In dealing with a complaint of sexual harassment against the Chief Justice RanjanGogoi, the court has failed to give the complainant a fair hearing. Disregarding the request for a ‘special enquiry committee’, the Supreme Court instead set up an in-house Committee comprising three judges who are junior to the Chief Justice, namely Justice Bobde, and Justice Justices InduMalhotra and Indira Banerjee as additional members. Not surprisingly, on May 6, 2019, it declared that there is “no substance in the allegation contained in the complaint.”

Consequence to that incident the statement titled as “Supreme Injustice”, the women activists’ say that they stand in solidarity with the complainant and that they vehemently reject the findings of the Justice Bobde Committee as same have been arrived at without adherence to norms of fair and independent inquiry. The procedure followed in this case not only stands in utter violation of principles of natural justice, but also in contravention with both, the letter and spirit of Vishakha Judgment and the Sexual Harassment of Women at Workplace Act 2013 (henceforth POSH Act) that seek to recognise and mitigate disbalances of power at the workplace.”

Facts of the Case against CJI:The clean chit given by the Supreme Court in-house panel to the Chief Justice of India in the sexual harassment allegations raised by a former Court employee has attracted a lot of criticism from several persons in legal fraternity.

The complainant woman had refused to participate in the proceedings before the panel of Justices Bobde, InduMalhotra and Indira Banerjee on the ground that several of her concerns, such as denial of assistance by a lawyer, lack of clarity in procedure, demand for video recording of proceedings etc, were not addressed by it.

In a press release, she said that she felt “intimidated and nervous in the presence of three Hon’ble Judges of the Supreme Court and without having a lawyer or support person”.

“I felt I was not likely to get justice from this committee and so I am no longer participating in the 3 Judge Committee proceedings”, the complainant said.

Despite the woman walking out of the enquiry, the panel proceeded ex-parte, and found that there was no substance in the allegations against the CJI.

Fair Trail:The right to a fair trial is a fundamental safeguard to ensure that individuals are protected from unlawful or arbitrary deprivation of their human rights and freedoms, most importantly of the right to liberty and security of person.Fair trial is an integral part of Article 21 of the Constitution and rests on the basic principle of presumption of innocence. Accused also has several pre trial and post trial rights as well that are guaranteed to the accused in the CrPC. Pre-trial rights include the right to have knowledge regarding what one has been accused of, right to a lawyer, opportunity to defend oneself.

POSH Act, 2013:The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is a legislative act in India that seeks to protect women from sexual harassment at their place of work. The Act came into force from 9 December 2013. This statute superseded the Vishakha Guidelines for prevention of sexual harassment introduced by the Supreme Court of India.

Preamble of this Act is An Act to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto.

WHEREAS sexual harassment results in violation of the fundamental rights of a woman to equality under articles 14 and 15 of the Constitution of India and her right to life and to live with dignity under article 21 of the Constitution and right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment;

AND WHEREAS the protection against sexual harassment and the right to work with dignity are universally recognised human rights by international conventions and instruments such as Convention on the Elimination of all Forms of Discrimination against Women, which has been ratified on the 25th June, 1993 by the Government of India;

AND WHEREAS it is expedient to make provisions for giving effect to the said Convention for protection of women against sexual harassment at workplace.

Major Features of POSH Act, 2013 are as follows-

• The Act defines sexual harassment at the work place and creates a mechanism for redressal of complaints. It also provides safeguards against false or malicious charges.

• The Act also covers concepts of ‘quid pro quo harassment’ and ‘hostile work environment’ as forms of sexual harassment if it occurs in connection with an act or behaviour of sexual harassment.
• The definition of “aggrieved woman”, who will get protection under the Act is extremely wide to cover all women, irrespective of her age or employment status, whether in the organised or unorganised sectors, public or private and covers clients, customers and domestic workers as well.
• An employer has been defined as any person who is responsible for management, supervision, and control of the workplace and includes persons who formulate and administer policies of such an organisation under Section 2(g).
• While the “workplace” in the Vishaka Guidelines is confined to the traditional office set-up where there is a clear employer-employee relationship, the Act goes much further to include organisations, department, office, branch unit etc. in the public and private sector, organized and unorganized, hospitals, nursing homes, educational institutions, sports institutes, stadiums, sports complex and any place visited by the employee during the course of employment including the transportation. Even non-traditional workplaces which involve tele-commuting will get covered under this law.
• The Committee is required to complete the inquiry within a time period of 90 days. On completion of the inquiry, the report will be sent to the employer or the District Officer, as the case may be, they are mandated to take action on the report within 60 days.
• Every employer is required to constitute an Internal Complaints Committee at each office or branch with 10 or more employees. The District Officer is required to constitute a Local Complaints Committee at each district, and if required at the block level.
• The Complaints Committees have the powers of civil courts for gathering evidence.
• The Complaints Committees are required to provide for conciliation before initiating an inquiry, if requested by the complainant.
• The inquiry process under the Act should be confidential and the Act lays down a penalty of Rs 5000 on the person who has breached confidentiality.
• The Act requires employers to conduct education and sensitisationprogrammes and develop policies against sexual harassment, among other obligations.
• Penalties have been prescribed for employers. Non-compliance with the provisions of the Act shall be punishable with a fine of up to Rs. 50,000. Repeated violations may lead to higher penalties and cancellation of licence or deregistration to conduct business.
• Government can order an officer to inspect workplace and records related to sexual harassment in any organisation.
• Under the Act, which also covers students in schools and colleges as well as patients in hospitals, employers and local authorities will have to set up grievance committees to investigate all complaints. Employers who fail to comply will be punished with a fine of up to 50,000 rupees.

Indira Jai Sing Vs. Supreme Court of India Case:In Indira Jaising’s case, the report of this inquiry’s will not be available to the public, nor can anyone challenge this in-house inquiry. So, all this has ended in a complete mockery of justice.Senior Advocate Indira Jaising termed the enquiry result a ‘scandal’ and demanded the disclosure of the findings of the enquiry report.She objected to the committee placing reliance on a 2003 decision in Indira Jaisingv Supreme Court of India to state that in-house report need not be made public. Jaising said that the decision had no relevance in the post-RTI era.

Public Reaction to this Development: Former Chief Justice of Delhi High Court Justice A P Shah has commented that he was “extremely disturbed by how this enquiry has been held” and added that the process has ended in a “complete mockery of justice”.

“I am extremely disturbed by how this inquiry has been held. Initially it seemed as though the Supreme Court was looking to remedy the situation brought about by the extraordinary hearing. Ideally the probe should have been conducted by an external committee, but to compensate, the court added two women judges into the committee. But even so, in no sense can this be called an inquiry. And what followed did not help much either”, he said in an interview to Indian Express.

“All that the woman asked for was to be represented by a lawyer or a friend. This was a very basic, and in my view, a reasonable request, coming from someone pitted against three powerful judges of a powerful institution. But this basic minimum right was denied to the woman. What Justice (D Y) Chandrachud now appears to have said in his letter is absolutely correct, when he wrote that the woman should be allowed to be represented by a lawyer or an amicus curiae. I also agree that there ought to have been an external inquiry. There is no other way to ensure that the judiciary can be viewed as an impartial body.

BY Dr. Sailaja. Petikam,