A special hearing was convened by the Supreme Court on Saturday, 20 April, over safeguarding the independence of the judiciary following a complaint of sexual harassment against the Chief Justice of India (CJI).
Undoubtedly, the matter required urgent attention but the court hereon has to be cautious not to proceed with the presumption that the complaint is false. It is not whether the allegations are true or false, but the impartiality with which the court proceeds will cement the faith of the people in the judiciary.
The bench, presided over by Chief Justice Ranjan Gogoi, did not issue any specific direction, but the hearing on the judicial side clearly seemed unwarranted. The hearing purportedly for preserving the independence of judiciary was based on the presumption that the complaint was false. Or at least it seemed to be so, with the proceedings maligning the alleged victim and her family members who were not represented.
Justice Must Be Seen to Be Done
Ironically, it was following observations by court in various cases that the Indian Evidence Act, 1872 was amended to ensure that the antecedents and character of a victim is not raised during trials in sexual offence cases.
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The move lacked the sensitivity with which such a case should have been dealt. There is a set procedure for inquiry into complaints of sexual harassment on the administrative side. While the Supreme Court has its own procedure in the case of complaints against judges, the complaints of sexual harassment in workplaces are generally dealt with under the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013.
Thanks to the Supreme Court for the Vishaka guidelines which inspired the law makers to give statutory protection against sexual harassment of women by enacting the law.
There is no reason to treat the complaint differently merely because it involves the CJI. Not following the legal procedure leads to unwarranted fallout. We have already seen the Me Too movement which only reflected the ineffectiveness or lack of faith in the rule of law with victims using social media rather than taking recourse to law.
The independence of judiciary cannot be enforced through judicial orders.
The reputation earned by the judiciary over the years would not suffer on account of inquiry against a judge. But it will surely suffer if complaints against any judge are given an unceremonious burial.
The Supreme Court Cannot Be an Exception
The Sexual Harassment Act of 2013 envisages an inquiry based on principles of natural justice. To ensure that the law is followed the right spirit, it also provides for penalty to employer for not complying with certain provisions of the Act. The law is aimed at instilling confidence in the victim with section 10 allowing settlement through conciliation only at the request of the victim and section 12 enabling the victim to seek transfer of the alleged perpetrator during the pendency of the inquiry.
Further, every organisation having more than 9 employees is mandated to have an internal committee to inquire into complaints of sexual harassment but the complaint does not go to the internal committee if it is against the employer himself, as per the mandate of section 6. The Supreme Court, in this regard, should not stand out as an exception.
The spirit of the Act enacted on the lines of guidelines issued by the Supreme Court in Vishaka case (1997 7 SCC 323) should be followed in this case. The Supreme Court may have shaken the confidence of the complainant by taking up the matter on the judicial side but it should still consider referring the matter to a committee of judges as envisaged under the in-house procedure for inquiry against judges.
Given the fact that the complainant in this case is by an employee of the court against the CJI himself, a high-powered independent committee which should also include retired judges could be considered looking at the spirit of section 6 of the Act. True, there is no precedent which binds the court but such a situation makes the task all the more challenging.
The Supreme Court should consider dealing with the complaint in a manner which inspires confidence not only in the general public but also the complainant. This is the only recipe for preserving the independence of the judiciary which rests on the citadel of faith and trust of the people.
(Gyanant Singh is a Delhi-based lawyer and the views expressed are the author’s own.)
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