Crossing the Vishaka bar

In 1997, the Supreme Court broke new ground for women’s rights by setting out explicit guidelines requiring organisations to set up sexual harassment complaints committees. In 2013, these guidelines, known as the Vishaka guidelines, morphed into an Act that virtually replicated those rules with some modified definitions and procedures. In 2019, the apex court appears to be setting new trends in handling sexual harassment complaints in the workplace — and little of it is reassuring for working women.

As a beacon for tackling the vexed question of sexual harassment complaints against powerful organisational heads, the Supreme Court also holds out dim hope so far. There are two prominent cases involving organisational chiefs currently in the courts — against Tehelka magazine editor and promoter Tarun Tejpal, and against R K Pachauri, director-general of the respected environmental think tank TERI. In the first case, the trial began in February last year though the complaint was made in 2013. In the second, which came to trial earlier this year on a complaint filed in 2015, the complainant has moved an application for expunging her name from an order passed by the lower court. Which is to say, she is asking the court to follow the law that requires anonymity for victims of sexual harassment and assault.      

The handling of the charges against the Chief Justice of India (CJI) would have proved an invaluable opportunity for the apex court to set out the guardrails for the functioning of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, colloquially known as the POSH Act. So far, there have been scant signs of them

True, the complainant did not follow procedure. Doing so would have required her to file her complaint before the Supreme Court’s internal complaints committee, not, as she did, before the CJI’s colleagues. But consider the anomaly here: The CJI’s permission is required to proceed with any complaint. It is possible that the complainant doubted that the CJI would voluntarily sign off on serious charges against himself.

He justified her apprehensions wh­en he unilaterally constituted a three-member special bench comprising himself and two other male judges to protest his innocence and integrity. Why should he do this when he had not been pronounced guilty by any formal enquiry committee? After all, no matter how sensational, these are still the unproven allegations of just one employee.

Nor was the complainant called upon to parry his various counter-accusations. Instead, his brother judges obligingly swallowed his (non) explanation and passed an order referring to “wild and scandalous” allegations — but without acknowledging the CJI’s presence on the bench.  For a judge who had displayed extraordinary moral courage just last year by participating in that memorable press conference to highlight procedural irregularities by then CJI Dipak Misra, this was unusual conduct by any yardstick.

After a barrage of criticism, including from senior lawyers (male and female), a committee was constituted. Did this conform to the POSH Act? That is, did it have a senior woman as presiding officer, at least two women members and an external member, preferably from an NGO or an association representing women’s rights? No, instead the committee had two male judges and one female judge. When the complainant pointed out that this composition did not conform to the law, one male judge was replaced by a female judge. External member? Still none.

Two hearings in, the complainant chose to withdr­aw from the enquiry committee saying she was not allowed to have a lawyer present and was not informed of the procedure. Her complaint is a long one (including, oddly, that the proceedings were not recorded), but let’s look at a couple of salient points. First, should she have been allowed her lawyer during the enquiry (she claimed a hearing disability and general nervousness to justify this request)? The POSH Act is silent on this. Given that she is up against an array of officials who report to the CJI, minimum ethics dictated that her request should have been granted. Second, should the committee have admitted her application to take on board call records, WhatsApp messages and chat re­­co­rds from designated mobile numbers? Recall, her complaint stated that the CJI had asked her to delete so­me of these. The Act says the committee has the po­wer to require the discovery and production of documents.

But here’s the strangest thing: The complainant says the committee informed her that it was neither an in-house committee nor a proceeding under Vishakha (which would have given it the powers of a civil court), but an informal proceeding. To what end? How was it independent of the CJI?

The general disquiet over the Supreme Court’s approach to this landmark controversy has been strong enough for over 250 women, from rights groups, lawyers and feminists to issue a joint statement last week de­manding an independent enquiry perhaps headed by a former CJI and for the incumbent to step aside from his duties while the investigation is underway. The in­tegrity of the Supreme Court depends on such a course.