Solicitor General Opposes Reinstatement of Resigned Woman Judge Who Made Sexual Harassment Complaint Against HC Judge; Supreme Court Reserves Judgment

Solicitor General of India, Mr. Tushar Mehta, appearing for the Madhya Pradesh High Court, urged a Bench comprising Justices L. Nageswara Rao and B.R. Gavai to not allow the petition in exercise of Article 32 as otherwise it would have an effect of stigmatising a prestigious institution and the personnels manning it.

"Considering the totality of the facts it may be very harsh to stigmatise an entire institution and all individuals manning it, your lordships, may decline interference in an Article 32 jurisdiction."

On the last occasion, Senior Advocate, Ms. Indira Jaising appearing on behalf of the petitioner had argued that she was transferred in violation of the extant transfer policy. Ms. Jaising asserted that she was compelled to resign as she was faced with hostile transfer orders for not succumbing to the demands of the judge. The Senior Counsel clarified that the petitioner was inviting findings from the Apex Court on her right to be reinstated, rather than on the issue of sexual harassment. However, Ms. Jaising expressed her dismay that there exists no policy to enable a Judge to make a complaint of sexual harassment at the workplace.

On an earlier occasion the Supreme Court had suggested the Madhya Pradesh High Court to consider if the petitioner can be reinstated. The Full Court took the stand that her request cannot be considered. In January, 2022, the Supreme Court sought a response from the High Court as to why it chose not to act on its suggestions.

It is pertinent to note that a Judge's Inquiry Committee ("JIC") was constituted by the Rajya Sabha to investigate the grounds on which the removal of the said Judge of the High Court was sought. It submitted its report in terms of Section 4(2) of the judges (Inquiry) Act, 1968 way back on 15.12.2017. It had recorded that the transfer was punitive, irregular and unjustified and she was compelled to resign under 'unbearable circumstances'. However, it found that the interference of the respondent judge in the process of transfer did not amount to misbehaviour. As per the Committee, a higher standard of proof was required to establish her claim of harassment against a then sitting High Court Judge.

"The protection given to a judge holding constitutional position has a purpose to serve. Removal of a judge on allegations like corruption or sexual harassment affects not only the judge personally but in a large sense affects the general reputation of the judiciary and, therefore, higher degree of proof is required…", the report had stated.

As the report reflected that the transfer was irregular, the petitioner in 2017 made representation to the Madhya Pradesh High Court seeking her reinstatement, which was rejected by a Full Court meeting of the High Court.

At the outset Mr. Mehta clarified that he had not taken instructions from the High Court and the submissions made by him are only meant to assist the Court with some legal propositions. Stating that the prayer sought by the petitioner would have a significant impact on the judicial institutions, he felt he was duty bound to make such submissions. He emphasised that the High Court had not taken an adversarial stand in the matter.

"I must point out that I am conscious of the fact that I represent the High Court. But, I have not taken any instruction from the High Court. The submissions that I make are the submissions which I feel I am duty bound to make…Except for the first conference where the registrar general attended to give me the chronology. These are not the contentions raised by the High Court. Kindly do not take it that the High Court has taken an adversarial stand. If the prayer is granted the consequences are so huge that I think It is my duty to assist your lordship with some legal propositions.

Recapitulating submissions made on the last date of hearing, Mr. Mehta highlighted that instances of harassment were cited by the petition. One was with respect to intense surveillance by frequent inspection. Reference was made to the finding of the Judges' Inquiry Committee in this regard which reflected that such surveillance was a routine practice to enhance the quality of the work in subordinate judiciary, which helps to ensure that discipline and excellence is maintained in the performance of the judiciary.

"Alleged intense surveillance by frequent inspection. This was one ground urged of course after tendering resignation. The finding is that this is a regular phenomenon. This is not only with respect to the petitioner, but every judicial officer because there are circulars of the High Court to this effect…It was the view of the Committee that the inspection and surprise visits were in discharge of duty."

