Will SC be driven to implement a mechanism to deal with sexual harassment?

The highest court in the land will have to find a mechanism under which in future, if sexual harassment allegations are made against a judge, he/she will not go in the manner of Justice Ganguly. Hopefully, there will be some kind of system and guidelines to be followed by the accused and the victim, says Sheela Bhatt.

Justice Swatanter Kumar filed a case in the Delhi high court on Wednesday against three media houses for making sexual harassment allegations against him and prayed to the court that there should be a “permanent injunction restraining the media” from reporting the case. Justice Kumar claimed before the court that the incidents that have been alleged by the victim, a law intern, did not take place and that “the alleged complaint is baseless, fraudulent and motivated".

The intern’s original affidavit containing the allegations have been returned to her by the Supreme Court. It was reported that the Supreme Court could not do anything in view of a previous decision on December 5 not to entertain any more such complaints against retired judges. She was asked to take appropriate action under the law.

However, when Justice Kumar was trying to get a gag order against the media in the case, the Supreme Court took a judicial view on the law intern's case.

On January 15, the SC issued notices to the Centre and Justice Kumar on a writ petition filed by the law intern. The apex court now says that it wants to consider a sort of permanent institutionalised mechanism to deal with such allegations against retired judges and judicial officers.

Justice Kumar has asked the high court to help get him damages from the three media houses he is suing for Rs 5 crore.

Justice Kumar’s case follows Justice A K Ganguly’s episode. The latter was put under tremendous pressure to quit following allegation of sexual harassment case against him by another intern. He resigned as chief of the West Bengal Human Rights Commission within weeks after the charges. Many who sympathised with Justice Ganguly strongly felt that his side was not heard and some kind of ‘Khap justice’ was administered without any formal and detailed hearing of his side of the case. They felt he was maligned and dumped by the institutions and the government at the Centre and his home state of West Bengal.

In view of his disgraceful exit, it seems that a certain lobby in New Delhi wants Justice Kumar to face the allegations head-on. Justice Kumar heads the National Green Tribunal, an important body, where industry's stakes are quite high.

Justice Kumar has elaborated on and refuted the allegations against him in his plea. He calls them “false allegations” and gives a point by point rebuttal. He has acted fast through his lawyer Raian Karanjawala who has filed the plea in the high court to contain the damage in the case. In his plea, Justice Kumar has presented his case strongly.

He says that he has been an eminent lawyer for 23 years before being elevated to the position of a judge of the high court of Delhi. Later he served as a judge in the Punjab and Haryana high court too. Before coming to the Supreme Court he served as chief justice of the Bombay high court. He served as a judge in the Supreme Court from December 2009 and resigned on December 2012 to take over as the chairperson of the National Green Tribunal. He has been in the profession for over 43 years.

In his plea, obviously, he tried to put his best characteristics forward. He claims that he has never tried to be careerist, “but has rather made it his life's work to protect and preserve the interests of justice.”

While talking about the particular case, Justice Kumar has a few very interesting things to say in his plea. First of all he tells the court that he doesn’t know the details of the law intern who has made the serious charges. He quotes that the intern is now stated to have become a lawyer, though the details relating to her identity are yet to be disclosed to him.

Justice Kumar says that the reporter, Manish Chibber of Indian Express, who wrote the details of the allegations of the lady intern had called him and made a disclosure about her and on the basis of that he was filing the case.

In a surprising statement, Justice Kumar says that he ‘recalls’ that the lady mentioned by Chibber “was not an intern assigned by the honourable Supreme Court.” He says the lady had applied for an internship in his office but he claims that, “however, she was neither an intern nominated by the Supreme Court, nor by the plaintiff (Justice Kumar) himself.”

Justice Kumar rather clearly says that in his plea that the ‘mention’ of the lady is referred to as 'Ms  Intern' but it is not an admission of her status as an 'intern' in his office.

In fact, he categorically says that with help of his assistants he has been able to recognise her identity. Giving more details he has told the high court that she was present at his office “for 3-4 days”. Justice Kumar claims that during her presence in the office she (the law intern) only worked with the secretarial staff. She did “no work apart from assisting the other secretarial staff in the organisation of the international conference.”

