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How to deal with the complaint of sexual overture in Supreme Court

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A recent complaint of sexual harassment by a former woman employee of the Supreme Court against CJI Gogoi and the institutional response so far, echoing the line about independence of the judiciary, has been much frowned upon. The CJI gave a fairly detailed rebuttal saying that the lady has a criminal background – she was in custody after accepting Rs.50,000 from a person on the assurance that she would find him a job at the Supreme Court. He added that her husband was making calls to the office of the CJI, demanding that his wife be re-instated or else…Yet, the urgency with which the matter was taken up on the judicial side, hurriedly heard by a bench which included the CJI himself but no woman judges, where the CJI held forth against the complainant without including his name in the judicial order has raised legal eyebrows.

In this connection, the chairman of the Bar Council of India has opined that these are all false allegations and an attempt to malign the institution; entire bar is standing in solidarity with the CJI. Lawyers Gautam Bhatia and Ashish Goel have condemned this support of the Bar to the CJI.

Earlier a lady intern had accused Justice Ashok Kumar Ganguly on Feb 2, 2012 of harassing her sexually. The Supreme Court then appointed a three-member committee to probe the allegations and identified A K Ganguly as the one who harassed her. He repeatedly denied all charges. He was indicted on 6 December 2013 by the committee, which agreed with the intern’s allegation that he had subjected her to “unwelcome sexual behaviour” in December 2012. He resigned from the West Bengal Human Rights Commission on 6 January 2014 after the Union Cabinet decided to make a Presidential Reference on 2 January 2014 to the Supreme Court for his removal. But the intern never recorded her statement before the police and once he had been eased out of the post of Chairman, WBHRC, the case just fizzled out. The woman was not acted upon for foisting false charges.

When an employee complains that he or she is experiencing sexual harassment of any type, the employer has a legal, ethical, and employee relations obligation to thoroughly investigate the charges.

Pursuant to the relevant provisions of the Act, an Internal Complaints Committee (ICC) has to be constituted to effectively deal with complaints pertaining to the same and the redressal process should be broadly following the organization’s policy relative to sexual harassment and the course of natural justice.

Ideally, the judiciary should tackle the matter head on and provide the employee all means to fight her case by ensuring that due process is followed. Now, the question is whether this allegation can be construed to be a personal attack on Justice Gogoi or an attack against the institution of judiciary. If there is the hand of some other external and more powerful force in this matter, and it is found that the employee was just being used as a scapegoat, then it is an attack against the institution of judiciary. Also, then, that entity should be clearly recognized and suitably admonished/punished but care should be taken while dictating the punishment to the employee.

The writer has been a long-standing commentator on contemporary issues

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