In the recent past, in the wake of the #MeToo movement, no less a person than the Union Minister of State for External Affairs, had to step down because of allegations of sexual harassment against him, pertaining to incidents which happened many years ago. This time, the Chief Justice of India was in the eye of a storm. He was accused of sexual harassment. On April 20, a complaint of sexual harassment was submitted against the Chief Justice of India by a woman who had been employed in the Supreme Court as a Junior Court Assistant.Her complaint contained detailed averments on a sworn affi davit along with corroborating materials including phone logs, video recordings, etc. that supported her allegations of sexual harassment, and asked for an external inquiry into the allegations by retired judges of the Supreme Court.What followed thereafter has been a complete travesty of procedural and substantive justice. ?

BACKGROUND:

• Before one analyzes the current incident, it gets pertinent to explore Vishaka guidelines and The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Vishaka judgment (Vishaka guidelines):

• The guidelines date back to 1997 when the Supreme Court laid them down while passing judgment in a public interest litigation fi led by Vishaka and other women’s rights groups over the infamous Bhanwari Devi gang rape case.
• Bhanwari Devi, a social worker from Rajasthan had in 1992 prevented the marriage of a one-year-old girl, inviting wrath of the villagers. The gang rape was allegedly an act of revenge.
• Hearing the PIL, the apex court took note of the fact that the civil and penal laws of the time did not adequately provide for specifi c protection of women from sexual harassment at workplaces, and made it legally binding for employers to observe some guidelines to ensure prevention of sexual harassment of women.
• Prohibition, prevention, redressal — these were the three key obligations that were imposed on institutions as the guidelines defi ned sexual harassment at workplaces.
• The Supreme Court said every organization must set up an internal complaints committee or ICC to look into matters of sexual harassment of women at the workplace.

What constitutes sexual harassment at workplace?

• Physical contact and advances
• A demand or request for sexual favors
• Sexually coloured remarks
• Showing pornography
• Any other unwelcome physical, verbal or nonverbal conduct of sexual nature.

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (focus will be on the Complaint mechanisms under the 2013 Act):

• According to the Act, the complaint of sexual harassment has to be made “within three months from the date of the incident”.
• If such incidents have taken place over a time, the complaint should be made within three months from the date of the last incident.
• However, the ICC has the discretion to “extend the time limit” if “it is satisfi ed that the circumstances were such which prevented the woman from fi ling a complaint within the stipulated period”.
• The ICC needs to record these reasons to exercise the right.
• The Act contemplates the constitution of Internal Complaints Committee (“ICC”) (Sec. 4) at the work place and Local Complaints Committee (“LCC”) at district and block levels (Sec. 6).
• A District Offi cer (District Collector or Deputy Collector) shall be responsible for facilitating and monitoring the activities under the Act every workplace employing 10 or more employees is required to constitute an ICC.
• The ICC is required to consist of at least four members, and its presiding offi cer is required to be a woman employed at a senior level.
• Provisions have been made in case no senior woman employee is available, to nominate a woman presiding offi cer from another offi ce, administrative unit, workplace, or organization.
• Further, one half of the members must be women. LCCs are to be set up by the appropriate government which shall receive complaints in respect of establishments that do not have ICCs on account of having fewer than 10 employees and to receive complaints from domestic workers.
• Before initiating an inquiry, the ICC or LCC may, at the request of the aggrieved woman, take steps to arrive at a settlement between the parties. However, no monetary settlement can be made as the basis of such conciliation.

Duties of an Employer :

The Act makes it the duty of every employer to:

• provide a safe working environment at the workplace which shall include safety from all the persons with whom a woman comes into contact at the workplace;
• display at any conspicuous place in the workplace, the penal consequences of sexual harassment and the order constituting the ICC;
• organize workshops and awareness programmes;
• provide necessary facilities to the ICC for dealing with complaints and conducting inquiries;
• assist in securing the attendance of the respondent and witnesses before the ICC;
• make available such information to the ICC or LCC, as it may require;
• provide assistance to the woman if she so chooses to fi le a criminal complaint;
• initiate criminal action against the perpetrator;
• treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct; and
• monitor the timely submission of reports by the ICC. ?

ANALYSIS :

On what grounds, are the allegations levied?

• In 1997, in the Vishaka case, the SC laid down that a committee inquiring into allegations of sexual harassment at the work place should be headed by a woman, and not less than half of its members should be women.
• This was not adhered to by the Panel of enquiry setup to validate the claim.
• To rule out pressure or infl uence from senior levels, the Court directed that such a committee should comprise a member from a third party. This was not followed either.
• The panel was set up under the SC’s own procedure to examine whether the allegations warranted an inquiry.
• The intention behind adopting this procedure is to protect judges from motivated and false allegations.
• By the same logic, many other organizations and institutions may adopt their own set of procedures on the plea that a non-internal inquiry may bring into disrepute not only the individual concerned but also the institution itself.

The complainant has suffered on two counts

• The in-house panel was not constituted as per the law
• The complainant was not allowed the assistance of a lawyer.

What was the actual working of the inhouse panel?

• The committee, which comprises Justices Indira Banerjee and Indu Malhotra, has been holding hearings on a daily basis from Monday.
• On the third hearing on April 30, the complainant refused to further participate in the ‘informal’ proceedings.
• She issued a press statement that said one of the reasons for her withdrawal was that the panel refused her request to have a lawyer or a support person accompany her during the hearings.
• The “in-house procedure” presided over by three senior judges – Justices S.A. Bobde, Indira Banerjee and Indu Malhotra – did not follow the guidelines of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
• The three senior judges chose to not share the committee’s fi nal report with the complainant although it gave a copy of it to the CJI, who is an accused in the matter.
• The Indian judiciary is as much a part of this democracy as other organs of the Government.
• With all State action being subject to public scrutiny under the Right to Information regime, it is unclear how the judiciary is claiming the moral high ground to be above this regime.
• Further, the Committee has not provided any justifi cation for not supplying a copy of the same to the Complainant, which is a basic tenet of natural justice.
• There is no recourse available to the Complainant against the alleged report of this Committee except to once again approach the same Supreme Court that has failed her.
• The Supreme Court must provide for an avenue o appeal the fi ndings of the ‘Inquiry’ before a committee of external persons, preferably retired judges of the Supreme Court.
• In Addl. District & Sessions Judge ‘X’ v. High Court of M.P., the Supreme Court has explicitly held “that those who are liable to be affected by the outcome of the “In-House Procedure”, have the right to seek judicial redressal, on account of a perceived irregularity.
• The irregularity may be on account of the violation of the contemplated procedure, or even because of contemplated bias or prejudice. It may be on account of impropriety.
• The challenge can extend to all subjects on which judicial review can be sought.

What happens to the ‘victim’ if her complaint is found to be false?

• Section 14 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act deals with false complainant.
• If the ICC fi nds the complaint to be false, the Act says, it may recommend action against the woman or the person who has made the complaint.
• The Act, however, makes it clear that “a mere inability to substantiate a complaint or provide adequate proof need not attract legal action.
• Also, no action can be recommended against the complainant unless an inquiry establishes malicious intent on part of the complainant.