Justice Kumar insists that the law intern “neither did any legal research nor did she attend any hearings in the court.” He informs the court that the law intern “had committed an error with regards to an invitation which caused grave embarrassment” to his office. Soon after the incident the law intern left his office “citing an illness in her family”. As per the records available with Justice Kumar, no certificate of internship was ever issued to her.

In short, Justice Kumar claims that at no point in time was the law intern alone with him in the chamber. Justice Kumar claims that it was the practice of his office that no intern would ever enter the chamber alone but was always accompanied by a law clerk. Justice Kumar reveals that the same was necessary since his office was in custody of original and sensitive court records which were required to be dealt with in utmost confidence.

Justice Kumar nurses the complaint that despite him requesting the newspaper, it published the allegation against him “without undertaking any verification of the allegations and without even inquiring into the authenticity of the alleged complaint or affidavit.”

Justice Kumar says, “A news item was published on January 11 with the headline ‘Justice S Kumar... put his right arm around me, kissed me on my left shoulder... I was shocked’.”

He thinks that it was done with the sole intention to defame him. He claims that when he was a sitting judge of the Supreme Court for three years he had about 20 law interns working in his office. The average tenure of such interns was for a month each or more.

About the allegation of ‘sexual advances’, all that the judge claims in his defence is to indirectly suggest that in his official residence there was no possibility of having privacy where he could have indulged in the alleged activity.

He claims that his office is part of his residence where his family resides with him. His wife, son and his daughter, who resides in New Delhi, would drop her two-year-old child every day to the house accompanied by an attendant.  Also at his house was an assistant registrar-cum-personal secretary, two senior personal assistants and five to six court attendants including peons and a chauffeur. There were other members of the staff as well.

His office comprised two rooms. The rooms were adjacent and interconnected with doors. In those two rooms, one room was the chamber of Justice Kumar and the other was filled with at least 10 staffers (including secretaries, law researchers/clerks, interns and peons) from morning till the office closed at approximately 8 to 9 pm). Also, Justice Kumar says during the relevant period (April to July 2011), his office was extremely busy in the preparations for the global conference scheduled to be held on July 21-24 at Vigyan Bhawan, New Delhi. He was the chairperson of the organising committee and it was imperative for him to have the said conference organised successfully. Justice Kumar said his staffers were ‘jostling for space’ in those two office rooms.

Justice Kumar thinks that these allegations are a product of conspiracy between the law intern and persons who have a vested interest in destabilising the institution of justice delivery. Justice Kumar has not produced any evidence to that effect.

In his plea before the high court, he claims, “The contents of the affidavit stating that the alleged incident took place in an office room into which any of the 10 to 12 people in the adjacent room could have walked into at any moment is nothing short of preposterous. It is common knowledge in judicial and legal circles that the office of the plaintiff has always had a very caring atmosphere where the plaintiff has himself ensured that he takes care of his associates and staff members as a father would.”

To tighten his case Justice Kumar reminds the court that the allegations were made two and a half years after the incident. Also, he refutes media reports that the intern was an official intern with the Supreme Court. Justice Kumar says, “As per the records available to the plaintiff and the inquiry made by the staff of the plaintiff, the same is factually incorrect.”

He then goes on to allege that the reports against him are the result of some decisions taken by him and it is in fact an attack on the “justice delivery system.”

He reminds the media that, “The freedom of press under the Constitution is not higher than the freedom of a citizen and is subject to the restrictions imposed under Article 19(2) thereof.”

Justice Kumar says that media houses under question have wilfully forgotten that the only real strength that judges rely upon is the reputation and integrity that they hold with the public at large.

Chief Justice of India P Sathasivam, after hearing senior counsel Harish Salve, who appeared for the law intern, appointed senior advocates Fali Nariman and P P Rao as amicus curiae (friends of the court).  

Many women’s organisations have also chosen to intervene. The Vishakha Group for Women's Education and Research (Rajasthan), Women's Rehabilitation Group, Jaipur, Jagori (Delhi) and Kali for Women (Delhi) had pleaded with the Supreme Court that they should be made intervenors in the case. The court has accepted their plea.

Now the highest court in the land will have to find a mechanism under which in future, if sexual harassment allegations are made against a judge, he/she will not go in the manner of Justice Ganguly. Hopefully, there will be some kind of system and guidelines to be followed by the accused and the victim.

Meanwhile, Justice Kumar will have to wait and see how far and how fast things move to set in order a mechanism to deal with the allegations that he is facing today.