Additional Solicitor General Indira Jaising believes that the Supreme Court has behaved like an institution that is concerned about its integrity. In an interview with Akshat Kaushal, Jaising says that Justice A K Ganguly, who has been held prima facie guilty of "unwelcome behaviour", would rise in the people's estimation if he resigned from the West Bengal Human Rights Commission. Edited excerpts:
The Supreme Court's inquiry into the allegations of sexual harassment against Justice A K Ganguly has held him prima facie guilty of "unwelcome behaviour". Yet, it has stopped short of taking any action against the former judge. How satisfied are you?
It is incorrect to say that the Supreme Court (SC) has not recommended any action. They have said no further action is required by them. It does not mean that no further action is required by other institutions too.
Has the SC then lived up to its reputation?
The SC has more than lived up to its reputation. The other question is whether it has behaved like an institution that is concerned about its own credibility and integrity? The answer to that is: Yes, it has.
The court was concerned about its integrity, as he (Justice Ganguly) is a former judge of the SC. And whatever a former judge does impacts the credibility of its court. An ordinary citizen looks up to Justice Ganguly as a judge of the SC, and not as an ordinary citizen. Therefore, it was necessary for the SC to take cognisance of this incidence and arrive at certain prima facie conclusions, which they have done in this case.
Until recently you were questioning the legitimacy of this panel set up by the SC. Now, with a favourable verdict, you see nothing wrong with the panel.
I still maintain that there is no law on the basis of which a judge can be held accountable. Is there a law that can address this issue? No, there isn't. But, the SC has in the absence of the law addressed this issue as an administrative issue. So, I support the administrative action, but it does not mean that there should not be a law on this subject.
Senior members of your bar have warned that you are setting a bad precedent by asking for Justice Ganguly's resignation, when he is yet to be proven guilty.
I believe that the higher the position you occupy, the greater you have to be above any form of suspicion. The principle - innocent until proven guilty - doesn't apply in the realm of constitutional law, in the realm of public law or institutions which [former Chief] Justice Kapadia referred to as "integrity institutions". Also, here, there is not just suspicion but a prima facie case against Justice Ganguly.
I am shocked that in spite of the committee's report, senior members of the bar have maintained that there is no need for Justice Ganguly to resign. They are doing the SC and themselves a great disservice.
You are the only woman of the 20 law officers of the government of India. There are two women judges, out of the 30 judges in the Supreme Court. The statistics in the higher judiciary are completely against the women.
I do believe that women are completely under-represented in the judiciary and the legal profession. This incident [of the sexual harassment of the intern] was so important to me because it can have the effect of further driving women away from the legal profession. In order to make the institution and profession women friendly, the first thing required is to ensure that sexual harassment stops - whether it is by judges or lawyers.
In addition, the judiciary has to seriously take affirmative action to encourage more women to become lawyers and judges. The face of the SC has to be changed from being a male-dominated court to being at least an equal court.
And is this under-representation of women reflected in the judgments of the SC?
Judgments reflect the point of view of the judge writing the judgment. There are judgments by judges that are very cognisant of gender, and there are also those where gender justice is not understood and appreciated. It is also, of course, a historical phenomenon. In the 1950s, you will not find a single judgment that addressed the issue of women equality or violence against women. In the 70s, judgments were critiqued by the civil society since they were not gender sensitive. After that some change has come. But, I believe that currently there is some dialogue going on between civil society and judiciary, which is an unfinished agenda. Globally, too, it is an unfinished agenda.
Do you see reservation for women in judiciary as a solution?
The SC has resisted the question of reservation for women. But, there is a case for affirmative encouragement. This would mean encouraging junior women lawyers, guaranteeing them a place free from sexual harassment, offering them an enabling environment where they can work without any fear.
Currently, only chief justices are made judges of the SC and it is done by the rule of seniority. This needs to change. If the SC and the chief justice find there are women judges in high courts who have proved that they are excellent judges they can be brought to the SC out of turn.
Should this incident of sexual harassment be seen as a one-off case or is it a prevalent phenomenon in the higher judiciary?
We do not have statistics based on which a definitive statement can be made. But, in my opinion, one is too many. This is not a numbers game. Unfortunately, judges enjoy some impunity and until now they felt this is never going to happen to them or they will not be exposed. This time, however, it has been exposed.
What is the ideal future course of action now for Justice Ganguly?
He needs to resign as the Chairman of the West Bengal Human Rights Commission (WBHRC). If he resigns he will rise in people's estimation. If that does not happen then there is a need for presidential reference to the Supreme Court for an inquiry into his misconduct as the chairman of the WBHRC.
You defend the government in court. How do you explain that the government has failed to notify the Sexual Harassment of Women in Workplace (Prevention, Prohibition, Redressal) Act?
The reason it has not been notified is because the government is formulating rules. I agree that there is no point in delaying the framing of rules. Further, in the light of the Justice Verma committee report, this law also needs certain of amount change.
One, the limitation period of three months within which a complaint has to be filed needs to be done away with. Second, a provision of the law says if the woman has made a false complaint then action can be taken against her. But, even in the case of this intern, it took her so long to make a complaint since she feared no one would believe her. Therefore, the clause of false complaint has to be removed. Third, the provision relating to conciliation needs to be taken out too. I hope this delay in notifying the act may have some beneficial effect in changing some of these provisions.
The SC looks more active than ever before. Is this because of Parliament not functioning or judicial activism?
It is neither a fallout of Parliament not functioning, nor is it judicial activism. It is part of changing role of the judiciary worldwide and the debate of the extent to which judiciary can do a merit review of legislation passed by Parliament. So, it is an open question.
