Without getting into the nitty-gritty of the allegations against the CJI, it is imperative that an impartial hearing, based on settled principles, be held. However, by not providing for just representation of women in the enquiry committee, the court has undermined the POSH Act

On April 19, a complaint of sexual harassment against the Chief Justice of India Ranjan Gogoi (CJI) was sent to the Residence(s) of 22 judges of the Supreme Court of India, along with an affidavit and other supporting evidence. The complainant had asked for the constitution of an inquiry committee of senior retired judges to investigate and adjudicate on the serious allegations of sexual harassment. 

Under the Indian law, complaint(s) of sexual harassment at the workplace are required to be addressed in accordance with the procedure, as established under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act). The Act mandates that every organisation — with more than 10 employees — must set up an Internal Complaints Committee (ICC), comprising at least four members and 50 per cent of them should be women. Further, it also states that the presiding officer of the ICC should also be a woman. 

Thus, the spirit of the POSH Act lies in providing women greater representation in the inquiry committee and in including an external member on the board to ensure transparency and fairness.

The Supreme Court has constituted an ICC and also framed The Gender Sensitisation & Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations 2013, to investigate the complaints of sexual harassment.

However, in gross violation of the procedure as established by the law and in absolute negation of the ‘rule of law’, the Supreme Court on April 20, held a suo moto hearing of the complaint. The Bench comprised three male judges, presided by the CJI himself.

On acute criticism by various lawyers and Bar Association(s) of the suo moto hearing held by the apex court, on April 23, a special Bench comprising three male judges issued notice to a lawyer, Utsav Bains, who claimed that a man had approached him to file a false case of sexual harassment against the CJI. However, no investigation was instituted to examine the veracity of the complaint of sexual harassment. 

Then in a series of surprises, the top court constituted a new Bench on April 23, comprising two male and a female Supreme Court judges to examine the complaint of sexual harassment against the CJI. This Bench issued notice to the complainant on April 24 and directed her to appear before the Bench on April 26, that is today.

In setting up a predominantly male Bench, headed by a male judge (even though there are three sitting women judges at the Supreme Court) the court has side-stepped and corroded the sanctity of the predominantly women-led ICC.

Undoubtedly and inherently, a reason exists for POSH to insist on a committee led by a woman with them being in majority. This, to provide an environment conducive for a woman to speak freely and fearlessly about a sexual assault on her physical body. Presence of women members in majority can ease, facilitate and enable them to speak about incidents that outraged their soul.

It is fearsome and intimidating for them to express about unwanted physical contact by men in authority before strange men. Ask any woman — no matter how rich or powerful, educated or illiterate — whether they would be able to explain the gory and graphic details of the violence committed before strange men. 

To facilitate, enable and create a conducive environment — where victims are encouraged to speak freely in the presence of other women — POSH insists on this specific composition which must necessarily be strictly and scrupulously adhered. Any breach would only further perpetuate injustice.

In not providing more representation to women in the committee and by not including an external member, the Supreme Court has undermined the sanctity of the POSH Act.

The apex court has been the torch-bearer of women’s right to equality and safe spaces. The court itself laid down the Visakha Guidelines in 1997 to protect women against sexual harassment and abuse at workplace. Even thereafter, it took almost 15 years for the POSH law to be enacted.

The POSH Act is unique. This progressive and welfare legislation cannot be permitted to be undermined lest Indian women lose their right to safe work places.

Without getting into the merits of the allegations levelled against the CJI, it is imperative that a fair and impartial hearing of the matter be conducted that is based on the settled principles and the procedure established by the law. This is a sine qua non for upholding the rule of law.

Looking at the gravity of the complaint at hand and in keeping with the spirit and objectives of the POSH Act, the Supreme Court must lead by example and ensure that the presiding officer and majority of the members of the inquiry committee are women. Further, the board must include external member/members as well.

It is incumbent on all citizens of India, especially women, to voice their concern on side-stepping of the women-led complaints committee in a matter of sexual harassment.

If we choose to remain quiet on this grave violation of principles of natural justice and the procedure established by the law, it will send the Indian women back to decades. The spirit and sanctity of the POSH Act must be fiercely protected, preserved and prevented from being reduced to a mockery.

(The writer is an advocate)