Sydney (Australia): “I have been sexually harassed to the very limit. I have been treated like utter garbage. I feel like an unwanted insect. And I hoped to provide justice to others… “I did not expect that my complaints and statement be taken as cardinal truth. All I wished for was a fair enquiry.”
On 13 December 2023, the Supreme Court refused to consider a writ petition filed by a district judge in Uttar Pradesh but, on orders of Chief Justice D Y Chandrachud, asked for a report from the Allahabad High Court on her allegation of sexual harassment by another judge six month ago.
In dismissing her plea, the Supreme Court said an internal committee was considering her case, but these allegations illustrate a structural issue with judiciary: that question of sexual harassment should not be dismissed as harming judicial independence.
Sexual harassment within the judiciary is a question of rights of a victim and a question of judicial accountability. As a branch of the State, the judiciary much like the executive and the legislature, has a constitutional obligation to take seriously the Vishakha guidelines, instituted in 1997 after the incident of gangrape in Rajasthan.
In April 2019, the then Chief Justice of India, Ranjan Gogoi, was accused of sexual harassment and victimisation by a former staff member of the Supreme Court. The violation of rights of the victim in this case are well-accounted for. Without commenting on the merits of the 2019 cases, it is instructive to focus on specific structural lessons from the case.
I argue that there is what I call a structural blackhole in the procedure that should follow allegations against a Chief Justice of India. Currently, the office of Chief Justice institutionally operates above the Protection of Women from Sexual Harassment Act 2013 and even above the Supreme Court’s own internal process.
This is not a new argument and has been made by multiple scholars, activists, and actors. But in light of the failure of any action over the past five years, it warrants a repetition (here, here, here, here, here, here, here, here, here, and here).
1997: Judicial Standards of Accountability
The primary mechanism for judicial accountability in India has been impeachment motion through Parliament under Article 124, Article 217, and the Judges (Inquiry) Act, 1968.
The impeachment process, however, is not a routine mechanism and rightly so since judges should not fear impeachment without rigorous process. Further impeachment may not always be a proportionate response. Across the world accountability through internal mechanisms has been seen as an important source of accountability.
In 1997, the Supreme Court of India in its full court meeting adopted a document called the Restatement of Values of Judicial Life. This document provides standards of judicial self-accountability. It has an illustrative list of restricted behaviour and conduct for judges, such as a ban on contesting elections for societies or associations, accepting gifts, investments and business, on families appearing before a judge’s court. There are 11 guidelines on similar lines.
This document does not explicitly mention sexual harassment. But sexual harassment can be read within the opening para of the document which provides that high court and Supreme Court judges should not act in “official or personal capacity” in a manner that “erodes credibility” of the judiciary.
“The behaviour and conduct of members of the higher judiciary must reaffirm the people's faith in the impartiality of the judiciary,” reads the document. “Accordingly, any act of a Judge of the Supreme Court or a High Court, whether in official or personal capacity, which erodes the credibility of this perception has to be avoided.”
1999: Mechanism for Internal Remedies
The 1997 document did not provide any remedial mechanism in case of non-adherence to the guidelines. Thus, in December 1999 the Supreme Court adopted an In-House Procedure to provide for remedial action against judges for violation of the 1997 guidelines, which it accepts as ‘universally accepted values of judicial life’.
This document provides internal remedies within the institution of the judiciary. The remedies are internal to ensure that judicial independence is protected against outside agency and judges are judged by their own peers. (para 2). A separate procedure is provided for three categories of misconduct based on who is the alleged violator: misconduct by a judge of the High Court; a Chief Justice of a High Court; and a judge of the Supreme Court.
Chief Justice of India: The Anchor
This is the structural blackhole. There is no procedure that must be followed in case of allegations against any Chief Justice.
One can argue that the Chief Justice of India is a judge of the Supreme Court too, which means, technically, the in-house procedure is applicable.
However, the Chief Justice of India is the anchor through whom the entire procedure is carried out in all three kinds of proceedings.
The Chief Justice of India receives the complaints or gets the complaints as forwarded to him by the President of India. The Chief Justice asks for a response from the judge alleged to have violated the guidelines.
In the case of a complaint against a high court judge, the Chief Justice of India has to be informed at each step by the chief justice of the concerned high court. The Chief Justice of India determines whether there is need for a deeper probe based on the report from the chief justice of the high court.
The Chief Justice of India constitutes a three-member inquiry committee with high court judges; chief justices; and/or other Supreme Court judges based on the category).
Based on their report, the Chief Justice of India files the report on whether the complaint has any substance or not. If substance is found in the complaint, then proceedings for removal of the judges have to be started.
