Important To Follow Established Principles Governing Sexual Harassment Inquiries, Say Women Lawyers

Since the events of 20th April, where the Chief Justice of India responded to sexual harassment allegations against himself by speaking from the Bench after instituting a suo moto writ petition, several developments have occurred at the Supreme Court, including the setting up of a three-member committee by Justice Bobde (the second senior-most judge) comprising of himself, Justice N. V. Ramana (the third senior-most judge) and Justice Indira Banerjee, to conduct an inquiry into the complaint. Recent news reports state that Justice N. V. Ramana has recused himself from the committee necessitating its reconstitution. The complainant has also written to the panel asking for its reconstitution. As this process is underway, we invite the Court to deliberate about the principles that should govern the composition and working of the committee. The Court must follow its own principles laid down in Vishaka and Ors. v. State of Rajasthan and Ors., [1997 6 SCC 241] and now incorporated in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ("POSH Act") while framing the ad-hoc procedure in the present case.

Setting the standard for all

The present case is unprecedented in that it is the first time in the history of the Supreme Court that a complaint of sexual harassment has been filed against a sitting Chief Justice of India. It is important that the procedure followed in this case is carefully deliberated upon to ensure that it is a procedure that is fair, just, and reasonable. All eyes are on the Court at this juncture and it is crucial that the manner in which the present complaint is dealt with empowers and encourages any other person who has experienced sexual harassment at the workplace to have the courage to speak out and demand accountability. The arrival of the #MeToo movement in India included several instances of social media accounts of sexual harassment which sparked debate about the relevance and necessity of formal inquiries in cases of sexual harassment. The handling of this present case, therefore, is in continuation of that conversation, and must give faith to all people of this country that formal institutions have the ability to fairly adjudicate complaints while upholding the dignity of all concerned.

A. Mandate of the Committee: What law?

1. Is the inquiry under the In-House Procedure?

In the case of sexual harassment allegations against a sitting judge of the MP High Court, the Supreme Court in 2014 held that the "In-House Procedure" can govern the inquiry process (Addl. District & Sessions Judge 'X' v. High Court of M.P (2015) 4 SCC 91). The 'In-House Procedure' is specifically designed to deal with charges of misconduct against sitting judges of the Court. It requires the Chief Justice of India to constitute a three-member panel of Supreme Court judges to enquire into a complaint of misconduct received by the CJI against a sitting judge. The CJI is further tasked with supervising and enforcing the outcome of this inquiry. The procedure, however, does not expressly provide for a mechanism to constitute a committee when the complaint is against the CJI himself. It may be argued that the CJI is still governed by the 'In-House Procedure' by virtue of being a judge of the Supreme Court. However, for an inquiry against the CJI, an ad-hoc authority will need to be notified to supervise and take action upon the results of the inquiry. In Addl. District & Sessions Judge 'X' v. High Court of M.P, the Supreme Court also held that the inquiry procedure can be moulded in "the facts and circumstances of a given case, to ensure that the investigative process affords safeguards, against favoritism, prejudice or bias." Therefore, the constitution and procedure, even under the In-House Procedure can be and would need to be significantly altered by following an ad-hoc procedure in the present case to address the unique fact of an inquiry against the CJI himself.

2. Is the inquiry under the POSH Act and the 2013 Regulations?

The POSH Act and the Gender Sensitisation & Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal), Regulations, 2013 ("2013 Regulations") do not expressly exclude judges of the Supreme Court from its ambit. Given that the nature of remedies under the Act and the Regulations are varied and not limited to seeking removal from office, the jurisdiction under the Act and Regulations is not necessarily precluded by Article 124 of the Constitution (which requires an elaborate procedure and vote by Parliament for impeachment of a judge). However, under the 2013 Regulations, the CJI has overall supervision and control over the GSICC including:

● Nomination and appointment of members of the GSICC is by CJI

● Recommendation of the ICC after an inquiry will be submitted to the CJI, and the CJI has the power to accept or reject the recommendation

Hence, even the POSH Act and 2013 Regulations will require an ad-hoc authority to supervise and procedure to be devised in the present case. It is further important to note that the present complaint has not been filed under the 2013 Regulations and hence the jurisdiction of the GSICC has not been triggered.

3. Ad-Hoc Committee?

Given that neither the In-House Procedure nor the 2013 Regulations expressly apply to the present case, the Supreme Court has to evolve an ad-hoc committee and procedure for the present case. The procedure should endeavour to follow established and accepted principles for departmental inquiries into sexual harassment. The powers and procedure of this Committee should be placed in advance before a Full Court for its consideration.