The Supreme Court's inquiry into the allegations of sexual harassment against Justice A K Ganguly has held him prima facie guilty of "unwelcome behaviour". Yet, it has stopped short of taking any action against the former judge. How satisfied are you?
It is incorrect to say that the Supreme Court (SC) has not recommended any action. They have said no further action is required by them. It does not mean that no further action is required by other institutions too.
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The SC's response has been forthcoming. Now, it is for the police - since the information is in the public domain - to take notice that a cognisable offence has been committed and ensure that a First Information Report is registered.
Has the SC then lived up to its reputation?
The SC has more than lived up to its reputation. The other question is whether it has behaved like an institution that is concerned about its own credibility and integrity? The answer to that is: Yes, it has.
The court was concerned about its integrity, as he (Justice Ganguly) is a former judge of the SC. And whatever a former judge does impacts the credibility of its court. An ordinary citizen looks up to Justice Ganguly as a judge of the SC, and not as an ordinary citizen. Therefore, it was necessary for the SC to take cognisance of this incidence and arrive at certain prima facie conclusions, which they have done in this case.
Until recently you were questioning the legitimacy of this panel set up by the SC. Now, with a favourable verdict, you see nothing wrong with the panel.
I still maintain that there is no law on the basis of which a judge can be held accountable. Is there a law that can address this issue? No, there isn't. But, the SC has in the absence of the law addressed this issue as an administrative issue. So, I support the administrative action, but it does not mean that there should not be a law on this subject.
Senior members of your bar have warned that you are setting a bad precedent by asking for Justice Ganguly's resignation, when he is yet to be proven guilty.
I believe that the higher the position you occupy, the greater you have to be above any form of suspicion. The principle - innocent until proven guilty - doesn't apply in the realm of constitutional law, in the realm of public law or institutions which [former Chief] Justice Kapadia referred to as "integrity institutions". Also, here, there is not just suspicion but a prima facie case against Justice Ganguly.
I am shocked that in spite of the committee's report, senior members of the bar have maintained that there is no need for Justice Ganguly to resign. They are doing the SC and themselves a great disservice.
You are the only woman of the 20 law officers of the government of India. There are two women judges, out of the 30 judges in the Supreme Court. The statistics in the higher judiciary are completely against the women.
I do believe that women are completely under-represented in the judiciary and the legal profession. This incident [of the sexual harassment of the intern] was so important to me because it can have the effect of further driving women away from the legal profession. In order to make the institution and profession women friendly, the first thing required is to ensure that sexual harassment stops - whether it is by judges or lawyers.
In addition, the judiciary has to seriously take affirmative action to encourage more women to become lawyers and judges. The face of the SC has to be changed from being a male-dominated court to being at least an equal court.
And is this under-representation of women reflected in the judgments of the SC?
Judgments reflect the point of view of the judge writing the judgment. There are judgments by judges that are very cognisant of gender, and there are also those where gender justice is not understood and appreciated. It is also, of course, a historical phenomenon. In the 1950s, you will not find a single judgment that addressed the issue of women equality or violence against women. In the 70s, judgments were critiqued by the civil society since they were not gender sensitive. After that some change has come. But, I believe that currently there is some dialogue going on between civil society and judiciary, which is an unfinished agenda. Globally, too, it is an unfinished agenda.
Do you see reservation for women in judiciary as a solution?
The SC has resisted the question of reservation for women. But, there is a case for affirmative encouragement. This would mean encouraging junior women lawyers, guaranteeing them a place free from sexual harassment, offering them an enabling environment where they can work without any fear.
Currently, only chief justices are made judges of the SC and it is done by the rule of seniority. This needs to change. If the SC and the chief justice find there are women judges in high courts who have proved that they are excellent judges they can be brought to the SC out of turn.
Should this incident of sexual harassment be seen as a one-off case or is it a prevalent phenomenon in the higher judiciary?
We do not have statistics based on which a definitive statement can be made. But, in my opinion, one is too many. This is not a numbers game. Unfortunately, judges enjoy some impunity and until now they felt this is never going to happen to them or they will not be exposed. This time, however, it has been exposed.
What is the ideal future course of action now for Justice Ganguly?
He needs to resign as the Chairman of the West Bengal Human Rights Commission (WBHRC). If he resigns he will rise in people's estimation. If that does not happen then there is a need for presidential reference to the Supreme Court for an inquiry into his misconduct as the chairman of the WBHRC.
You defend the government in court. How do you explain that the government has failed to notify the Sexual Harassment of Women in Workplace (Prevention, Prohibition, Redressal) Act?
The reason it has not been notified is because the government is formulating rules. I agree that there is no point in delaying the framing of rules. Further, in the light of the Justice Verma committee report, this law also needs certain of amount change.
One, the limitation period of three months within which a complaint has to be filed needs to be done away with. Second, a provision of the law says if the woman has made a false complaint then action can be taken against her. But, even in the case of this intern, it took her so long to make a complaint since she feared no one would believe her. Therefore, the clause of false complaint has to be removed. Third, the provision relating to conciliation needs to be taken out too. I hope this delay in notifying the act may have some beneficial effect in changing some of these provisions.
The SC looks more active than ever before. Is this because of Parliament not functioning or judicial activism?
It is neither a fallout of Parliament not functioning, nor is it judicial activism. It is part of changing role of the judiciary worldwide and the debate of the extent to which judiciary can do a merit review of legislation passed by Parliament. So, it is an open question.