
Background of Justice Menon
Justice Rajendra Menon started practising law soon after graduating in law in the year 1981 and was Standing Counsel for the central government from 1991 till his elevation as the judge of the high court in 2002.
He was transferred to the Patna High Court and appointed as Chief Justice there on 15 March 2017. During his posting at Madhya Pradesh High Court, he was associated with several Administrative Committees. He was also Acting Chief Justice of Madhya Pradesh High Court from 13 May 2016 to 14 March 2017.
His biography reads like any other judge — did law, became a government’s standing counsel and soon thereafter became a judge. What it does not tell you is that he was the judge in-charge of the Transfer Committee in Madhya Pradesh, who admittedly took the decision to transfer a woman district court judge. She has now submitted before the Supreme Court that her resignation was a constructive dismissal consequent upon an illegal transfer made by the Transfer Committee headed by Justice Menon.
Violations of Transfer Policy
At the time her transfer was ordered by Justice Menon, the woman judge’s daughter was studying in Class XII and hence was eligible to continue in Gwalior till her daughter finished that year of education (clause 9(a) of the Transfer Policy).
She wrote to the Registrar pleading that she was the part of the family of Indian judiciary, she was ready to obey any orders, but that only for eight months, her transfer be stayed, as she was in a vulnerable stage, her elder daughter was in class XII and her studies would be disrupted completely due to the sudden mid-academic transfer.
The woman judge was transferred to Class C from Class A, Gwalior to Sidhi, a remote Naxalite area, despite clause 16 of the Transfer Policy saying that:
“On transfer, normally, judicial officer (except District Judges, which term here does not include Additional District Judges) will have to go from A to B, from B to C, from C to D, and from D to A or lower category places.”
Justice Menon admitted before the JIC that he had acted on the complaint of District Judge Kamal Singh Thakur without giving the woman judge an opportunity to be heard.
Justice Rajendra Menon had also admitted in his examination by the JIC, to his long-lasting relationship with Justice SK Gangele — the judge accused of sexual harassment. He had also admitted that he had received calls — coincidentally, he wanted us to believe — from Justice SK Gangele, from the day when the transfer committee decided to transfer the judges on deputation to the vacant courts and till time of the rejection of the representations of the woman judge, but said that these calls were related to some administrative work.
When asked whether there were options to the transfer, such as transferring her to a more convenient place which had facilities for the education of her daughter, or extending her tenure till her daughter finished the XII standard, Justice Menon had said that there were options but he did not consider them.
The JIC came to the conclusion after going through the entire evidence relating to transfer of the woman judge — including the calls exchanged between Justice Rajendra Menon and Justice SK Gangele — that the transfer by the transfer committee headed by Justice Rajendra Menon was irregular, unjustified, punitive, and unmindful.
It was also observed that Rajendra Menon transferred the woman judge on the interference of Justice SK Gangele.
A Terrible Nexus
To establish the nexus between the judge accused of sexual harassment and Justice Rajendra Menon, the judge responsible for her transfer, the woman judge had summoned their respective call records between them for the relevant period. Calls were made immediately before and after she had sent her representations to the Committee establishing that Justice Menon was acting at the behest of the accused judge. Here is what the committee had to say about these calls:
“The coincidence of call detail records between the respondent judge and Justice Menon, in time and space, and the rapidity of the events in processing the transfer of the complainant and quick rejection of her representations are suggestive of respondent judge’s interference with the complainant’s transfer and rejection of her representations of the complainant.”
This is an incriminating comment on both the accused judge who interfered with the administration of justice and destroyed the career of a bright woman judge and Justice Rajendra Menon who seems to have acted at the behest of a colleague who was accused of sexual harassment.
Don’t Reward the Guilty
The woman judge in question resigned upon being forced to choose between her duty as a mother to her daughter and her bright career. While the enquiry was in progress, the judge accused of sexual harassment was not suspended from work. Those who gave evidence in favour of accused judge have been adequately rewarded by being made Chief Justice.
Now we will have Justice Rajendra Menon as Chief justice of the High Court which according to the Government is a “prominent” one, where matters of great Constitutional importance are argued and decided.
Justice Aniruddha Bose, who has an unblemished record of service to the judiciary is not “experienced enough”, surely he has no experience of being cross examined at the bar of justice as Justice Menon does, but does that disqualify him from being a Chief Justice of Delhi High Court after being recommended by the Collegium?
It is a great pity that the Collegium did not do its due diligence while withdrawing its own recommendation and accepting objections put forth by the Law Minister. Collegium judges did not have to do much, all they needed to do was to consult their colleague Justice Banumathi, or read the report which is in the public domain..
It is not too late. The Collegium should reconsider its recommendation for the Chief Justice of the High Court of Delhi and insist on its initial recommendation. It is high time the High Court should learn how to treat their own women judges.
To begin with acknowledge that sexual harassment exists in the judiciary, next set up a Vishakha Committee where woman judges can complain of harassment by “brother” judges, and finally learn how to respect woman judges and throw out the guilty.
(Indira Jaising is a senior advocate of the Supreme Court and founder of the legal activism group the Lawyers Collective. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same. This is an abridged version of an article originally published in The Leaflet)
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