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Silenced Voices: Unveiling the Shadows of Sexual Harassment in the Halls of Justice- A Critical Analysis of Sexual Harassment Regulations for Women in Indian Judiciary

Articles , ,

“I wish to tell all the working women in India: Learn to live with sexual harassment. It’s a truth of our lives. The POSH ACT is a big wholesome lie told to us. No one listens, no one bothers. If u complaint, you will be tortured. Be submissive. And when I mean no one listens, that includes the Supreme Court. You will get 8 Seconds of hearing, an insult and a threat to impose costs. You will be pushed to commit suicide. And if you are lucky (unlike me) your first attempt at suicide will be successful. If any of the women think that you’ll fight against the system, let me tell you, I couldn’t. And I am JUDGE. I could not even muster a fair inquiry for myself, Let alone JUSTICE. I advise all women to learn to be a toy or a non-living thing.” [1]

These are the horrifying words of a learned Civil Judge from UP which recently came into the news as a shocker for the entire legal fraternity, what’s even more shocking is that the Hon’ble Ladyship prays to CJI to give her permission to end her life as she has been living a life of a walking corpse from the past one and a half year, been subject to sexual harassment by one of a district judge and his associates, and it took her 6 months and thousand emails just to start an inquiry against them which was also biased and then when she approached the Hon’ble Supreme Court her writ petition was denied within 8 Seconds.

ABSTRACT

The abovementioned news came as a concern to analyze the Workplace Harassment Mechanisms in Indian Judiciary; the present Article navigates the applicability of the POSH ACT within the Indian Judicial system (focusing on District Courts and HCs) for combating sexual harassment and their implementation and effectiveness on the ground level.

INTRODUCTION

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 famously known as the POSH Act is an Act to provide protection against sexual harassment of women in the workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto.[2] Section 4 of this act provides for the constitution of the Internal Complaints Committee which is a body that is constituted within an organization to address and resolve complaints of sexual harassment. In 2013, when the POSH Act was passed, at a similar time in the case of Ms Binu Tamta & Anr. v High Court of Delhi & Ors, Writ Petition (Civil) no 162 of 2013 the supreme court upheld the formulation of “The Gender Sensitisation & Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal), Regulations, 2013[3] and directed to form a GSICC i.e. Gender Sensitisation and Internal Complaints Committee to sensitize the public on gender issues and to address sexual harassment complaints within the Supreme Court precinct.[4] The Supreme Court directed every high court and district court to frame its own regulations similar to the GSICC.[5] Various district courts and high courts have also passed orders from time to time to form such committees provided under Section 4 of the POSH Act.

INTERNAL COMPLAINTS COMMITTEE IN DISTRICT COURTS AND HIGH COURTS

Karnataka High Court passed an order dated 18th October 2019 to form two Internal Complaints Committees, one for the members of judicial services and one for other staff of the High Court. Those committees are usually constituted by assembling 4-5 senior members which are mostly senior judges, registrar general of the high court, Directors of Judicial Academy, Additional Government Advocates, Directors of the mediation centers, and others.[6] Similarly High Court of Allahabad also has its Internal Complaints Committee consisting of 09 Members, which includes 04 lady Judges and one retired lady Professor of the University of Allahabad, The Committee looks into the complaints of sexual harassment of women at the workplace against the officers/ employees and Advocates of the High Court and Judicial Officers of the U.P. Judiciary.[7]

District Court in Pakur, Jharkhand also has its own ICC which was formulated in 2023. Through these Committees, a woman who has been sexually harassed at work has the opportunity to file a complaint with the Internal Complaints Committee (ICC) within three months of the incident. In accordance with the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Rules, 2013, if the victimized woman is physically incapable of filing a complaint, it may be submitted, among other people, by her friend, relative, coworker, or any other person who knows about the incident, with the victim’s written consent. Upon submission, a complaint will be forwarded straight to the Internal Complaint Committee (ICC) for investigation. The ICC will start the process of mediating a settlement through conciliation at the request of the women who have been wronged. After the complaint is settled, copies of the recorded settlement will be given to the respondent and the aggrieved ladies, and no more investigation will be carried out. If the respondent is an employee, the Internal Committee will investigate the complaint in accordance with the applicable Service Rules. If no such Rules are in place, the ICC will forward the complaint to the police for registration under section 509 IPC within seven days of receiving it. When the internal committee determines that the allegations against the respondent are true, as the case may be, it will suggest that appropriate action be taken, including providing the respondent with the service rules that apply to them and deducting any salaries or wages that they may be entitled to. If the internal committee determines, after considering the circumstances, that the complaint is untrue or that the complainant has produced any false or deceptive statements or documents, it may suggest to the higher authority that the proper course of action be taken.[8]

