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‘Lend Your Support to Complainant’s Right to Unbiased, Impartial Inquiry’: Women Activists Write Open Letter to Retd Judges (Full text)

"What is at stake is not only the rights of women, but also credibility of the Supreme Court."

To,

The Hon’ble Retired Judges

We are activists from women’s groups and civil society members who have engaged with issues of justice, rights, and law reforms, specifically those related with women and sexual violence starting from the rape law reforms in 1982 to the final changed law in 2013. We address this letter to the retired members of higher judiciary, to appeal to you to please speak up on the side of justice and fairness in the matter of allegations of sexual harassment against the Chief Justice of India.

On 6th September 1979, Upendra Baxi, Vasudha Dhagamwar, Raghunath Kelkar and Lotika Sarkar, well known and reputed lawyers and legal scholars, addressed an open letter, to focus judicial attention and public debate over a decision rendered by the Supreme Court on September 15, 1978, with respect to the complaints of a tribal girl who was sexually assaulted by two police personnel in the police station. The Supreme Court had reversed the High Court order convicting the policemen of rape and acquitted the accused police personnel.

Citing reasons for their disagreement with the highest court of the country they said: “We can only appeal, in conclusion, to have the case reheard, as an unusual situation, by a larger bench, and if necessary by even the Full Court. This may appear to your Lordship as a startlingly unconventional, and even a naive suggestion. But nothing short of protection of human rights and constitutionalism is at stake. . . . Maybe on re-examination Ganpat and Tukaram may stand acquitted for better reasons than those now available. But what matters is a search for liberation from the colonial and male dominated notions of what may constitute the element of consent, and the burden of proof, for rape which affect many Mathuras on the Indian countryside.

“You will no doubt forgive us for this impertinence of writing an open letter to you. But the future of judicial protection of human rights at grassroots level in India at the turn of the century, a concern we all share as citizens and as lawmen, leaves us with no other and better alternative.”

This letter proved historical and worked as a catalyst for a nationwide women’s movement which has brought about major changes in laws related to women particularly around sexual violence and harassment. It forced the recognition of the element of power in incidents of rape. Custodial rape was redefined in law. It is this legacy that brought us to a much broader articulation of the offence of rape in the 2013 Criminal Law Amendments wherein custody was defined more broadly to extend the notion beyond physical boundaries to the idea of coercive circumstances where power is assumed to be inherent and embedded. This is the legacy that made it possible to speak of child sexual abuse and also gave us Vishakha guidelines for addressing sexual harassment at the workplace.

Having traversed this whole journey with a faith and respect reposed in the Courts and the judiciary, we, members of women’s groups, lawyers, scholars and civil society members are once again in a situation when we believe that we have no alternative but to appeal to members of the judiciary to relook at their actions.

In this matter of a complaint of sexual harassment made by a junior woman employee of the Supreme Court against the Chief Justice of India we have merely been seeking “a fair and impartial enquiry in accordance with the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013.”

The Supreme Court has, time and again stood by the rights of women and marginalized and through many landmark judgments has helped to advance and consolidate the rights of women through a transformative interpretation of the Constitution. Some examples of these that come to mind are Vishakha judgment that addressed the fundamental rights of working women and laid down guidelines to deal with sexual harassment, the Sabarimala judgment upholding women’s rights to worship, the Maharashtra bar dancers right to work, setting aside the practice of talaq-e-biddat, framing schemes for compensation and rehabilitation of survivors of sexual assault, reading down of Section 377, granting recognition to gender identity and rights to transgender persons in the NALSA case.

It is judgments such as these that repose our faith in the judiciary of this country. Unfortunately, today we are facing unprecedented crisis of credibility of Supreme Court, as the Court in dealing with the complaint of sexual harassment against the Chief Justice has acted not only in utter violation of principles of natural justice but also in contravention of Vishakha Judgment and the Sexual Harassment of Women at Workplace Act 2013.

