On January 12, 2018, four senior judges of the Supreme Court, including Justice Ranjan Gogoi, had warned that unless the institution was preserved, “democracy will not survive” in India. On Saturday morning, Chief Justice of India (CJI) Gogoi said the allegations of sexual harassment against him were part of a wider attempt to undermine the independence of the judiciary and to “deactivate” the office of the CJI.
The second major crisis in the fraught recent history of the Supreme Court of India has pushed the institution into uncharted waters — again.
This time, however, the institution has a compass: the Gender Sensitisation and Internal Complaints Committee (GSICC) of the court, headed by Justice Indu Malhotra, is empowered to deal with cases of sexual harassment on the Supreme Court’s premises.
And like in January last year, all eyes are on the Supreme Court again, watching out for the institutional response that it comes out with.
The regulations on sexual harassment at the Supreme Court do not explicitly lay down the procedure to be adopted when a complaint is received against the CJI. The regulations are, however, clear that an inquiry can be carried out against “any complaint in the Supreme Court precincts”.
The Gender Sensitisation and Sexual Harassment of Women at the Supreme of India (Prevention, Prohibition and Redressal), Regulations, 2013 is the comprehensive code for redressal of complaints of sexual harassment reported within the premises of the Supreme Court. The GSICC, which has 11 members currently, has the power to pass “any orders to able to carry out objection and mandate of the present regulation including directing any party or person to take an suitable action”.
The regulations are legally on a higher pedestal as compared to The Judges Inquiry Act, which states that sexual harassment results in the violation of fundamental rights of a woman under Articles 14 & 15, and her right to life and to live with dignity under Article 21 of the Constitution. Under the Regulations, “any member of GSICC may at any time request the chairperson to call an emergency meeting with a notice of 48 hours”.
However, the Committee requires the permission of the CJI to implement certain directions, including filing of a criminal complaint, and in a situation where the aggrieved person wants to challenge the order of the GSICC.
When a complaint is filed, and upon being satisfied with regard to the genuineness of the complaint, the GSICC constitutes an internal sub committee (ISC) to conduct a fact-finding inquiry. The ISC, after conducting an inquiry, prepares a report within 90 days and, if the allegations are proved, recommends to the GSICC to take appropriate action.
The GSICC then passes an order either accepting or rejecting the ISC’s inquiry report within 45 days. It has the power to admonish, prohibit all manner of communication with the complainant, and to pass “all orders” taking steps necessary for putting an end to the sexual harassment of the aggrieved woman.
The GSICC can also recommend to the CJI to pass orders against the respondent “including, but not limited, to the following”: debarment of entry into SC for a specified period extending upto a maximum period of one year, and to recommend filing of a criminal complaint for taking appropriate action.
The regulations do not mention what the procedure will be if the CJI himself is the respondent.
Also, when any person is aggrieved by the order passed by the GSICC, or due to the non-implementation of such orders, he/she “has to make representation before the CJI”, who has the powers to “set aside or modify the orders passed”. The CJI also has the power to issue such “orders or directions that may be necessary to secure complete justice to the victim of sexual harassment”.
Again, in these circumstances, no alternative is provided if the CJI himself is the respondent.