Workplace Sexual Harassment Law for India’s Judiciary

The #Metoo movement grew in India with women publicly naming their sexual harassers on various social media platforms. These men worked in varying industries from politics to fashion. This exposed an institutional pattern of sexual harassment at the workplace. To make matters worse, the skewed power dynamics between employees and employers has allowed rich and powerful men to commit acts of sexual harassment with impunity.

Even before the #MeToo movement, there were provisions such as the Vishaka Guidelines that criminalised sexual harassment in the workplace. In Vishaka v State of Rajasthan, the court ruled that sexual harassment violates rights of the women under Articles 14, 15, 19(1)(g), 21 of the Constitution of India. Women deserve the right to carry on any occupation in a secure environment, as well as the right to dignity that comes within the ambit of the right to life. This was later codified in law in the form of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 which mandates the creation of a Complaints Committee constituted by majority female members and led by a woman. Additionally, the involvement of a third party, well versed with sexual harassment concerns, is also an essential part of this committee.

What is the GSICC?

In 2013, the Parliament passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Subsequently, the Supreme Court framed regulations for the protection of women against sexual harassment in the Supreme Court. Under the regulations, the Chief Justice of India is required to constitute a Gender Sensitisation and Internal Complaints Committee (GSICC). It’s objective is to sensitise the public on gender issues and to address sexual harassment complaints within the Supreme Court precinct.

Who may file a complaint?

An aggrieved woman can file a complaint in writing to the GSICC through its member secretary through a notified form. While the definition of an aggrieved women includes women of all ages whether employed or not, it excludes “a female already governed by the Supreme Court Service regulations”. Therefore, female court staffers have to file a complaint under the Supreme Court Service and Conduct Rules, 1961.

Composition of the GSICC

The GSICC includes 7–13 members including:

(i) one or two judges of the Supreme Court;

(ii) one or two senior members of the Supreme Court, with at least 20 years of membership of the Supreme Court Bar Association, to be nominated by the Chief Justice, one of whom has to be a woman;

(iii) one or two members to be elected by General Ballot of the Supreme Court Bar Association who shall be registered members of the Supreme Court Bar Association for at least ten years out of whom at least one shall be a woman;

(iv) one woman member being a member of the Advocates on Record Association, elected by General Ballot of the Advocates on Record Association;

(v) one woman member being a member of the Supreme Court Clerks Association, elected by General Ballot of the Supreme Court Clerks Association;

(vi) up to two outside members (having experience in social justice, women empowerment, gender justice, among others) to be nominated by the CJI. The Regulations require the majority of the members of GSICC to be women;

(vii) one woman officer in the service of the Supreme Court of India, not below the rank of a Deputy Registrar, to be nominated by the Chief Justice of India, who shall function as the Member Secretary of the GSICC;

(viii) any other member that the Chief Justice may deem fit to nominate.

Process of inquiry

If the GSICC is satisfied that the complaint is genuine, it will constitute a three-member Internal Sub-Committee to conduct a fact-finding inquiry into the complaint. This committee will look into the complaint and record statements from both parties. If this Internal Sub-Committee concludes that the allegation has been proved, it will submit its report to the GSICC to pass appropriate orders within 45 days. The report of the sub-committee is to be completed within 90 days of the constitution of the Internal Sub-Committee, and forwarded to the GSICC within 10 days of completion.

If the Sub-Committee concludes that the allegation against the Respondent is not proved then they will not recommend any action to the GSICC. However, if they conclude that the allegations are true then they will recommend that the GSICC take appropriate actions.

If more than two-thirds of the GSICC members differ from the conclusion of the Committee, it will, after hearing the complainant and the accused, record its reasons for differing and pass orders.

The GSICC has the power to: (i) to pass an order of admonition, which could also be published in the court precinct, or (ii) pass an order to prohibit the accused from communicating with the complainant, or (iii) pass any other order to end the sexual harassment faced by the complainant. GSICC may also recommend to the CJI to pass orders against the accused, including: (i) prohibiting entry of the accused into the Supreme Court for up to a year, or (ii) filing a criminal complaint before the concerned disciplinary authority governing the accused.

Appeal process

Any aggrieved person may make a representation to the CJI to set aside/modify the orders passed by the GSICC. The CJI also has the power to pass any orders in order to secure complete justice to the victim of sexual harassment. This should preferably be done within 90 days of the order/recommendation of the GSICC.

Problems with the GSICC and recommendations

This committee is incapable of performing its intended job in the face of allegations against judges. The CJI must endorse any action taken by the GSICC and therefore no claim can be made against him. This problem was first brought up in 2014, by a constitutional bench that appointed Justice Nariman and Justice PP Rao to devise a mechanism to investigate sexual harassment complaints against sitting judges. Unsurprisingly, this never amounted to anything. Thus, currently, there is no fixed procedure in cases when the highest judicial officer of the country is accused of sexual harassment. The only measure of accountability that exists is impeachment of judges under Articles 124(4), 124(5), 217, and 218 of the Constitution of India. These can only apply in cases of proven misbehaviour or incapacity. However, the process is extremely long drawn, requires creation of an inquiry committee and even special majority in both houses, thus consequently no judge has ever been impeached.

An analysis of the provisions proves that a vacuum exists between using in-house procedures to resolve disputes and the extreme procedure of impeachment requiring a mechanism to punish smaller offences or improprieties by Judges. A positive change towards accountability could be the inclusion of a provision to file complaints against sitting judges in the GSICC. The Judges (Inquiry) Act, 1968 does not allow for members of the public to file complaints against the judges and thus the Judicial Standards and Accountability Bill, 2010 has been a suggested replacement. Among other measures to ensure accountability, the bill sets up an Oversight Committee headed by a retired Supreme Court Chief Justice to which members of the public can file complaints against sitting judges. The investigation committee also requires the recording of all inquiries against judges. While this bill may have its faults, it is important to consider a variety of options that will restore the legitimacy of the judiciary as a fair and accountable body.

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Asees Kaur is a student at National University of Juridical Sciences, Kolkata and a member of the Kautilya Society, an initiative of Vidhi Centre for Legal Policy. Views are personal.