Justice in Despair: How India’s judiciary mishandles sexual harassment allegations within its ranks

The Court recognised the gravity of the issue and laid down the landmark Vishaka Guidelines.

Zia Mody, in her book ‘10 Judgements That Changed India’, writes that the Vishaka v. State of Rajasthan judgement was ‘unprecedented’ for several reasons. Among them, the most important was that the Supreme Court provided the first authoritative definition of ‘sexual harassment’ in India and confronted with a statutory vacuum, it went creative and proposed the route of ‘judicial legislation’.

By all assessments Vishaka case marked a watershed moment in India’s legal history, particularly in advancing women’s rights and ensuring safety at the workplace. The case was an outcome of a Public Interest Litigation (PIL) that presented the Supreme Court with an opportunity to provide safeguards and mechanisms to address sexual harassment at the workplace. Seizing this moment, the Court not only recognised the gravity of the issue but also laid down the landmark Vishaka Guidelines, filling a glaring void in Indian labour and criminal jurisprudence. For the first time, the judiciary formally acknowledged sexual harassment as a violation of fundamental rights, thus setting the stage for future legislative reforms, including the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act in 2013.

The apex court acknowledged the fact that “equality in employment can be seriously impaired when women are subjected to gender specific violence, such as sexual harassment in the workplace.”

The guidelines set by the Supreme Court in the Vishaka case were applied in an important case two years later. In Apparel Export Promotion Council v. A.K. Chopra, the Supreme Court upheld the dismissal of a chairman accused of sexually harassing his female secretary by making repeated unwelcome advances. The Delhi High Court had set aside his termination, linking physical molestation as a necessary condition in sexual harassment. The Supreme Court reversed this, affirming that under the broad definition laid down in the Vishaka judgment, physical contact is not a necessary condition for establishing sexual harassment.

Poor institutional mechanism

By recognising the gravity of workplace sexual harassment, giving it a broad definition, and emphasising strict compliance with the Vishaka guidelines, the Supreme Court took a decisive step in establishing an institutional mechanism to address such complaints. Ironically, however, when it came to addressing similar issues within the judiciary itself, the track record has been far less promising.

Following the allegations of sexual harassment made by a former female Supreme Court employee against the then Chief Justice of India (CJI), Ranjan Gogoi, the episode took a bizarre turn that exposed deep contradictions within the judiciary.

Immediately after the allegations surfaced, Gogoi called a ‘special hearing’ and denied the allegations. The ‘special hearing’ ignored the most basic tenet of natural justice that no one can be “judge in his/her own cause”. And it also denied the complainant a fair chance to be heard. Justice Indu Malhotra, who was then heading the Supreme Court’s Internal Complaints Committee, was excluded, along with all other women judges.

As events unfolded, it became increasingly clear that any complaint against a sitting judge was bound to face a series of institutional roadblocks, casting doubt on the judiciary’s ability to uphold accountability within its own ranks.

Gaps on account of faulty design of jurisdiction

When the allegations against the CJI first came to light, the question that was immediately asked was: Why was the complaint not referred to the Supreme Court Gender Sensitisation and Internal Complaints Committee?

The reason for this was that the Supreme Court Gender Sensitisation and Internal Complaints Committee (GSICC) has no jurisdiction over the judges. Any proceedings, when it comes to allegations against judges, are guided by the in-house procedure adopted by the ‘Full Court Meeting’ in December 1999. Also, allegations of misconduct against a judge can be probed into only after the admission of notice for a motion of removal by parliament.

When the in-house committee gave its verdict in Gogoi’s case, stating that it found “no substance in the allegations” made against Gogoi, a few more things became clear. First, as held in the Indira Jaising vs Registrar General, Supreme Court of India & Anr case, the “report of a committee constituted as part of the in-house procedure is not liable to be made public”.

The above-mentioned judgment not only states that the report of an in-house committee is not liable to be made public, but also makes it clear that the “only source or authority by which the Chief Justice of India can exercise this power of inquiry (against a judge accused of any misconduct) is “moral or ethical and not in the exercise of powers under any law”.

Justice delayed is always justice denied

How prompt the judiciary is in dealing with the cases of sexual harassment against its own can be gauged from a case where an additional district judge (ADJ) from Madhya Pradesh had to resign from the service in 2014, after alleging sexual harassment by a sitting judge. The case came to light in 2014 but came for a final hearing in January 2022. It was in February 2022 that the Supreme Court reinstated the woman judge, holding that the petitioner's resignation in 2014 cannot be “considered voluntary.”

In 2023, a deeply disturbing case of alleged sexual harassment involving a senior district judge came to light. A woman civil judge from Uttar Pradesh wrote an open letter to the Chief Justice of India, stating: “Kindly permit me to end my life in a dignified way. Let my life be -DISMISSED.”

In her letter, she wrote: “I have been sexually harassed to the very limit. I have been treated like utter garbage. I feel like an unwanted insect.”

She pointed out that after she filed a complaint with the Internal Complaints Committee (ICC) of the High Court in July 2023, an investigation was initiated. However, she expressed strong doubts about its credibility. She wrote, “The witnesses in the enquiry are immediate Subordinates of the District Judge. How the Committee expects the witnesses to depose against their boss is beyond my understanding.”

She alleged that her plea for basic procedural fairness was also ignored.  “All I requested was that the District Judge be transferred during the pendency of the inquiry. The bare minimum prayer was not heeded to," she wrote.

Last month, a woman judge from Madhya Pradesh resigned after alleging caste-based discrimination by her senior judge. Her resignation came after the same judge — whom she had accused — was appointed to the Madhya Pradesh High Court for a two-year term. It is not anyone’s case to take any allegations at face value. However, the question still arises: why does the judiciary fail to address cases of sexual and other forms of harassment and discrimination against women within its own ranks, with the same seriousness and transparency that it expects from individuals and other institutions facing similar charges?

In cases involving former SC judges A.K. Ganguly and Swatanter Kumar, it became clear that complaints against powerful members of the judiciary often go unaddressed, either due to technicalities or the opaque and rigid legal framework that makes justice elusive for victims.

False sense of institutional honour

In the case where the woman ADJ of Madhya Pradesh had resigned, she later sought reinstatement. As reported by Live Law, Solicitor General of India, Tushar Mehta, appearing for the Madhya Pradesh High Court, urged the bench hearing the case not to allow the petition in exercise of Article 32, as “it would have an effect of stigmatising a prestigious institution and the personnel manning it”.

The woman judge from Uttar Pradesh described the POSH Act as “a big lie” and advised working women to “learn to live with sexual harassment”—a grim indictment from someone meant to uphold the law. This raises a critical question: Should the fear of “stigmatising a prestigious institution” be allowed to come in the way of a fair probe? How can any law guarantee safety when even a judge expresses such despair? While each case must be judged on its merit, the bare minimum is to put in place a mechanism that appears fair and unbiased, because justice must not only be done but also be seen to be done.