In order to demonstrate the catastrophic impact of the prayer sought by the petitioner, Mr. Mehta argued -

"...eventually I will assist your lordships to hold that holding what the petition wants your lordships to hold is going to be catastrophic. To justify a finding to be recorded by your lordships under Article 32 that the resignation was not an act of volition…but an act of coercion by creation of circumstances which became intolerable."

Mr Mehta asserted that in the present case the petitioner's resignation which was actually based on inconvenient family circumstances cannot now be urged to have been based on coercion. According to Mr. Mehta, a belated submission of coercion needs to be scrutinised more carefully.

"The mere incident of transfer along with an inconvenient family circumstance to record a finding by the Supreme Court that it was coercion would be difficult…Your lordships are not dealing with transfer order or its validity. The prayer sought is that the High Court as an institution connived together and ensured creation of circumstances that she had no other option but to tender resignation. When that fact comes after registration, it needs to be considered from a different threshold."

Submissions made by Mr. Mehta

Findings of JIC were not challenged

He argued that the findings of the three member committee which clearly indicated that there was no signs of sexual harassment was not challenged by the petitioner. The Committee had submitted its report in 2017 and now it is 2022, but no initiative has been taken to challenge the same.

JIC exceeded its Scope of Inquiry

Mr. Mehta averred that the scope of the Committee was whether allegations of sexual harassment was established, which it had answered in the negative. But, it had gone beyond its remit and opined that the transfer was irregular. Such determination was beyond the scope of the committee's investigation.

Irregular transfer does not indicate petitioner was coerced to resign

It was asserted that even if the transfer is considered to be irregular, it could not have automatically led to the conclusion that she was coerced to resign. More so, the pressure alleged to have been created on the petitioner cannot be attributed to an entire institution.

"Considering it is not so, a mere irregular transfer cannot be a justification to seek a declaration that because of this transfer I was so tormented that I had to resign and had no other options. We are not concerned with one individual, but with the institution…I may go to the extent of saying that the transfer was malafide, would we be justified in blaming or stigmatising an entire institution to be a party to the tormenting process…"

Petitioner did not challenge her transfer order

Mr. Mehta argued that a person who was served a transfer order, which they think to be malafide or arbitrary in nature, ought to have challenged the same before a court. Especially when the petitioner was a judge herself, she should have known and done better.

"A person who faced malafide transfer can challenge it. We are not dealing with laymen, we are dealing with legally trained minds…"

Resignation based on impulsive reaction and not related to coercion

He further averred that the petitioner had resigned based on an impulsive reaction and the same is not expected from a judicial officer whose duty is to make impartial judgments.

"An impulsive reaction can be no justification for inviting a finding of the highest court that it was an act of coercion… Judicial officers cannot make impulsive decisions. The duty of the judge is to take decisions without taking pressure from within or outside. Cannot lead to acts of coercion."

Plea of coercion needs to be pleaded, asserted and established

Mr. Mehta pointed out that the plea of coercion had to be pleaded, established and the Court ought to have given a finding to the effect that the pressure created by the employer ultimately led to the resignation.

"Finding of coercion resulting in resignation is a concept used in western jurisprudence as a concept in labour law where the workmen raise such pleas and establish by leading evidence. Thereafter, findings are recorded."

Doctrine of labour law not applicable to judicial officer

The Court was repeatedly urged not to apply the doctrine applicable to employer and employees under labour law to a judicial officer.

"This doctrine is not acceptable in the case of a judicial officer. They would not fall under the ambit of labour law."

Resignation was based merely on mid-term transfer

Referring to the JIC's report, Mr. Mehta submitted that apart from the issue of transfer, the findings with respect to all other allegations were against the petitioner. Therefore, undoubtedly inconvenienced by the mid-term transfer the petitioner had decided to resign.

"The decision to resign is admittedly only based on mid-term transfer. Rest of the allegation was against the petitioner."

Petitioner's transfer was not solitary transfer

It was argued that apart from the petitioner, more than 25 other judicial officers from the same cadre were transferred mid-term.

Existence of inconvenient circumstances is not enough to show coercion

Mr. Mehta asserted that mere existence of inconvenient circumstances is not enough to establish coercion. It ought to be proved by cogent evidence that the intolerable pressure built on the employee was intended to ensure creation of such an hostile environment that the employee is forced to resign.