B. What Composition?

The composition of this committee should reflect the principles of the In-House Procedure as well as the POSH Act read with the 2013 Regulations:

1) Women Chairperson and majority of members to be Women: [Section 4 of the POSH Act; Reg. 4 and 9 of the 2013 Regulations]

Sexual harassment in the workplace often involves skewed power dynamics where the aggrieved person can face considerable hostility and risks when filing a complaint. In some cases, a woman can experience fear and anxiety due to continued victimisation and trauma. The presence of a majority of women on a panel is meant to help create a facilitative and safe environment for the aggrieved woman to recount her experience. The present complainant is not in an equal position as that of the respondent CJI. Given this deep imbalance in the power of the complainant and respondent, it is imperative that this established principle in sexual harassment adjudication be followed in the interest of arriving at the truth by ensuring that both parties are in a free and non-intimidating environment.

2) Presence of an external neutral member with experience in the field of fighting sexual harassment [Section 4(2)(c) of the POSH Act read with Reg. 4 and 9 of the 2013 Regulations].

Since the inquiry of sexual harassment is conducted within the organisation itself, the rationale behind having an external member is to prevent the possibility of any undue pressure or influence from senior levels and ensuring a safe environment for the complainant and her witnesses. Strict adherence to this requirement has been upheld by various High Courts. The Bombay High Court in Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University, Bombay High Court [2014 SCC OnLine Bom 814] held that an ICC without the presence of an external member (either dedicated to the cause of women or having experience in social work or have legal knowledge related to sexual harassment) would be illegal and contrary to the provisions of the POSH Act.

3) Members should be free from any bias, prejudice or influence of either the complainant or the respondent.

It is a settled canon of administrative law that a prior relationship between the adjudicating authority and one of the parties leads to an "apprehension of bias" and would vitiate any proceeding. The Supreme Court has on numerous occasions held that even in the absence of proof of bias, reasonable apprehension is sufficient to quash proceedings. The presence of only sitting judges on the present committee raises a legitimate apprehension of bias given the close interaction required between puisne judges and the CJI in the day to day functioning of the Supreme Court. Despite the fact that the CJI is a first among equals, the sitting judges that form part of the present Committee function under the administrative supervision of CJI. In light of this serious concern, the present case ought to be inquired into by retired justices as well as external members of civil society. Various High Courts have invalidated ICCs on the ground of perceived bias. For example, in M. Rajendran v. Daisyrani and Others [(2018) 3 MLJ 84], an inquiry by an ICC was held to be vitiated by bias on the ground that the ICC (other than the external member) comprised of members who were the subordinates of the respondent and functioning under his control.

It is pertinent to point out that the Court has today directed that the allegations of conspiracy to frame the CJI as part of a larger money for judgements scam brought to light by Advocate Utsav Bains be inquired into by a retired judge of the Supreme Court, Justice A K Patnaik. A similar standard should be applied when inquiring into the sexual harassment case by assigning the inquiry to external, neutral parties.

4) Respondent to abstain from work

Guideline 4 of the Vishaka guidelines requires steps to be taken to ensure that the aggrieved woman is not further victimized during inquiry through "the option to seek transfer of the perpetrator or their own transfer." Similarly in Addl. District & Sessions Judge 'X' v. High Court of M.P. (supra) the Supreme Court observed that "in order to ensure that the investigative process is fair and just, it is imperative to divest the Judge concerned (against whom allegations have been levelled), of his administrative and supervisory authority and control over witnesses." Considering that the witnesses to be called by the complainant may include employees of the Supreme Court and in the absence of other checks and balances over the inquiry committee, spirit of the aforesaid guideline would require that the Respondent abstain from work on the administrative side during the pendency of the inquiry so as to prevent any apprehension of bias. The committee should contemplate whether in the event that a prima facie case is made out, a temporary and time bound abstention from all work is required at a given stage of the inquiry in light of the overarching principle of fairness of the process in the facts of the case.

C. What procedural rules?

A letter from the complainant has indicated that the inquiry committee has not communicated its mandate, procedure, rules or the time frame within which it will conduct this inquiry. This raises several fundamental concerns for fairness of trial:

1) How are either parties to prepare their case without any knowledge of the rules of procedure, or evidence that will apply in the present case?

2) How does the complainant prepare her case without understanding what must be proved and the manner in which it is to be proved? What standard of proof will apply to this inquiry? How is the complainant to know whether she can bring witnesses and the manner in which their evidence is to be presented?