Then the Chief Justice of India adopts the next steps which can include asking the concerned judge to seek voluntary retirement, stop allocation of judicial work and intimidate the President and the Prime Minister or if the misconduct is not so serious then the Chief Justice calls on the judge and advises him/her accordingly.
So, this procedure is effectively not applicable to a Chief Justice of India, as it would mean asking Chief Justices to hear complaints and take action against themselves.
This is the case with the Gender Sensitization and Sexual Harassment of Women at Supreme Court (Prevention, Prohibition and Redressal) Guidelines, 2013, as well.
In 2013, the Supreme Court in Binu Tamta vs High Court of Delhi had ordered formulation of regulations against sexual harassment in the Supreme Court, high courts and district courts of India. As a result of this case, the Supreme Court then adopted the 2013 guidelines.
Here too the Chief Justice of India is the institutional authority. Chief Justices must constitute the Gender Sensitization and Internal Complaints Committee (GSICC); receive the annual report; allocate funding; act on the recommendations of the GSICC; and pass interim orders.
The Chief Justice’s orders are final and binding, with the power to set aside or modify any order of the GSICC as he or she ‘deems fit’. The 2013 guidelines thus recognise the Chief Justice as ‘appropriate authority’ to act on sexual harassment allegations and not as respondent.
This leaves a vacuum for a victim and may discourage reporting.
Ad hoc Responses: The 2019 case
The 2019 allegations against Justice Gogoi were instances of the structural problems involved in that case, as many have pointed out (see here and here).
The crux of the matter is that the Supreme Court had no guidelines on what it was doing. It is not that the court acted in an ad hoc manner, it is that it was designed to act in ad hoc manner.
The procedural vacuum means that there could not have been a right-oriented, due process response.
After much protest and criticism, Justice Gogoi himself appointed an in- house committee of the next senior most puisne judges. It was not clear what legal guidelines guided the committee. It seemingly relied on the in-house mechanism but it never explicitly said so. The committee never clarified what is the source of authority of the committee.
The nature of inquiry as per the 1997 internal mechanism is a fact-finding report, not a formal judicial inquiry. It is mainly a report to be communicated to the Chief Justice of India (para 3). This in-house proceeding has been subject of criticism even more broadly.
This means the Chief Justice structurally has even more substantive powers, making reporting and due process even harder.
The preliminary nature of the inquiry also means that a lawyer’s presence can be denied in the proceedings.
The victim in the 2019 case was denied a lawyer ignoring the power differential between the parties. The victim ultimately withdrew from the proceedings.
Within days, the committee found the Chief Justice not liable through an ex parte order. The final report was given to the Chief Justice but not the victim, citing the preliminary nature of the committee. The selective reliance on the rules of in-house procedure was questionable when the procedure itself does not envision its application to a CJI as a respondent.
Can the 1997 procedure be applied to a CJI without any caveats against conflict of interest?
It is not clear why the process for inquiry against sexual harassment should not be in line with the Vishkha guidelines. Vishakha guidelines declared sexual harassment as violation of right to equality under Article 14 and provided for mechanism for redressal against complaints of sexual harassment. There is also no reason why courts cannot be seen as a ‘workplace’ as per the standard definition in the POSH Act.
Where Do We Go Next
There are many ways forward.
For instance, the Women’s Criminal Law Association had suggested modification of the in-house process and establishment of a non-partisan and permanent body to inquire. In many other countries, the judiciary has started a conversation on developing mechanisms against sexual harassment in court.
In Australia, for example, after an allegation of sexual harassment against a former judge by six female associates in 2019, the High Court of Australia commissioned an independent investigation. The investigation made six recommendations including development of supplementary HR policy, canvassing with current associates of judges to find out their experiences of working in the court.
The court further showed acknowledgement of lived experience of women by noting in its statement that, “their(victim’s) accounts of their experiences at the time have been believed.”
The response of the Indian Supreme Court has been complete silence. This piece has no immediate solutions to offer. But all it asks is to be open and accept the need for a change.
The procedural issue here is a structural issue since guidelines against sexual harassment across the world require not only remedies against harassment but also guarantee against re-victimisation.
Currently the likelihood of re-victimisation and discouragement from reporting is possible due to lack of clarity. This requires an honest and open conversation and an institutional attempt to lay down clear protocols and guidelines to be followed in case of allegations against a Chief Justice.
Since 2019 India’s Supreme Court has had four Chief Justices. We have not heard an institutional response or an attempt to change the status quo.
Judicial independence is not a carte blanche. It is best guaranteed, as many have noted (here and here), through transparency and an active effort towards accountability.
(Surbhi Karwa is a PhD candidate at the University of New South Wales-Sydney.)
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