With no effective system in place to check, investigate or punish instances of sexual harassment by serving or former judges, the apex court now finds itself in the dock
The tragedy of a legal education is that it prepares you to be a free-spirited being in a regimented world. If John Grisham novels — where the protagonist wins “justice” after a gripping courtroom drama — got you hooked to the law in the first place, chances are law school will nurture that idealism to tell you how the world should be, not how it is. Fresh off the block from learning the rigours of constitutional law or legal ethics in your fourth year, you head for the hallowed Supreme Court of India, ready to right most wrongs. As an intern, no less. In the two months that follow, the long arm of the law beats you down with the big stick of reality. You are informed — usually by a court clerk or a senior lawyer’s private secretary — that the only way to succeed is by endearing yourself to your employer.
Coming up short
The possibility of sexual abuse looms large in any fiduciary relationship, in any industry and at any workplace. What sets apart the allegation by a former law student and intern that she was harassed by a retired judge of the Supreme Court from others is that it was made, in the first place. For all its progressive pronouncements against sexual harassment at the workplace, the Supreme Court has come up woefully short in addressing the issue within its fraternity. In 1997, the court suggested in the Vishaka case that “an appropriate complaint mechanism [against sexual abuse] be created in the employer’s organisation for redress of the complaint made by the victim.” Not once were the Supreme Court’s own service rules amended to reflect the Vishaka guidelines. It took the court 16 years to institute a remedial process for its employees: in August 2013, the Gender Sensitisation & Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013 took effect. The regulations however, are confined to actions or misconduct that occur within the court’s “precincts.” Naturally, there is no mechanism to hear complaints of harassment by former Supreme Court judges, who remain privy to the many powers that a current judge enjoys.
The Gender Sensitisation and Internal Complaints Committee (GSICC) conceived by the regulations would be comprised almost entirely of lawyers and judges. Two members, from a total of 13, will be nominated from outside the closely knit legal community, and that too by the Chief Justice of India. Even with its serious deficiencies, the Supreme Court has made little effort to act on the regulations. Three months after the rules were formulated, the court is yet to institute the GSICC.
No surprise then that the lawyer in question chose to blog about her ordeal rather than approach the Supreme Court through a formal complaint. In the absence of an effective remedial mechanism, the Chief Justice also had no option but to take suo motu cognisance of the matter. His immediate reaction — to designate three colleagues who would sit in judgment over their peer — reveals how ill-prepared the Supreme Court is to address questions of accountability.
Making a distinction
At the heart of this problem is the Supreme Court’s difficulty in distinguishing its administrative and legal duties. The independence granted to the higher judiciary by the Constitution has materialised into administrative autonomy, with few checks and balances. The Supreme Court Registrar, a Class I employee responsible for taking all major administrative decisions, reports directly to the Chief Justice. Several perks, grants and privileges of Class I employees are determined by the Chief Justice himself, effectively foreclosing any external scrutiny of non-judicial appointments.
Key among such appointments are those of law clerks and judicial interns. Every Supreme Court judge is allowed two law clerks at any given time — one appointed by the court registry, and the other chosen at his personal discretion. Since law clerks and interns are valuable to the functioning of the court, it is only natural that judges themselves have the final say in their appointment. Every year, a panel of two judges conducts interviews with those candidates shortlisted by the registry. After the interview process, a “rank list” of clerks is circulated among judges, who may choose from this final pool. Once this appointment process is over, however, the term of law clerks is subject entirely to the decision of their masters.
The services of law clerks and interns may be terminated at any time by the judge whom they work for. Law clerks, fresh from studying principles of administrative law, are made to sign an undertaking that states: “My period of assignment can be terminated without any notice.” Even leave of absence requires prior approval from the judge. Clerks or interns do not have access to any mechanism to air or redress their grievances. They do not go through a formal orientation process — consequently, for the most part of their tenure, they interact with the judge’s secretaries, the judge himself, and fellow interns. Above all, the “residential office” system ensures that the lion’s share of an intern’s work hours is spent within a huge, isolated compound in Lutyens’ Delhi. If this system does not lend itself to abuse, what does?
Flaws in the Supreme Court’s administrative set-up are compounded by a complete lack of transparency in the exercise of its judicial functions. The collegium system has ensured that a strong group of senior judges continues to influence appointments not only in the higher judiciary but also of former colleagues to independent commissions, arbitral tribunals and other quasi-judicial bodies. The normal tenure of an intern or a law clerk ranges from a few months to a year, but this may be extended by a serving judge of the Supreme Court until his retirement. It is not uncommon for a Supreme Court judge to retain their law clerks for post-retirement assignments as well. Since tribunal or arbitral postings are extremely valuable to a law student interested in advocacy, these offers are rarely turned down. Above all, a reference from a Supreme Court judge improves one’s chances of securing admission in a prestigious graduate programme abroad. Chances that an intern or a law clerk reports sexual harassment during her term with a sitting judge of the court are, therefore, slim.
The Supreme Court has resisted any attempt to shine light on the appointment of former judges to independent tribunals. It is yet to respond to the Central Information Commissioner’s request, made in 2011, to disclose the process by which the Chief Justice appoints arbitrators under the Arbitration and Conciliation Act, 1996. A streamlined, transparent process for appointing former judges to tribunals would lessen the considerable leverage that serving and retired judges have over their interns, and thus the scope for abuse.
With no effective system in place to check or punish instances of sexual harassment by serving or former judges, the Supreme Court now finds itself in the dock. Having taken cognisance of the matter, the three-judge committee could call upon the lawyer to investigate her allegation. If she refuses to name the judge in question, the court will be in a bind: it can neither afford to close the matter given the public debate it has generated, nor can the committee pretend this was a false claim against an eminent personality. The first would amount to airbrushing the widely acknowledged practice of sexual harassment in a male-dominated legal community; the second would mean going easy on contemptuous remarks against the court.
Whatever course the committee takes, it must not attempt to preserve the court’s reputation by putting the lawyer in the dock. It takes extraordinary courage — from someone palpably confused by how ideals taught in law school could have been so easily betrayed by reality — to go public with an allegation of this sort. As she has poignantly written, “If the shared experiences of women cannot be easily understood through a feminist lens, then clearly there is a cognitive vacuum that feminism fails to fill.” The Supreme Court must swiftly investigate the matter, verify the allegation made and dispense what the law should but rarely does: Justice.