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Mind the legal gap -Upendra Baxi
-The Indian Express


The Justice Ganguly case shows up some lacunae. For one, the sexual harassment act will have to be changed to extend to unpaid interns.

There is immense pressure from women activists, the media and some political parties for retired Supreme Court justice, A.K. Ganguly, to resign as the chairperson of the West Bengal Human Rights Commission for allegedly harassing a young intern. The courage of the young intern in making her alleged violation public has been justly admired; whether she will want to follow up by filing a specific police complaint remains to be seen. And whether Justice Ganguly will decide to quit his new job remains almost entirely a matter for him to decide. Section 23 of the Protection of Human Rights Act, 1983, provides that she or he may be removed from the position by the president if "convicted and sentenced to imprisonment for an offence which in the opinion of the President involves moral turpitude", or if so advised by the SC to be unworthy of the office for the reason of "proven misbehaviour or incapacity".

The SC has, in a non-judicial proceeding, held that prima facie, Justice Ganguly is guilty of sexual harassment, but found that it has no jurisdiction over him or the intern because Justice Ganguly has retired and the intern does not practice before the court. The court also says that, in future, it will not deal with such matters. This has drawn the ire of the Union law minister as well as the leader of opposition in the Rajya Sabha, primarily on the ground that the court as an institution may not withdraw from jurisdiction over such sensitive matters.

What does the law say in this case? Going by the Vishaka judgment or the sexual harassment law of 2013 or the recently appointed SC gender sensitisation and internal complaints committee (GSICC), there was no act of sexual harassment in this instance. This is because the law on sexual harassment defines it as occurring in a workplace environment, and a workplace is one where the employer-employee relationships subsist. The regulation extending only to the precincts of the SC also does not apply in the present situation.

An "intern" is not an employee, nor her guide an employer. However, action can certainly be taken under Section 354 of the Indian Penal Code for "outraging the modesty" of the woman. Under this section, the offence is now made cognisable and non-bailable, and carries the punishment of imprisonment with one year, which may extend to five years and/ or fine.

It is interesting that Judge P. Kevin Castel of the New York district court in the United States, around the same time that Justice Ganguly was being investigated by a court committee, ruled that an unpaid intern was not covered by a law protecting the civil rights of women. The state of Oregon had, in fact, to amend its law to bring interns within its sway. The Indian sexual harassment act passed earlier this year also has to be specifically changed to extend to unpaid interns. Such an amendment may only be prospective, howsoever unfortunate this may be for the present case.

Any person may be proceeded with under the new Section 354A of the IPC, which defines and penalises sexual harassment. If he made "sexually coloured remarks", he may be found guilty of sexual harassment, making him guilty of an offence which carries the punishment of a fine as well as imprisonment of one year, or simply fine or jail. If, however, it was to be found that the accused committed "physical contact and advances involving unwelcome and explicit sexual overtures" or a "demand for sexual favours", he would be liable for punishment for three years of rigorous imprisonment or a fine or both.

However, going by the evidence of the intern, the SC committee opined that what was disclosed was prima facie an act of "verbal/ non-verbal conduct of sexual nature". This finding, if it may be described as such, falls short of a judicial finding under Section 354A. The committee and the court failed to deploy the language of the sexual harassment law or the penal code. The result is that the police, the accused and the defendant will be wise not to rely on the SC proceedings.

It is here that the critique of the court by Kapil Sibal and Arun Jaitley makes some sense. "Some" sense because the GSICC may address gender-based violence within the precincts of the court and the Ganguly committee was set up to decide on "the institution's reputation and credibility" as the allegation was specifically made against a justice of the court. But is the full court's further decision saying that "representations made against former judges of this court are not entertainable by the administration of the Supreme Court" at all justified? What happens to future allegations against past justices whose names are not in the public domain, especially as the court may not, in future, hold preliminary inquiries? Why did it, in the present case, choose to name Justice Ganguly and proceed to find prima facie that he was guilty of harassment? Should the state high courts follow the same procedure? How about district courts and below?

More importantly, what happens when a sitting justice of a high court or the SC is allegedly involved in serious offences against women? The regulation of the SC leaves the question of conduct of sitting judges severely unattended. This may be so partly because technically, judges are not employers or the employed; they occupy a national (constitutional) office and their tenure and qualification is entirely governed by the Constitution. And under Article 124, no justice of the SC (and no high court under Article 218) may be removed for "proven misbehaviour or incapacity" except by Parliament through a motion of impeachment.

Whether the judge could be dealt with under the proposed judicial misconduct bill remains an open question. There is every reason for the court to further hear the public interest petitions pending before it, as well as consult the wider forum of the conference of chief justices to hammer out a consensus on this issue, which can then result in a constitutional amendment prescribing suspension and eventual removal of justices tried for sexual offences by their peers.

The writer is professor of law, University of Warwick, and former vice chancellor of Universities of South Gujarat and Delhi.