india

Updated: Apr 21, 2019 10:22 IST

Allegations of sexual harassment against the sitting Chief Justice of India (CJI) have once again put the spotlight on the lack of a mechanism in the higher judiciary to probe charges of sexual misconduct against serving judges.

Headed by a sitting woman judge, the Gender Sensitization and Sexual Harassment of Women Committee of the Supreme Court inquires into complaints of sexual harassment against employees of the court registry. There is no clarity, however, on a mechanism to deal with cases of alleged misconduct by sitting judges.

As per the current process, any inquiry against a sitting judge can only happen under the Judges Enquiry Act that mandates that only the CJI can constitute a probe panel. Any action to remove the judge concerned can only be initiated if the panel finds him or her guilty. The report is then forwarded to the CJI, who sends the recommendation to the President.

The Constitution allows a judge to be removed only by an order of the President based on an impeachment motion passed by both Houses of Parliament.

In 2014, a panel of two eminent jurists — senior advocates Fali Nariman and the late PP Rao —called for devising a mechanism to provide redressal to those who levelled sexual harassment allegations against sitting judges. A bench headed by the then CJI P Sathasivam had nominated the two to suggest measures on how to deal with complaints of such nature against sitting and retired judges. Present CJI Gogoi was a part of that bench.

Both found flaws with the Gender Sensitization and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations as they did not extend or apply to either sitting or retired judges of the apex court. The regulations were framed only after a law intern in 2013 charged a retired SC judge with seeking sexual favours. However, the top court has taken no steps to include the recommendations in the regulations nor has it made the disciplinary proceedings by the sexual harassment committee transparent, despite this being a common grievance.

The two also opined that incessant sexual harassment of women at workplace, if established, would amount to “proved misbehavior” which would serve as a grounds for the removal of a judge.

“The shield of irremovability from office would not protect them if a charge of sexual harassment at work place were proved against retired judges of the Supreme Court or the High Court managingjudicialtribunals,”the panel had concluded.

Also read | CJI Ranjan Gogoi rejects sexual misconduct charges, says ‘judiciary under threat’

No matter how high the judges are, they are definitely not to be treated as immune from charges of sexual harassment of women at the workplace if and when such a charge is made and proved, the two jurists had said in their report.

SN Singh, former dean of the law faculty at Delhi University, said the regulations of the sexual harassment committee must be changed to include sitting judges. “In case a complaint is lodged the internal panel should not include any judge from the Supreme Court. Senior members of the Bar should be asked to enquire into such a complaint.”

Advocate Vrinda Grover said the former junior court assistant who has levelled allegations against CJI Gogoi has asked for a special inquiry committee comprising retired SC judges to inquire into her accusations. “The SC internal complaint committee comprises members including sitting judges who are all junior to the CJI. The basic rule of any disciplinary proceeding is that inquiry should be conducted by person superior to the defendant. A Special Inquiry Committee would provide a forum for a fair and impartial enquiry and would also protect the independence of the Judiciary,” she said.