Loose ends from the 'intern' case

The question of Justice Ganguly resigning from the Human Rights Commission looms large. It is no answer to say he can recuse himself from sexual harassment cases.

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On November 6, a former intern from National University of Juridical Sciences (NUJS) Kolkata wrote in the Journal of Indian Law and Society that a Supreme Court (SC) judge "old enough to be her grandfather" had sexually harassed her in a five star hotel. This was repeated on November 11 in an interview on a website Legally India.

On November 12, after some fumbling, a 'Vishaka' committee was quickly set up to inquire into the complaint on a zero tolerance basis. Curiously, although its judgment in Vishaka (1997) had mandated a regular committee, the SC made Gender Sensitisation and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations only in August 2013.

Indictment

But no committee was established under these regulations till November 26 when a named Committee of 10 was established. On November 12, on the judicial side, the court generally directed a "must-do" registration of FIRs in cognisable cases. This included, perforce, cases of assault, outraging modesty of women and the enlarged definition of 'rape'. Meanwhile, on November 15, news surfaced of another intern allegedly with a complaint against the same judge.

A strong lobby including former High Court judges felt that the more forceful remedy would be a police investigation. A former Delhi law professor, S.N. Singh, filed a police case on November 14. Two processes were set in motion. There was criticism that the SC judges committee should have been headed by a woman, with two-thirds women members. But the three judges committee went ahead.

On the Judges Committee issuing notice, the former intern (now lawyer) recorded her statement. On November 20 the 'intern' did not show up - though the judges waited for over an hour. Later on November 25 she claimed that even when she appeared before the judges she felt uncomfortable. By November 29 Justice A.K Ganguly was identified as the judge. He denied the allegations and claimed that he was denied access to the 'intern's' affidavit and not given time. Former Chief Justice Altamas Kabir supported Justice Ganguly. Former Attorney General Sorabji said it was not necessary for Justice Ganguly to resign as Chair of the West Bengal Human Rights Commission (WBHRC) despite pressure from CM Mamata Banerjee who was upset by the Justice Ganguly-headed Commission's probes into her government's infringement of human rights. However, after the Supreme Court's indictment, Justice Ganguly may consider resigning now! Under the human rights statute, he can be removed by the President after a reference to the Supreme Court. Does he want to face this?

Jurisdiction

On December 5, Chief Justice P. Sathasivam released some details of the Committee's report which found (i) that "the statement of the intern... prima facie, discloses an act of unwelcome behaviour... verbal/nonverbal conduct of sexual nature", but since (ii) 'the intern was not an intern on the roll of the Court and the concerned judges had already demitted office... no further action is required by this court".

Lack of jurisdiction was affirmed by the Full Court. The SC's decision has been criticised. First, if the court had no jurisdiction why did it virtually indict Justice Ganguly with its powerful prima facie view? Second, the court could at least have said that the police was free to investigate a complaint even if the court did not want to direct its registrar to file a police case. Indeed, even lawyer politicians like Sibal and Jaitley criticised the SC for leaving things inconclusively in the air. It had risen to the situation, created expectations and then lost its way.

There are three important fallouts of this decision. The first is: what is the scope of Supreme Court's jurisdiction including that of the Committee of 10? Will it cover all activity within the precincts? (including lawyers' chambers)? Will it extend to lawyers and judges' homes in respect of legal work? Will there by a preliminary inquiry to determine a prima facie case? Will judges be judged by their peers or the Committee of 10 dominated by lawyers and a jurist? Can the Committee order criminal action? Second, can lawyers and judges refuse to hire women? Is there a law against this? For judges, perhaps yes, because constitutional functionaries cannot discriminate. But what about lawyers? Or people in civil society generally? Third, does the Committee extend to cases of sex harassment or sexual discrimination as well? The latter question needs to be addressed as it has been in other countries.

Examination

Farooq Abdullah's outrage accidentally points to this lacuna. Unfortunately, the Madhava Menon Committee wholly botched up the case for a nondiscrimination law in matters of employment, housing, education and the work place. This could resolve the grounds of rejecting opportunities to women on grounds of sex.

The question of Justice Ganguly resigning from the Human Rights Commission looms large. It is no answer to say he can recuse himself from sexual harassment cases. In one sense, there is a prima facie finding against him, which should not have been given if the court did not have jurisdiction. Yet the finding exists. To say that it is his call is too trite. Initiating his removal, with the President could begin another embarrassing process against him. Even ignoring the media trial, he should resign without confessional explanation.

Our sexual harassment and sex discrimination law needs comprehensive examination.

The writer is a Supreme Court lawyer

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