(New York) – India’s Supreme Court should ensure that its examination of the sexual harassment complaint against the sitting Supreme Court chief justice protects the rights of the woman who filed the complaint, Human Rights Watch said today. The court’s decision on April 23, 2019 to set up an inquiry committee of three sitting supreme court judges safeguards the independence of the judiciary, but it would deny the woman access to an effective remedy as guaranteed under international human rights law.
Because the case implicates one of the highest authorities tasked with safeguarding the Indian constitution and the rule of law, its resolution will have lasting importance for workplace sexual harassment complaints in India, Human Rights Watch said.
“India’s Supreme Court has a rich history of supporting the principles of equality and nondiscrimination,” said Meenakshi Ganguly, South Asia director at Human Rights Watch. “The court needs to uphold this reputation by setting up a fair and credible inquiry into the sexual harassment complaint and protecting the woman who made the complaint and the witnesses.”
On April 19, a former junior assistant to Chief Justice Ranjan Gogoi filed a complaint with 22 supreme court justices, accusing him of sexually harassing her in 2018. In response, Justice Gogoi convened an urgent three-judge bench on April 20 to hear the matter without notifying her. Justice Gogoi also personally presided over the hearing, reframing the complaint as an attack on judicial independence and rejecting the allegations.
The Indian Supreme Court Bar Association and the Supreme Court Advocates on Record Association criticized the April 20 proceedings and order, saying that they flouted procedure established by law. Other senior lawyers have publicly decried the April 20 proceedings.
The woman’s complaint is detailed in a sworn affidavit with supporting documents. The affidavit outlines not just complaints of sexual harassment, but also recounts a series of subsequent workplace suspensions and dismissals of her and her family members between October 2018 and April 2019, including a new criminal case that police filed against her family in March. Unable to cope with the harassment and fearing for her family’s safety, the woman said, she finally broke her silence to file a complaint.
After the public outcry, Justice Gogoi asked the second senior-most judge, Justice S.A. Bobde, to determine how the Supreme Court should proceed, and he set up the three-judge inquiry committee. One of the committee members, Justice N.V. Ramana, recused himself after the complainant raised concerns that he was a “close friend” of Justice Gogoi.
To ensure that the process is fair and credible, the Supreme Court should consider reconstituting the committee and inviting former eminent supreme court justices and civil society members, including women, to serve on the committee, Human Rights Watch said. Consistent with the United Nations Basic Principles on the Independence of the Judiciary, a complaint against a judge in his judicial capacity should be “processed expeditiously and fairly under an appropriate procedure.”
To ensure that the woman has fair and equal rights to participation in the inquiry proceedings, she should be able to appear before the committee with counsel of her choice. To preserve public faith in the judiciary, Justice Gogoi should consider refraining from official duties until the inquiry is completed.
The court should ensure that the woman, her family members, and witnesses are protected and able to freely testify and participate in inquiry proceedings without fearing retaliation.
In 1997, the Supreme Court passed the historic Vishaka Guidelines, to prevent and respond to sexual harassment in the workplace. Parliament enacted a law governing workplace sexual harassment in 2013. The law creates important avenues for workplace grievance redress of sexual harassment complaints through committees.
In 2017 and 2018, the #MeToo movement in India and globally have highlighted the significant problems victims of sexual harassment face when seeking justice, especially when they complain of harassment by powerful men in the workplace. Victim blaming, intimidation, and the absence of victim and witness protection and support are huge barriers to seeking justice.
“The Supreme Court is one of India’s most powerful institutions and a place of last resort for justice,” Ganguly said. “Whether it upholds the principles of fairness and equality will send a strong message to women who come forward with complaints of workplace sexual harassment in India and beyond.”