Sexual Harassment and the Bench – A Lost Opportunity

In an appalling display of abdicating responsibility when institutional non-compliance with the Supreme Court of India’s own Vishaka directions on workplace sexual harassment is at its peak in the public mind, the Chief Justice of India, has washed his hands over making Justice Ganguly accountable for what it accepts as unwelcome verbal/non-verbal conduct of sexual nature by the Judge towards a law intern in 2012. So what was the point of this exercise?.The intern did not call for a Supreme Court panel to investigate – it did so on its own. Nor did she press for redress. On a plain reading of her blog, there was nothing to gain and everything to lose in her candid account of the judge’s unwelcome sexual advances. She did so because she felt “had a responsibility to ensure that other young girls were not put in a similar situation.” At the time of constituting the panel, the CJI clearly states they took up the matter because of the “fact that such allegation against a Supreme Court Judge will have a direct bearing on the Institution’s reputation and credibility”..In other words, it was never about the impact on the intern, but the potential impact on the Institution. He then constituted a 3-judge Committee to “ascertain the truth of the allegations.” Seven sittings and three affidavits later, lo and behold, they figured out what we all knew from just reading the blog- eureka! She was actually telling the truth. No wonder the intern described her experience before the panel as “being looked at with suspicious eyes”. The statement goes on to accept that based on the intern’s statements and her witness support,.“the statement of Ms. [SJ], both written and oral, prima facie discloses an act of unwelcome behaviour (unwelcome verbal/non-verbal conduct of sexual nature) by Mr. Justice (Retd.) A.K. Ganguly with her in the room in hotel Le Meridien on 24.12.2012 approximately between 8.00 P.M. and 10.30 P.M.”.In an unexpected twist, the CJI’s statement then concludes that as the intern was not on the roll of the Supreme Court and the Judge had retired, “no further action is required by the Court.” Knowledge that the intern was not on the rolls was already in the CJI’s knowledge in the first instance- which further reaffirms that the entire exercise was not really about justice for the intern, but self-preservation of the Institution. If the panel had no jurisdiction over either the intern or Justice Ganguly, then why bother with a finding, and not follow through with an action?.Which makes me ask – who actually benefited from this outcome? Net, net, the Supreme Court. Not only was it an occasion to close the door on complaints about retired judges, it brought relief to a Court worried that one of it’s own sitting Judges might be the accused. The cherry on the cake? Even the newly established Supreme Court Internal Complaints Committee on sexual harassment, does not extend to the sexually offensive behvaviour of a judge. Is it me, or are we all asking “Why?”.All in all, its a win-win outcome for the Court. And a lost opportunity for raising the bar of accountability on systemic workplace sexual harassment irrespective of an offender’s status; for rising to an expansive social context understanding of the issue within the legal and judicial profession and for sending a tough, genuine message of zero tolerance when it comes to sexual harassment by a Judge, retired or not! .Naina Kapur is an Advocate, Preventive Law & Equality Compliance. She was the Instructing Counsel for the Vishaka Directions on Workplace Sexual Harassment before the Supreme Court of India