ANALYSIS OF THE GROUND-LEVEL IMPLEMENTATION OF ICC IN DISTRICT AND HIGH COURTS AND THEIR EFFECTIVENESS IN GRIEVANCE REDRESSAL

As aforementioned all of this looks perfect on paper and shows that there is a sufficient mechanism for protecting the women working in the legal arena, lady judges and advocates, from sexual harassment at their workplace, however, the reality is a little different, many district courts doesn’t have such committees till date and even all those district and high courts which have such grievance redressal committees are mostly non-functioning, like in this present case it took the Civil Judge UP, 6 months and several emails to get a inquiry started in the Allahabad HC and even after that she complaints that she couldn’t get herself a fair trial, as the institution will always protect its own. These are not mere allegations on the functioning of these committees, in 2022, The Wire conducted a Survey, where they found that an ICC for female court employees was established in 2010 at the Calcutta High Court. Three cases had been submitted up until January 2022, according to information gathered about the committee’s operations. Two of them were outstanding, and one had already been disposed of. But there’s no recourse system in place for female solicitors. When information was also requested from district courts, it was discovered that only a small number of them had an ICC for its employees; these included a few female solicitors, and the remaining ones declined to comment.[9]

Many young lawyers have raised concerns that many a time they don’t even know whether the respective courts they are working in even have an ICC or not, upon asking other staff also they don’t get clear-cut information, they even complain that even where the committee is present their concerns are not being heard properly and they often have to hear misogynistic comments from the members of ICC itself.

The Sexual Harassment of Women at Workplaces (Prevention, Prohibition and Redressal) Act, 2014 has been petitioned to the Kerala High Court to ensure that it is properly implemented throughout Kerala, including the courts. The petitioner therein detailed his experience, exposing the court’s disdain for this matter throughout the entire process.

“In the end, the Bench told me not to expect perfection and to be content that at least something is being done,” he adds.[10]

WAY FORWARD

We need to Amend the in-house procedure while considering principles for departmental inquiries into sexual harassment. The Full Court should use its authority to define the composition of a committee empowered to handle such inquiries. It has to be ensured that the committee is well-represented and constituted according to established guidelines and for that there should be a Supervising committee powered by the legislature, for all the district courts and the High Court’s ICC in every state, constituting of impartial members who can effectively check whether these ICC’S are functioning fairly or not and whether the cases are resolved on time or not.

The present matter of the Civil Judge UP is under inquiry;[11] hence we cannot formalize any opinions unless the formal verdict is passed because here in the legal field, we firmly believe in “Innocent until proven guilty” However it’s really really sad to read whatever has been written in the “Open letter, and makes us wonder that when the Law Upholders, Lawyers and the Judges in this Country have to go through this worst, what precedent we are going to set for the general public?

Hopefully through this present matter of this letter to CJI, we could expect that the Apex Court’s Attention would be drawn to the present issue that we are lagging in effectively providing the women of this legal profession a safe space for grievance redressal regarding workplace harassment, mostly the Apex Court would now take stringent steps in order to strengthen the mechanisms for Protection of Women from Sexual Harassment in Legal Fraternity.

