What’s good for the goose is...

The Supreme Court, in a landmark judgement on December 18, 2014 Additional District and Sessions Judge ‘X’ versus Registrar General, High Court of Madhya Pradesh  pronounced how sexual harassment cases involving a higher judiciary judge should be handled. The judgement, contrary to the law of the land, is a clear case of judicial overreach. The Supreme Court has the power to provide what is known as “equitable relief”, when a mere legal remedy is inadequate. But that cannot be against the express provision of an Act, especially when that remedy bestows upon the judiciary immunity from the law of the land.

The victim in the case was a district and sessions judge since August 2011. In July 2014, she was transferred to a remote location. As her daughter had board examinations that year, she sought an extension. Her request was rejected and she resigned on July 15, 2014. On August 1, she sent a representation to, among others, the Chief Justice of India, levelling allegations of sexual harassment against a male judge of the Madhya Pradesh high court who had administrative control over her court.

The sexual harassment charges alleged were indeed jaw-dropping. It was imputed that, in December 2013, the accused judge asked her to do an item number at a function, which she refused. Another allegation was that at a function in February 2014, the accused judge made sexist remarks and put his hand on her back. According to the accused judge, the allegations were fabricated. He asserted that the functions were videographed and her demeanour in those videos does not indicate distress.

The victim alleged that the accused judge abused his administrative powers to harass her. She was allegedly subjected to unwarranted inspections by her superiors. Her official comforts were stripped wherever possible and, she alleges, her transfer was the culmination of this victimisation. The high court and the accused judge denied all the allegations. It is their version that her transfer was made by a group of judges and approved by the chief justice of the high court.

Upon receiving her complaint, the chief justice of the Madhya Pradesh high court appointed a two-judge inquiry committee. The petitioner challenged this committee, claiming it to be against the “in-house procedure” prescribed by the Supreme Court to investigate and address all allegations against judges of higher judiciary. Her argument was upheld by the Supreme Court on December 18. In the judgement, it was held that the “in-house procedure” was binding even for inquiring sexual harassment allegations against a high court or Supreme Court judge. Such an inquiry, if against a high court judge, may have up to seven steps.

First, the chief justice of the appropriate high court shall personally look into the complaint. It is discarded if he feels it to be frivolous. If not, the response of the accused judge is sought as step two. If the chief justice of the high court does not find the allegation baseless, he shall forward it to the Chief Justice of India, as step three. If the Chief Justice of India finds it necessary to go ahead, he shall constitute a three-member committee comprising two high court chief justices from other jurisdictions, as step four.

The report of the committee is step five. If found guilty, the accused judge shall be advised by the Chief Justice of India to voluntarily retire. If that judge is unrelenting, the Chief Justice of India shall advise the chief justice of the high court not to allot any judicial work to that judge in step six. In step seven, against that unrelenting judge, the Chief Justice of India recommends impeachment.

On plain reading, the approach of the Supreme Court in entertaining allegations against a member of the higher judiciary is bold and laudable. But this seemingly bold approach is laden with a deeper agenda. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, came into force in December 2013. Before that, the Vishaka Guidelines 1997 a judge-made law to fill legislative vacuum occupied that field. The complaint of this victim is a textbook case of sexual harassment under the 2013 Act. Then why did the Supreme Court ignore the 2013 Act, and instead opt for the “in-house procedure”? Why didn’t the victim file her complaint under the 2013 Act?

A complaint under the 2013 Act has to be made within three months of the incident. In exceptional cases, the Act speaks of extending the time limit by another three months.  Her first sexual allegation, pertaining to the item number, was of December 2013. But she made the allegation in August 2014. She was, thus, terribly late. As an additional district and sessions judge and the president of the Vishaka Committee for those courts, she was not a commoner. Perhaps, her motive in raising the allegation was not mere justice under the 2013 Act. She wanted reinstatement. That was her second prayer before the Supreme Court.

Failure of the Supreme Court and the respondent high court to usher her to the 2013 Act is of greater importance. By this they insulated the higher judiciary from the 2013 Act. Had the Supreme Court judgement discussed the 2013 Act and held it not applicable to the judiciary, there would have been hue and cry. To avoid that, perhaps, they talked only about the “in-house procedure”.

The “in-house procedure” was adopted by the Supreme Court only in their administrative capacity. Does it override a valid enactment made by Parliament? If yes, why was the 2013 Act invoked against a former judge of the Supreme Court last year, when a former intern levelled sexual harassment allegations? Paragraph 33 of the judgement concerning the victim district judge specifically notes that the procedure adopted by chief justice of the Madhya Pradesh high court was wrong as it was not opted for any inadequacy noted in the “in-house procedure”. If the same reasoning is used to choose between the 2013 Act and the “in-house procedure”, which shall survive?

Through this litigation, the judiciary as well as the victim have managed to attain indirectly what they could never have accomplished directly. A litigant taking a road less travelled by is not something new. But for the Supreme Court, which has all the power to declare the law of the land, this self-serving departure is not a matter to be proud of. Even if there is a conflict between the law and the so-called equity, it is the law which has to prevail. Equity can only supplement the law; it cannot supplant or override it.

The writer is a research scholar at National Law University, Jodhpur, and the CEO of ArthaSasthra Ventures (India) LLP