"The most crucial proposition of law because this decision will hold the field for the future - mere existence of a circumstance inconvenient to an officer or employee is not enough for a judicial declaration that the resignation was due to coercion or intolerable pressure. It must be demonstrated on leading cogent evidence that not only intolerable pressure was built, such pressure was intended not just to trouble/victimise employees but to ensure that the atmosphere is so created that employees resign."

Cannot be decided in a Article 32 petition

Coercion is to be established by proof and therefore jurisdiction under Article 32, which does not provide for evidence collection cannot be exercised in the present matter.

"The antecedent facts to be pleaded, asserted and established which are normally not possible in a 32 petition."

Higher threshold of proof

Mr. Mehta emphasised that the threshold to unsettle the findings of the JIC and thereafter, the Full Court of the High Court would be much higher than normal standard of proof.

"Such findings are subject to higher threshold of proof and cannot be prayed on merely based on one incident of irregular transfer…Kindly consider that the decision was taken by a committee of judges. Then by full court, then by the Chief Justice."

Belated Allegations

It was reiterated that the petitioner, being a judicial officer, had all the means to escalate her complaint, but surprisingly, she chose not to do so.

"Your lordships are dealing with a person who has made allegations of coercion after resignation. The petitioner could have raised these allegations prior to. She could reach out to senior judges to complain that she was not getting peon. It is not so that she did not have opportunities to vent her problems. Now on belated assertion your lordships are prayed to give a finding against an institution."

'Reasonable person' test to be applied

The test to be applied while considering a petition based on an allegation of coercion should be a test of reasonable person. Mr. Mehta emphasised that the same ought not to be tested from the point of view of an over sensitive or impulsive or egoistic person.

Delay does not inspire confidence

Clarifying that he does not mean to harp on hyper-technical ground of delay and laches, Mr. Meta argued that the petitioner's conduct of approaching the Court only in 2018 does not inspire confidence.

"...After 2015, this petition is filed in 2018, I am conscious I am representing the HC. I am not taking the hyper-technical ground of delay but this conduct doesn't inspire confidence that there was coercion and intolerable pressure."

Our jurisprudence not to be influenced by foreign judgments

Referring to the judgments of the foreign jurisdiction cited by Ms. Jaising, Mr. Mehta commented that our ethos being different from the foreign countries, our jurisprudence should not develop or be influenced by western jurisprudence.

"Principally, it has always been my respectful submission to the Court that our jurisprudence should not be influenced or developed by western jurisprudence…We have our own systems, our own problems and our ethos. We need not be influenced by what is stated in some other jurisdiction."

Doctrine of constructive discharge

On last occasion, Ms. Jaising had relied on the doctrine of 'constructive discharge', Mr. Mr. Mehta noted that 'constructive discharge' occurs when the employer deliberately makes or allows employees' work conditions to be so intolerable that the employee has no other option but to quit. Constructive discharge has been defined as an onerous transfer having the purpose and effect of forcing the transferred employee to quit the employment.

He asserted that a finding of constructive discharge of an employee depends upon whether a reasonable man would view working conditions as intolerable and ought not to be evaluated from the subjective view of the concerned employee.

To establish constructive discharge it had to be pleaded, asserted and established that there was an intention to create such an hostile environment that the employee is forced to quit.

He argued that an unpleasant workplace would not amount to a 'hostile environment'.

Scope of Judicial Review of the decision of the Full Court

Mr. Mehta referred to three judgments of the Supreme Court to set out the contours of judicial review of the decision of the Full Court of a High Court.