Just to recapture, on 18th April 2019, a 29 pages affidavit was submitted by a woman employee of Supreme Court to the 22 judges of the Hon’ble Supreme Court, detailing allegations of the sexual harassment faced by her from none less than the Chief Justice of India. The Supreme Court called a special hearing over this matter on Saturday, 20th April 2019 at 10:30 am, through a bench consisting of two Judges besides the Chief Justice of India, against whom the allegations of Sexual harassment were made. With no notice given to the aggrieved woman, CJI not only declared the allegations false but further stated that these allegations threaten independence of Judiciary. He also declared that the complainant had a criminal background. The bench further asked media to show restraint to protect the independence of judiciary. None of these observations were based upon any investigation by any competent authority.

This was a shocking breach of procedure wherein before the complainant was heard the powerful accused was allowed to make public declarations of his innocence and also point fingers at the complainant. Through this hearing the Supreme Court lowered itself to the level of very many accused powerful men who resort to maligning the complainant by citing false and irrelevant past histories and by imputing ulterior motives.

This move was criticized by many people including us through an open letter to all judges of the Supreme Court dated April 24, 2019. Thereafter a committee was formed of three judges of Supreme Court headed by Justice Bobde. The constitution of this committee itself was in contravention of 2013 Act and the guidelines laid down by the Vishakha Judgment of 1997 by the Supreme Court itself, as it neither had any external member nor was it headed by a woman. In spite of this the complainant participated hoping to get a fair hearing.

When this committee started the hearing, it denied the aggrieved woman right to be represented by legal/support person of her choice, completely ignoring unequal balance of power not only between 3 the parties but also between the complainant and the Committee itself. The committee obviously consisted of senior most judges in the country while the complainant did not have legal training of any comparison. Procedures included in Vishakha and the POSH Act are cognizant of these unequal power equations in the workspace and a fair procedure adopted by the Court should also take this into account.

The matter is even more grievous because the complainant had asked for someone to accompany her because she has a hearing disability but was denied even that. This again is in violation of the rights of people with disability, enabling whose participation is critical to any imagination of a just procedure.

The aggrieved woman after two hearings on 26th and 29th of April withdrew from the enquiry, citing that neither was she allowed representation, nor was she informed of the procedures to be followed by the committee. There was no audio or video recording of the proceeding and further she was not even provided minutes of the proceeding. Irrespective of these submissions the committee proceeded to hold the enquiry ex-parte.

And now on May 6, 2019, the Supreme Court has gone ahead and declared that there is “no substance” in the allegation contained in the complaint. Further, in full violation of her right as a complainant, she has also been denied a copy of the report. A reference is made to a judgment from times before the RTI Act and the POSH Act to support this lack of transparency towards the complainant.

This in our understanding is a clear violation of any procedures of a fair and independent enquiry. We are aware, that this is an extraordinary case that calls for extraordinary measures to be put in place, as this is a matter pertaining to the highest judicial authority under the constitution. However, extraordinary measures cannot and ought not to overlook, fundamental principles of natural justice and fair hearing.

We request you, as a respected member of the judiciary, to lend your support to the complainant’s right to unbiased, impartial enquiry proceedings, and urge you to call upon the Supreme Court to take measures to correct the prevailing situation, by establishing proper procedure to enquire into the allegations.

We are proponents of independence of the judiciary and understand and respect that completely. However, we also believe that pointing out any lapses in the system of justice so that it may be rectified is in fact protecting this independence and not interference in procedures.

Further we wish to reiterate that women and other marginalized sections of society do not have access to any societal power and turn to Courts expecting that they shall get a fair hearing. Khap panchayats and other mechanisms that function on ideas of “social morality of the powerful” are not where we seek justice. We have faith in the judicial constitutional mechanisms for any access to justice. It is with this in mind that we say that whatever be the outcome of this enquiry, it has to come through due diligence in law. Anything short of that will weaken the promise of justice to the weaker sections in this highly hierarchical society.

If the highest judicial authority does not follow its own procedures and stand up in support of the less powerful, it will send a message of disquiet to all those keeping faith in the system. What is at stake is not only the rights of women, but also credibility of the Supreme Court. It is to protect this system that has been painstakingly created by the diligence of many members of the judiciary that we ask you to speak.

Also Read:  Senior Lawyer Karuna Nundy Points Out The 3 Major Problems With Gogoi-Sexual Harassment Committee

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