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Written by- Aditi

References

[1] Sharma, C. (2023, December 15). “Learn To Live With Sexual Harassment,” Female Judge Writes To CJI Wanting Permission To End Life. https://edtimes.in/learn-to-live-with-sexual-harassment-female-judge-writes-to-cji-wanting-permission-to-end-life/

[2] The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013|Legislative Department | Ministry of Law and Justice | GoI. (n.d.). https://lddashboard.legislative.gov.in/actsofparliamentfromtheyear/sexual-harassment-women-workplace-prevention-prohibition-and-redressal

[3] GSICC | SUPREME COURT OF INDIA. (n.d.). https://main.sci.gov.in/gsicc

[4] Workplace Sexual Harassment Law for India’s Judiciary – Nyaaya. (2022, March 21). Nyaaya. https://nyaaya.org/guest-blog/workplace-sexual-harassment-law-for-indias-judiciary/

[5] Sexual Harassment and Redressal Mechanism in Courts: Notes from West Bengal. (n.d.). The Wire. https://thewire.in/rights/sexual-harassment-and-redressal-mechanism-in-courts-notes-from-west-bengal

[6] NOTIFICATION. (2019, October 18). Retrieved December 16, 2023, from https://karnatakajudiciary.kar.nic.in/committees/internal-complaint-18102019.pdf

[7] Internal Committee. (n.d.). https://www.allahabadhighcourt.in/iccomm/

[8] Internal Complaints Committee (ICC)- Pakur. (n.d.). Retrieved December 16, 2023, from https://districts.ecourts.gov.in/internal-complaints-committee-icc-0

[9] Sexual Harassment and Redressal Mechanism in Courts: Notes from West Bengal. (n.d.). The Wire. https://thewire.in/rights/sexual-harassment-and-redressal-mechanism-in-courts-notes-from-west-bengal

[10] Ibid

[11] Sharma, C. (2023, December 15). “Learn To Live With Sexual Harassment,” Female Judge Writes To CJI Wanting Permission To End Life. https://edtimes.in/learn-to-live-with-sexual-harassment-female-judge-writes-to-cji-wanting-permission-to-end-life/

 

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Evolution of judicial activism in India.

Articles

 

Introduction:

 

It is a consented understanding that the main responsibility of the judiciary is to ensure justice is delivered. They have the power to interpret the existing laws and legislations, and create new laws through precedents. In many cases, the judiciary has extended the scope of the law, and interpreted the law in vague matters. This overreach of the judiciary in matters that don’t fall in its scope, can be termed as judicial activism.

 

In India, the judicial body is viewed as the protector of the Indian Constitution. In the process of protecting fundamental rights, as basic human rights, the Indian judiciary has shown a great mark in judicial activism. 

 

Genesis of Judicial activism.

 

Through judicial review processes in the United Kingdom, the concept of Judicial activism first emerged. The idea of judicial review was first laid down in the case of Thomas Bonham v. College of Physicians case [1]. It refers to the power of the Court to review any piece of legislation, and deem it void if it is violative of any fundamental rights or human rights, or is not in consonance with what is laid down in the Constitution.

 

In the American perspective, the case of Marbury v. Madison [2] stands very significant, as it was the first time the US Supreme Court struck down a law, claiming it to be violative of the US Constitution. 

 

However, in his article “The Supreme Court: 1947,” [3] written by Arthur Schlesinger Jr. and published in the January 1947 issue of Fortune Magazine, Schlesinger used the precise phrase “judicial activism” to describe his actions. He adopted the phrase to designate the American Supreme Court judges at the time as judicial activists, self-control advocates, and judges who fell somewhere in the middle between the two categories. 

 

Definitions of Judicial Activism.

 

There exists no exact definition of the term “judicial activism”.In a broad and simple sense, it refers to the judiciary’s constructive participation in resolving issues brought to its attention by the executive or legislative branches in order to ensure the effective coordination of all three essential pillars.

 

Judicial activism, according to Black’s Law Dictionary, is a way of thinking about how judges make decisions where they let their own opinions about public policy, among other things, influence them.

 

In India, judicial activism means that the Supreme Court and the high courts, but not the lower courts, have the power to declare laws unconstitutional and void if they violate or are inconsistent with one or more constitutional provisions.

 

Judicial Activism in India.

 

Initially more of a technocratic court, the Supreme Court of India has started to become increasingly involved in constitutional interpretation. The court transformed into an activist by its involvement and interpretation of the law and legislation, but the process took years and was slow. The court’s early and rash declaration regarding the purpose and character of judicial review is where judicial activism first emerged.

