Women’s organisations oppose clean chit to CJI

The exoneration of the Chief Justice of India (CJI) from charges of sexual harassment by a former employee of the Supreme Court, by an in-house committee drew angry responses from women’s organisations in the national capital today. Several of them congregated near the Supreme Court and held a demonstration demanding justice for the ex-employee and pointing out infirmities in the procedure under which the inquiry had been conducted. Many of them courted arrest as well.

The All India Democratic Women’s Association (AIDWA), one of the main protesting groups, pointed out in a detailed statement that the inquiry itself was set up after objections were raised against the “court hearing”, which was presided by the CJI himself. The complainant had submitted an affidavit stating her grievance and the alleged victimisation of her family members since October 2018 when the incident is supposed to have taken place. The controversial hearing, which was presided over by the CJI and two other judges, passed an order describing the complaint as “wild and scandalous”. The complainant herself was not given a hearing.

“The basic principle that no one can be a judge in his own case was flouted”, stated AIDWA. It pointed out that the in-house committee set up later did not have any external member as mandated by the Sexual Harassment at the Workplace Act (Prevention, Prohibition and Redressal), 2013 (POSH Act). “It is inexplicable why a respected woman ex-Judge of the SC could not be asked to be a member. This would have been in keeping with the letter and spirit of the POSH Act and lent an air of impartiality to the inquiry,” the statement issued by AIDWA said.

The complainant withdrew from the inquiry after three hearings in which she was asked to make her statement. She reportedly said that she found the atmosphere unsympathetic and intimidating. AIDWA pointed out that the complainant’s request for a lawyer or a support person was also turned down, “Surely, the judges failed to understand that a mere ex-employee could not be expected to face an inquiry by SC judges given the vast difference in status and power between the two. The woman’s further request to videotape the inquiry proceedings was also turned down. Finally, she was not even given a copy of the report of the “in-house committee” which exonerated the CJI while the CJI was sent a copy. We feel that not allowing the woman to appear with a counsel or a support person was unfair. Not giving her a copy of the report is also not following a fair procedure as the woman has no way of examining the report and what has gone against her and whether all the material given by her was examined or the evidence she wanted to lead was taken into account,” said AIDWA office bearers Mariam Dhawale and Malini Bhattacharya.

Apply the POSH Act in letter and spirit

It is interesting that the POSH Act, specifically passed by Parliament to deal with the prevention, prohibition and redress of sexual harassment at the workplace, was not applied in this case. While questions of whether the POSH Act can be invoked or not in a dated case of sexual harassment are relevant, there is no doubt that the charges themselves needed to be investigated impartially, concerning as they did the highest office of the judiciary. Women organisations feel that the letter and spirit of the Vishaka Guidelines regarding sexual harassment at workplace, which were issued by the Supreme Court itself, and the POSH Act should be followed even in the case of a Supreme Court judge. Organisations like AIDWA have also demanded that norms of fairness be deployed in the procedures involving the constitution of in-house inquiry committees and appropriate amendments be made in the procedures for inquiries involving other judges and the CJI.

Inspired by the #MeToo movement in the United States, many women in India also “came out” and used social media to “call out” persons they claimed had sexually harassed them. One particularly high profile case involving a former Minister of the National Democratic Alliance (NDA) government who has filed a defamation suit against the complainant is at the cross-examination stage in court. While issues of “due process” to be followed by complainants is a valid one, there is a realisation that most persons accused of sexual harassment often occupy positions of power and authority and that complainants often find it challenging to take them on for fear of losing their position, status or face in society.

The shoddy implementation of the POSH Act and the lack of monitoring by the government as mandated under the Act, is also a lacuna that needs to be addressed. Women’s organisations and other groups also feel that the time limit of three months given for filing complaints under the Act should be waived, as often the complainant is unable to pursue the complaint while being employed in the same organisation as the alleged perpetrator of harassment and usually gets the courage to do so many years after the incident.

According to Section 9 of the Act, a complaint should be filed within three months of an incident taking place. If it is a case of a series of incidents, the complaint has to be filed within a period of three months since the last incident. The need to waive the time limit came up in the context of the #MeToo movement in India. Last year, following a series of allegations of sexual harassment by women journalists against their colleagues or seniors, including complaints of sexual harassment made by almost three dozen women journalists against former Union minister M.J. Akbar, an inter-ministerial government committee headed by the Union Home Minister was set up to look into the various aspects of the Act and waiving off the time limit of three months. The committee is yet to give its final recommendations.