JOIN USConstitutional guarantees of gender equality in peril
The course adopted by the Supreme Court to deal with the charges of sexual harassment against Chief Justice of India Ranjan Gogoi has disregarded the legal procedure to such an extent as to now be farcical, though terrifying. The manner in which the entire episode has taken place has violated every legal principle that the Apex Court is designated to uphold to maintain justice and equity. The failure to do so has brought to the forefront not only the compromised manner in which the matter has been dealt with, but also poses very real concerns to the constitutional guarantees of gender equality.
The issue has been widely reported, so we will touch upon the events themselves only briefly. A complaint of sexual harassment was made by a former employee against the CJI Gogoi, where she was subsequently terminated on frivolous charges, and various members of her family had to face harassment and victimisation. A Special Bench was constituted immediately following media coverage of the complaint, which included the CJI. In the hearing of this Bench, the CJI denied the allegations of sexual harassment, and stated that this was part of a larger conspiracy to destabilise the Supreme Court of India.
The Complainant was not issued a notice during this hearing, and in fact, had several aspersions cast upon her, in her absence. It appears from the affidavit of the complainant that the central government was aware of the allegations against CJI, but failed to take cognizance of the same, thereby showing certain degree of complicity in the matter. It may be noted at this juncture that an advocate, Utsav Bains, alleged that he had been offered a massive bribe to take up the case of the complainant, and stated that there was a larger conspiracy by “a lobby of disgruntled judges” at play. Subsequently, however, his affidavit in the Supreme Court targeted those he called corporate fixers, naming Dawood Ibrahim and Naresh Goyal. Despite these discrepancies, the Supreme Court continues to seriously take up Bains’ allegation of a conspiracy against the CJI.
Thereafter, an In-House Committee was set up to enquire into the complaint. The former employee/complainant, having attended two sittings of the inquiry, withdrew from further participation while raising serious questions about the procedure being followed. The Committee did not permit the former employee to be accompanied by a lawyer or support person, neither was any video or audio recording made of its proceedings. The committee even denied the complainant a copy of her own statement. Despite this withdrawal, the Committee proceeded ex-parte and recorded the statement of the CJI.
The media has reported that Justice DY Chandrachud had written a letter to the committee requesting that the proceedings not continue ex-parte, and that an external member be appointed to the Committee. On May 6, 2019, a press release was issued by the Supreme Court stating that the In-House Committee has found no substance in the allegations contained in the complaint and has refused to make the report public. Importantly, it also stated that a copy of the report has been provided to the CJI. The complainant, on the other hand was not furnished with either the statement of the CJI, or the report with the findings of the Committee.
The Vishaka Guidelines framed by the Supreme Court in 1997, a precursor to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, were framed recognizing that every incident of sexual harassment resulted in the violation of the fundamental rights to equality, life with dignity and the right to practice a profession or occupation of their choice guaranteed to the victim. It said that such guidelines were necessary for the effective enforcement of the basic human right of gender equality.
About 15 years after the Vishaka Judgment, in 2012 the Supreme Court in Medha Kotwal Lele and Ors. vs. Union of India (UOI) and Ors. issued directions to all state authorities, private employers, and institutions to ensure compliance with the guidelines laid down in Vishaka. The Court, in which the present CJI was also a part of the Bench, held that “The implementation of the guidelines in Vishaka has to be not only in form but substance and spirit so as to make available safe and secure environment to women at the workplace in every aspect and thereby enabling the working women to work with dignity, decency and due respect”.
The Sexual Harassment Act, 2013 is itself an outcome of the Supreme Court’s recognition of the need for such a law. It squarely covers within its ambit the Supreme Court itself, which as an institution is required to ensure compliance with the same. The Act, like the judgment of the Supreme Court in Vishaka, mandates the creation of an internal complaints committee, including within it an external member. The Sexual Harassment Rules, 2013 also provides the procedure that is to be followed by the Internal Complaints Committee.
In this context, when it was decided that the enquiry was to be conducted by an in-house committee, instead of the Internal Complaints Committee under the 2013 Act, and given the existing power imbalance, it was necessary for the committee to have provided safeguards in consonance with those provided under the Sexual Harassment Act and under the Vishaka judgment. However, the Kafkaesque manner in which the inquiry has taken place is only a reinforcement of the apprehensions of the Supreme Court which held in Medha Kotwal that “Lip service, hollow statements and inert and inadequate laws with sloppy enforcement are not enough for true and genuine upliftment of our half most precious population - the women”.
The manner in which this incident has been handled is a cause for grave concern not only for what it means for the integrity of the Supreme Court, but also the dangers it poses to the constitutional guarantees of gender equality. The response of the rest of the Supreme Court is also telling, where according to a statement issued by a number of former law clerks and research assistants, several judges reportedly asked for an all-male staff.
The Chennai High Court in the case of M. Kavya v. Chariman, UGC and Ors. has recognized the dangers of secondary victimisation as a real assault on gender justice. Secondary victimisation is indicated as a victimisation that occurs not as a direct result of a criminal act but through the inadequate response of institutions and individuals to the victims. The failure to provide adequate institutional response to sexual harassment would result in further erosion of the constitutionally guaranteed rights to equality and a life with dignity.
At a time like this, it has become imperative that we remember the protests and people’s movements, which on a minimum of two occasions led to the total overhaul of sexual assault laws. The first was in the case of Mathura, an Adivasi woman raped by police officials in the police station. The Supreme Court in its infamous judgment held that Mathura had raised no alarm and had no visible signs of force, and therefore acquitted the policemen of rape charges. The public outcry against the judgment from academics, lawyers and various rights activists resulted in an amendment of the Evidence Act and the Indian Penal Code. Similarly, the huge protests surrounding the Nirbhaya Rape Case led to the Criminal Law (Amendment) Act, 2013, which drastically expanded the definition of rape.
Today, when there persists a threat to the constitutional guarantees of gender equality, the responsibility lies with the people to rise up to the moment like they have on previous occasions and ensure that the fundamental values of our Constitution are upheld.
(Avani Chokshi and Maitreyi Krishnan are advocates with Manthan Law, practicing in Bangalore)
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