 

For the first ten years following independence, judicial activism virtually disappeared as the executive and legislative branches of the government actively controlled and meddled with the judiciary’s operations. The Apex court began to examine the judicial and structural views of the constitution in the 1970s.

 

The first time the Indian judiciary showed instances of judicial activism was in the case of Keshavanand Bharti v. State of Kerala [4]. It is a case that took place right before the declaration of the emergency. The Indian Supreme Court ruled that the executive branch lacked the authority to interfere with or alter the constitution’s fundamental principles. Although the judiciary was unable to stop the urgency imposed by the then-prime minister Indira Gandhi, the idea of judicial activism began to gain more traction as a result.

 

Important cases of Judicial Activism. 

 

Since the judgement of the Keshavanand Bharti case, there was a growth of judicial activism across the country. There have been many landmark judgements passed through this concept. Some of the most famous judgements with regards to judicial activism are:

 

  1. ADM Jabalpur v. Shivkant Shukla [5]

 

This case produced the Supreme Court ruling on judicial activism that was the most divisive. The majority of the bench decided that in circumstances of extreme emergencies, such those that occurred between 1975 and 1977, a legal process may be developed that would allow for the taking of even human life. The decision’s author, Justice Chandrachud, came under fire for writing a pro-government opinion, yet the legal theory he offered was a superb example of judicial activism.  The legitimacy of legislation mandating acceptance in order to retain the nation’s sovereignty in the event of internal or external assault has been maintained by Justice Chandrachud’s interpretation of Article 21.

 

  1. Hussainara Khatoon (I) v. State of Bihar [6]

 

The newspaper articles reflected the inhumane and savage treatment of the detainees awaiting trial. Numerous defendants had already served the maximum amount of time in prison without being charged with a crime. Under article 21 of the Indian Constitution, a lawyer filed a writ petition. The supreme court acknowledged it, declared that the right to a fast trial is a fundamental freedom, and ordered the state to offer free legal services to those who are now being held without bail or final release in order to enable them to obtain justice.

 

  1. Sunil Batra v. Delhi Administration [7]

 

The court used its arbitrary jurisdiction to treat a letter that was written by a prisoner as a petition. According to the letter, the head warden brutally hurt and abused a different prisoner. The court ruled that technicalities could not prevent it from upholding peoples’ civil liberties.

 

  1. Golaknath v. State of Punjab [8]

 

In the concerned case,when addressing the constitutional legitimacy of the 17th Amendment to the Constitution, the Supreme Court of India invented the concept of “prospective overruling” by ruling that Parliament lacked the ability to change Part III of the Constitution or to curtail any of the essential rights.

 

Conclusion

 

In conclusion, judicial activism in India has been crucial in advancing social justice and reshaping the country’s legal system. The Indian judiciary has successfully filled the gaps created by the legislative and executive branches through proactive judicial interventions, assuring the protection of fundamental rights and holding the government responsible for its deeds. The rights of marginalised people, environmental protection, gender equality, and corruption have all been addressed by judicial activism.

 

A balance must be struck between the judiciary’s function as a rights protector and the democratic norms of separation of powers, even when judicial activism has obvious advantages. The overuse of judicial activism may result in judicial overreach and intrusion into the purview of the elected officials. 

 

[1] Britannica, The Editors of Encyclopaedia. “Bonham’s Case”. Encyclopedia Britannica, 21 Nov. 2013, https://www.britannica.com/event/Bonhams-Case. Accessed 16 July 2023. 

 

[2] 5 U.S. 137 (1803)

 

 [3] Arthur. M. Schlesinger(1947), ‘The Supreme Court, 1947’, Fortune Magazine

 

[4] Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr. (Writ Petition (Civil) 135 of 1970

 

[5] ADM Jabalpur v. Shivkant Shukla , AIR 1976 SC 1207

 

[6] Hussainara Khatoon (I) v. State of Bihar, 1979 AIR 1369, 1979 SCR (3) 532 

 

[7] Sunil Batra v. Delhi Administration, (1978) 4 SCC 409

 

[8] Golaknath v. State of Punjab 1967 AIR 1643