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Amicus brief: Court’s own sex harass inquiry must comply with Vishaka; Call other victims to depose before committee confidentially

Jaising: Make Court's own Vishaka judgment apply to own house
Jaising: Make Court's own Vishaka judgment apply to own house

The Women’s Rights Initiative of the Lawyers Collective NGO has filed a petition as amicus curiae (friend of the court), requesting the Supreme Court bring its internal sexual harassment guidelines into compliance with the rules laid down in its own Vishaka judgment, to regulate court internships, invite a notice requesting other victims to come forward confidentially, and more.

The 29-page petition (excluding annexures), filed yesterday before the Supreme Court by senior advocates and Lawyers Collective co-founders Anand Grover and Indira Jaising (who is also additional solicitor general), seeks not just to address the issues raised by the allegation that an intern was sexually harassed by a former Supreme Court judge, “but is concerned about  myriad  forms  of  sexual  harassment  at  the  workplace  which  occur  in  the justice system with regard to interns, law clerks, law students, advocates and legal professionals  as  well  as  others  who  access  the  system  in  the  form  of  clients  or litigants”. The brief stated:

“In  this  light,  it  is  submitted  that  the  scope  of  the  Committee  set  up  by this  Hon’ble  Court  must  also  extend  beyond  the  single  incident  before  it,  to addressing  the  systemic  nature  of  sexual  harassment in  the  workplace  in  this institution.  A  Resolution  of  the  Women  Lawyers  of  the  Supreme  Court  Bar Association signed by a number of women lawyers practicing in this Hon’ble Court is annexed...”

The present committee of three judges, of whom only one, Justice Ranjana Desai is female, was not in compliance with Vishaka’s requirement for women to make up two-thirds of a sexual harassment inquiry committee, as well as requiring a woman to head the committee.

Vishaka rules stipulate that at least one member from outside the organisation – the Supreme Court in this case – should be present on the committee, which the brief “strongly recommended”.

The petition also prayed that guidelines be drawn up to monitor and regulate court clerkships and internships and surrounding working conditions.

In relation to the specific case that brought the issue to the fore, the brief’s prayers asked for the Supreme Court to “issue a public notice inviting persons aggrieved to depose before the committee  in  relation  to  the  present  incident  or  any  other  similar incidents”, to “with  a  categorical  statement  that  their  identities  will  be kept strictly confidential”.

Finally, the brief asked the court to pass directions to restrain the former Supreme Court judge alleged of harassment from approaching the former intern who first made the allegations, “in order to ensure there is no obstruction in the process of justice”.

[Read full amicus curiae brief here (PDF, 202KB)]


The amicus brief describes that freedom from sexual harassment is an internationally recognised human right, which the Indian Supreme Court acknowledged in the landmark 1997 Vishaka vs. State of Rajasthan judgment, followed by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. It also sets out a brief history of the development of sexual harassment laws in India.

According to the Vishaka guidelines:

For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:
(a) physical contact and advances;
(b) a demand or request for sexual favours;
(c) sexually-coloured remarks;
(d) showing pornography;
(e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

Where any of these acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.”

The petition cites foreign laws about what constitutes “unwelcome behaviour”, with Australian legislation defining it as “circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated”. This was also cited by the late Justice JS Verma in his report on amending criminal laws in the wake of the December 2012’s Delhi gang rape.

The petition also outlined so-called quid pro quo sexual harassment caused by harassers in positions of authority over the victim, and argued that such an inequality in bargaining positions should also be recognised in the case of retired judges:

There can be no gainsaying that an enormous social and professional gulf separates Judges from the law students/ clerks/ interns working in the institution of the Supreme Court. It is further trite that even after their retirement from this Hon’ble Court, Judges continue to exercise power over the professional lives of potential/ existing law clerks/ interns. In these circumstances, it is most respectfully submitted that incidents which occur subsequent to the conclusion of the official period of internship/ clerkship and/or subsequent to the retirement of the Judge from the Bench, also fall within the protection of the law.

Prima facie, said the petition, a “relationship of dominance” between a judge  and an intern or law student was apparent.

[Read full amicus curiae brief here (PDF, 202KB)]

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