Relevant portion of Syed T.A. Naqshbandi And Ors. v. State of Jammu and Kashmir is reproduced below -

"The fact that subsequently it was got meticulously prepared by the Committee and the assessment came thereafter to be duly made and further was got unanimously approved by the Full Court will belie the bald and self-serving claims of the petitioners, to the contrary. Neither the High Court nor this Court, in exercise of its powers of judicial review, could or would at any rate substitute themselves in the place of the Committee/Full Court of the High Court concerned, to make an independent reassessment of the same, as if sitting on an appeal. On a careful consideration of the entire materials brought to our notice by learned counsel on either side, we are satisfied that the evaluation made by the Committee/Full Court forming their unanimous opinions is neither so arbitrary or capricious nor can be said to be so irrational as to shock the conscience of the Court to warrant or justify any interference. In cases of such assessment, evaluation and formulation of opinions a vast range of multiple factors play a vital and important role and no one factor should be allowed to be overblown out of proportion either to decry or deify an issue to be resolved or claims sought to be considered or asserted. In the very nature of things it would be difficult, nearing almost an impossibility to subject such exercise undertaken by the Full Court, to judicial review except in an extraordinary case when the Court is convinced that some monstrous thing which ought not to have taken place has really happened and not merely because there could be another possible view or someone has some grievance about the exercise undertaken by the Committee/Full Court."

Relevant portion of Registrar General, Patna High Court v. Pandey Gajendra Prasad And Ors. is reproduced below -

"There is nothing on record to even remotely suggest that the evaluation made, firstly by the Standing Committee and then by the Full Court, was so arbitrary, capricious or so irrational so as to shock the conscience of the Division Bench to justify its interference with the unanimous opinion of the Full Court. As regards the observation of the Division Bench on the reputation of the first respondent based on his ACRs, it would suffice to note that apart from the fact that an ACR does not necessarily project the overall profile of a judicial officer, the entire personal file of the respondent was before the Full Court when a conscious unanimous decision was taken to award the punishment of his dismissal from service. It is also well settled that in cases of such assessment, evaluation and formulation of opinion, a vast range of multiple factors play a vital and important role and no single factor should be allowed to be blown out of proportion either to decry or deify issues to be resolved or claims sought to be considered or asserted.

In the very nature of such things, it would be difficult, rather almost impossible to subject such an exercise undertaken by the Full Court, to judicial review, save and except in an extra-ordinary case when the court is convinced that some exceptional thing which ought not to have taken place has really happened and not merely because there could be another possible view or there is some grievance with the exercise undertaken by the Committee/Full Court. [(See: Syed T.A. Naqshbandi (supra)]."

Relevant portion of Rajendra Singh Verma v. Lt. Governor of Delhi is reproduced below -

"Further in case where the Full Court of the High Court recommends compulsory retirement of an officer, the High Court on the judicial side has to exercise great caution and circumspection in setting aside that order because it is a complement of all the judges of the High Court who go into the question and it is possible that in all cases evidence would not be forth coming about doubtful integrity of a Judicial Officer.

As observed by this Court in High Court of Punjab & Haryana through R.G. Vs. Ishwar Chand Jain and Another, (1999) 4 SCC 579, at times, the Full Court has to act on the collective wisdom of all the Judges and if the general reputation of an employee is not good, though there may not be any tangible material against him, he may be given compulsory retirement in public interest and judicial review of such order is permissible only on limited grounds.

The reputation of being corrupt would gather thick and unchaseable clouds around the conduct of an officer and gain notoriety much faster than the smoke. Sometimes there may not be concrete or material evidence to make it part of the record. It would, therefore, be impracticable for the reporting officer or the competent controlling officer writing the confidential report to give specific instances of shortfalls, supported by evidence."

Placing reliance on the underlined portion of the judgment, Mr. Mehta argued that the Full Court can in public interest take a decision based on the general reputation of an employee even without any material against them. He submitted that the Full Court had seen the ground situation and on such consideration thought it fit not to reinstate the petitioner. It was highlighted that the two different compositions of the Full Court had been assigned with the task to decide and both have decided against reinstating the petitioner.

Rebuttal by Ms. Indira Jaising

Doctrine of Delay and Laches not applicable

Ms. Jaising submitted that there was no delay as the petitioner had participated in the JIC inquiry and therefore, had been pursuing her legal remedy in a bonafide manner. Immediately upon rejection of her representation by the Full Court on 25.01.2018, she had approached the Supreme Court with her Writ Petition on 23.07.2018.