3) Will the parties be entitled to legal representation? In the absence of a lawyer, the complainant, who is not a trained lawyer, will not be equally placed as that of the respondent, who is a sharp and seasoned legal mind. Will a presenting officer be appointed to prove the case?

4) Has a memorandum of charge be framed against the respondent as is required under departmental inquiry rules followed in inquiries of all other public servants? Will the defence (the respondent) have a right of cross examination and how does he prepare for this without having the case against him set out in the form of formal charges?

5) How will the proceedings be recorded? The complainant has specifically requested for the proceedings to be video-recorded so that there is an objective account of the record of proceedings. This is provided for in the Gender Sensitization and Sexual Harassment of Women at Supreme Court (Prevention, Prohibition and Redressal), Regulations 2015. In Punita K. Sodhi (Dr.) v. Union of India and Ors. [(2010) 172 DLT 409], the Delhi High Court deprecated the ICC wherein no detailed minutes were prepared and attendance register was not maintained. Given the huge differential in power dynamic between the parties, the complainant should have the right to obtain a detailed and accurate reporting of events to alleviate her apprehension of bias.

6) A complainant in a sexual harassment case is also usually placed in communication with a support person who explains the process, keeps the complainant informed of the proceedings and ensure that she does not face any intimidation. Presenting one's case to a panel of Supreme Court judges is daunting for the most seasoned of lawyers, and without having any legal background, the complainant will be disproportionately disadvantaged if she has to present her case on her own.

7) What protection is available to complainants of sexual harassment? The allegations in the complaint include persecution of the complainant and her family through the police machinery and otherwise. The procedure must ensure that the complainant is able to proceed with her complaint without fear of misuse of such powers. In this light, it may be mentioned that the question of a counter FIR in the context of a complaint of sexual harassment was considered by this Hon'ble Court in Afsan Pracha v. Union of India, [Writ Petition Crl. No. 113/2018]. By order dated 11.05.2018, the Hon'ble Court had allowed investigation under both FIRs to proceed, but considering the circumstances, directed that neither party shall be arrested. The Court also considered directions against interference with the process of inquiry. The committee must therefore consider the question of interim orders for adequate protection to the complainant during the course of the inquiry.

8) What rules of evidence will apply to allow or exclude evidence? Certain allegations have been made in parallel proceedings that the allegations of the complainant are false, mala fide and were an attempt to destabilise the office of the CJI. While we fully respect the gravity of these allegations, and understand the need to have an impartial investigation into the same, it cannot be denied that those proceedings (in so far as they pertain to the allegations of the complainant) are directly linked with the present matter. However, the Supreme Court in its order dated 24.04.2019 in "In Re: Matter of Great Public Importance Touching upon the Independence of Judiciary" [SMW (C) No. 1/2019] has clarified that the inquiry into the sexual harassment allegations will remain separate from the investigation into this conspiracy. In that light of the matter, what reliance can the CJI place on the pendency of that investigation in setting up his defence? Will the Bains' affidavit and materials submitted by him be admissible before the inquiry? Materials whose prejudicial value outweigh their probative value can impact the fairness in assessing and weighing evidence. Thus, the committee will need to frame some guidelines in advance for how to separate this inquiry from the investigation being carried out by the parallel Justice Patnaik Committee.

9) How will the recommendations of the committee be enforced?

The importance to lay down a fair and detailed procedure in advance is particularly important due to the gravity of the allegations, which not only include an allegation of sexual harassment but grave allegations of subsequent victimisation including wrongful dismissal of the complainant (reported about here), her husband, brother-in law as well as institution of allegedly false criminal proceedings. Due to the extent of evidence available through the media, we believe a detailed inquiry with proper legal representation, leading of evidence, cross examination, witness protection provisions will amount to a fair, just and reasonable procedure. In Punita K. Sodhi (Dr.) v. Union of India and Ors. (2010 172 DLT 409), the Delhi High Court clarified that victimisation subsequent to sexual harassment forms part of the sexual harassment allegations.

D. Absence of judicial review

In the absence of any forum for appeal or review of the inquiry committee it is imperative that the committee errs on the side of caution and meticulously follows established principles of natural justice and fair process as evolved in the context of sexual harassment inquiries.

With institutional integrity at stake, the court must ensure that this inquiry instills confidence in the ability of formal institutional mechanisms to sensitively and fairly address sexual harassment. The Supreme Court must lead by example and abide by the principles that are expected to be followed for every other body inquiring into sexual harassment at the workplace. 

The Women in Criminal Law Association (WCLA) is a collaborative group for women in criminal litigation that aims to share knowledge, build skills, and create inclusive professional networks.

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