Women against Sexual Violence and State Repression (WSS) is deeply anguished by the incident of sexual harassment of a Gwalior additional district judge by a judge of the Madhya Pradesh High Court which came to light on 4th August 2014 and is outraged by the fact that the complainant has had to resign from her job in the face of continuous persecution by the High Court judge in question (who was the administrative judge of her district) and the conspiracy of silence of his brother judges, including the Chief Justice of Madhya Pradesh High Court.
The fact that the complainant heads the District Vishakha Committee against sexual harassment is an indicator of the alarming gaps in the way the Sexual Harassment of Women at Work Place Act, 2013 is being implemented in the country in general, and the judiciary in particular.
WSS is deeply concerned by the reports that the CJI has declined to suo moto form a three-member committee to probe into the allegations, that govern the code of conduct of judges and has reportedly said “First, there must be a prima facie case against the High Court judge. This could be verified only by the High Court Chief Justice. As and when we get a report from the Chief Justice after initial probe, constitution of the three-member committee can be considered.” The CJI should have constituted the committee not only because the Restatement of Values of judges contemplates it but also because the complainant has alleged in her resignation letter that the Chief Justice of Madhya Pradesh High Court refused to meet her when she had applied for an appointment to discuss her persecution at the hand of the accused High Court judge and the district judge.
WSS also feels that accepting the resignation of the complainant judge at this stage would amount to constructive termination since she has stated in no uncertain terms that she resigned under duress.
This is not an isolated incident. The last year was marked by two law interns coming forward with their complaints against two retired judges of the Supreme Court of India, Justice A.K. Ganguly and Justice Swatanter Kumar respectively. It is important to remember that to every reported incident, there are many more which go unreported.
On December 5, 2013 a committee of three sitting Supreme Court Judges decided not to entertain complaints against retired judges. The complainant in Justice Kumar’s case moved to the apex court on January 13, 2014 challenging this decision. The court fixed January 15 as the next date of hearing and on the very same day Justice Kumar moved the Delhi High Court and obtained a gag order against any future coverage of the incident or of the said case. Incidentally, Justice Kumar practiced in the Delhi Court in his earlier avatar as a lawyer and has also been a judge of the same court. A petition has been filed in the SC praying to transfer the case filed by Justice Kumar to Supreme Court on the ground of bias.
WSS notes that sexual harassment in the judiciary is a very serious and systemic problem which is in part due to the failure of the Supreme Court to implement its own landmark judgment of Vishakha vs. State of Rajasthan and to ensure its implementation by all the High Courts and subordinate courts of the country, the current process of appointment of judges which does not include an appraisal of their performance on the question of gender, caste and religious bias, an opaque and tedious process of removal of the judges of the higher judiciary and of course patriarchy, which leaves nothing untouched, including the judiciary and the Indian legal system.
The onus is on the judiciary to ensure that its members do not flout the law of the land with impunity and to send a strong message to the country that the perpetrators of crime against women shall not remained unpunished, especially since it is the duty of the judiciary to uphold the rule of law and to protect the rights of the weaker sections of the society.
WSS stands in solidarity of the complainant judge in her quest for justice and raises the following demands:
1. We urge the Parliamentarians to initiate the impeachment proceedings towards the removal of the judge in question.
2. We also appeal to the Chief justice of India to initiate his own enquiry into the allegations and to make sure that no work is assigned to the concerned High Court Judge pending a decision of the enquiry.
3. We appeal the Madhya Pradesh High Court not to accept the resignation of the complainant judge and to confer another appropriate and meaningful assignment to her.
1.We urge the Chief Justice of India to set up immediately and in accordance with Vishaka, permanent internal complaints committees with the mandatory presence of external members on it and once set up to transfer all complaints against sitting and former judges for enquiry.
2. The time has come to rethink the whole system of appointment of judges by providing a transparent, methodical and objective system of selection through a full-time selection committee. Similarly, it has become imperative to have accountable bodies which are independent of the government and the judiciary and can transparently examine and deal with complaints against judges.
3. There should be a periodical appraisal of the performance of the judges on the question of gender, caste and religious bias.
On behalf of WSS
Kalpana Mehta, Kalyani Menon- Sen and Shivani, National Convenors