"He seems to be implying that there is a delay on my parts in approaching the court. I submit that there is no delay…She was bonafide pursuing a remedy available to her in law, She participated fully before the JIC…and therefore that is part of pursuing her remedies in law. And that process concluded on 15.12.2017, when the report was submitted to Rajya Sabha…She made her application to the Full Court…There was a recommendation (by JIC) that she should be reinstated. So she made an application to the Full Court on 21.12.2017. Then, she was informed by the Full Court that her representation was rejected on 25.01.2018. She filed the present Writ Petition on 23.07.2018. Therefore, there is no delay, Doctrine of delay and laches cannot be put to her doorstep."

Submission that allowing the petition would open floodgates is an argument of alarm

Ms. Jaising submitted that Mr. Mehta's argument that the course of administration would suffer and if the petition is allowed it would amount to opening floodgates is an argument of alarm, similar to the ones made by the Counsels opposing pleas of sexual harassment before the Vishakha guidelines came into existence.

"This is an argument of alarm. Before Vishakha, everytime a case of sexual harassment came to court, Counsel would argue that if you allow this tomorrow your Secretary will make allegations on you. This is not an argument of law, but an argument of prejudice."

The transfer is bad in law

Relying on the judgments of Somesh Tiwari and Prabha Apte, Ms Jaising argued that the transfer was bad in law and ought to be set aside by the Supreme Court.

"I pitched my case at two levels -

1. Violation of guidelines;
2. Transfer was illegal.

Although the Committee held that the transfer was irregular, it is my submission that it was an arbitrary and illegal order of transfer…It violates her right to work under A. 19(1)(g) as held in Vishakha…The mere violation of guidelines, which is so gross entitles me to relief."

Doctrine of English law can be relied upon

With respect to the submission of the Solicitor urging the Court to not rely on doctrines of English law, Ms. Jaising submitted that by virtue of Article 372 of the Constitution of India, common law continues to be the law in India and therefore, reliance on the English doctrine cannot be opposed.

"There was an argument made that, do not rely on doctrines of English law, my answer to it is that kindly open Article 372 of the Constitution of India."

She further referred to Arup Bhuyan v. State of Assam (2011) 3 SCC 377, wherein the Supreme Court had held -

"We respectfully agree with the above decisions, and are of the opinion that they apply to India too, as our fundamental rights are similar to the Bill of Rights in the U.S. Constitution."

Not required to show intention to resign

Ms. Jaising argued that the employee is required to show intention only when they allege that the employer is vicariously liable and seek damages for the same. In the present case, she averred the petition was not seeking any damages.

"I want to clear one misconception raised by Ld. Solicitor. He says that you must show intention to resign. It is not true. Intention is required to be shown when a person says that the employer is vicariously liable for damages…I am not claiming damages at all. She is a person who has made no claims. Intention is not required to be shown…"

The Burden is on the employer to justify transfer

Ms. Jaising argued that the burden to establish coercion was not on the employee, but the burden to show that the transfer was valid was definitely on the employer, which he had failed to discharge.

"In fact he does not have ways to justify his adverse step…If he wants to succeed the burden is on him to defend the order of transfer. The burden is on him. I did not hear a single argument to say that the transfer was reasonable."

The other officers transferred were not similarly situated

Refuting Mr. Mehta's argument that similarly situated officers were also transferred mid-term, Ms Jaising submitted that the batch of judicial officers transferred were District Judges and not ADJs; they had completed deputation and were transferred to vacant courts, which was not the case for the petitioner.

"He argued similarly situated people were also transferred. False…All their orders of transfer are annexed and I will show you the difference…Please see it says District Judge. She is not the District Judge, these people were in the super time scale. There are three difference

1. They were selection grade judges, not ADJs;
2. they had completed their deputation and were coming back from deputation;
3. their names were in the agenda which went to the transfer committee;
4. they were all transferred to vacant courts."

She added that unlike the petitioner, the ADJs transferred were also on the agenda list for transfer, their deputation was complete and they were transferred to vacant courts.

Committee had jurisdiction to make recommendations

Mr. Mehta's argument on the scope of scrutiny by the committee was controverted by Ms. Jaising, as she argued that the committee is a fact finding committee and apart from submitting a report on conclusion of investigation it is entrusted with the duty to make observations on the whole case as it thinks fit.

"My emphasis is 'with such observations on the whole case as it thinks fit' My Ld. Friend had attacked the recommendation made by the committee. My answer to that is they are within their rights to make such recommendations, which is within the framework of the law…The Committee accepted he did interfere with her transfer, what they have rejected is that they couldn't show the nexus between the transfer and the sexual harassment."

Attempt to stereotype by stating that the petitioner was emotional

Ms. Jaising argued that Mr. Mehta had repeatedly stated that the petitioner's decision to resign was an emotional one. Averring such an argument is a stereotypical argument, Ms. Jaising referred to the decision of the Supreme Court in Aparna Bhat v. State of Madhya Pradesh, wherein it had set out guidelines regarding how the judiciary is to approach questions of gender justice.

She quoted the following paragraph from Aparna Bhat :

"Further, courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order, to the effect that (i) women are physically weak and need protection; (ii) women are incapable of or cannot take decisions on their own; (iii) men are the "head" of the household and should take all the decisions relating to family; (iv) women should be submissive and obedient according to our culture; (v) "good" women are sexually chaste; (vi) motherhood is the duty and role of every woman, and assumptions to the effect that she wants to be a mother; (vii) women should be the ones in charge of their children, their upbringing and care; (viii) being alone at night or wearing certain clothes make women responsible for being attacked; (ix) a woman consuming alcohol, smoking, etc. may justify unwelcome advances by men or "has asked for it"; (x) women are emotional and often overreact or dramatize events, hence it is necessary to corroborate their testimony; (xi) testimonial evidence provided by women who are sexually active may be suspected when assessing "consent" in sexual offence cases; and (xii) lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman."

Emphasising on the above-list enumerated by the Apex Court, Ms Jaising submitted -

"I would like to submit that Mr. Mehta's proposition in writing is nothing short of male chauvinism and stereotyping of a responsible judicial office who has had a very distinguished record of service."

Relevance of western jurisprudence

Citing Vishakha's judgment, Ms. Jaising argued that therein the Apex Court had permitted the application of international law principles in municipal law.

"I would like to say that I am impressed with Mr. Mehta's nationalistic attitude towards jurisprudence when he says that our courts should not look as western jurisprudence. But, I am an internationalist and I will look everywhere for light. On the use of international law only one judgment is to be cited…the Vishakha judgment. It says explicitly on the use of international law in Indian judgments."

Article 11 of CEDAW

Article 11 of CEDAW states that a woman should be able to work and discharge family functions at the same time. Relying on the same, she argued that the transfer order made it impossible to discharge her duty towards her daughter.

"India has signed CEDAW. The particular provision of CEDAW (Article 11) that I am relying upon is that a woman should be able to work and discharge family functions at the same time. The guidelines of the High Courts are very progressive. They say if you have a daughter in Class 12, don't transfer her."

Ms. Jaising further remarked -

"I seek your indulgence in advance, to say something which I have never said in any proceeding. Mr. Mehta made an argument, that a woman who makes an allegation of sexual harassment, if you allow her to come back then what message would be sent to the country… I am sorry to point out the hypocrisy in this statement. There is a person in this Court who has been reinstated after her complaint of sexual harassment was not proved.'

Mr. Mehta vehemently protested that he had not made any such submissions during the course of the proceedings. The Solicitor General also denied making any submission that the petitioner had made "emotional decisions". Maintaining that his submissions had been gender-neutral, the SG objected to Ms.Jaising's remarks.

Ms. Jaising concluded -

"Any working mother should not be forced. And this does amount to coercion to force a mother to choose between her duty towards her daughter and her duty towards her job."

Judgment has been reserved.

[Case Title: X v. Registrar General & Anr, Writ Petition (C) No. 1137 of 2018]

Click Here To Read/Download Order