Solicitor General Opposes Reinstatement of Resigned Woman Judge Who Made Sexual Harassment Complaint Against HC Judge; Supreme Court Reserves Judgment

On Tuesday, the Supreme Court continued hearing arguments in a plea filed by a woman Additional District Judge (ADJ) of Madhya Pradesh - who raised sexual harassment complaint against a then sitting MP HC judge - seeking reinstatement into service on the ground that her resignation was due to coercive circumstnaces. Solicitor General of India, Mr. Tushar Mehta, appearing for the Madhya Pradesh High Court, urged a Bench comprising Justices L. Nageswara Rao and B.R. Gavai to not allow the petition in exercise of Article 32 as otherwise it would have an effect of stigmatising a prestigious institution and the personnels manning it. "Considering the totality of the facts it may be very harsh to stigmatise an entire institution and all individuals manning it, your lordships, may decline interference in an Article 32 jurisdiction." On the last occasion, Senior Advocate, Ms. Indira Jaising appearing on behalf of the petitioner had argued that she was transferred in violation of the extant transfer policy. Ms. Jaising asserted that she was compelled to resign as she was faced with hostile transfer orders for not succumbing to the demands of the judge. The Senior Counsel clarified that the petitioner was inviting findings from the Apex Court on her right to be reinstated, rather than on the issue of sexual harassment. However, Ms. Jaising expressed her dismay that there exists no policy to enable a Judge to make a complaint of sexual harassment at the workplace. On an earlier occasion the Supreme Court had suggested the Madhya Pradesh High Court to consider if the petitioner can be reinstated. The Full Court took the stand that her request cannot be considered. In January, 2022, the Supreme Court sought a response from the High Court as to why it chose not to act on its suggestions. It is pertinent to note that a Judge's Inquiry Committee ("JIC") was constituted by the Rajya Sabha to investigate the grounds on which the removal of the said Judge of the High Court was sought. It submitted its report in terms of Section 4(2) of the judges (Inquiry) Act, 1968 way back on 15.12.2017. It had recorded that the transfer was punitive, irregular and unjustified and she was compelled to resign under 'unbearable circumstances'. However, it found that the interference of the respondent judge in the process of transfer did not amount to misbehaviour. As per the Committee, a higher standard of proof was required to establish her claim of harassment against a then sitting High Court Judge. "The protection given to a judge holding constitutional position has a purpose to serve. Removal of a judge on allegations like corruption or sexual harassment affects not only the judge personally but in a large sense affects the general reputation of the judiciary and, therefore, higher degree of proof is required…", the report had stated.As the report reflected that the transfer was irregular, the petitioner in 2017 made representation to the Madhya Pradesh High Court seeking her reinstatement, which was rejected by a Full Court meeting of the High Court. At the outset Mr. Mehta clarified that he had not taken instructions from the High Court and the submissions made by him are only meant to assist the Court with some legal propositions. Stating that the prayer sought by the petitioner would have a significant impact on the judicial institutions, he felt he was duty bound to make such submissions. He emphasised that the High Court had not taken an adversarial stand in the matter. "I must point out that I am conscious of the fact that I represent the High Court. But, I have not taken any instruction from the High Court. The submissions that I make are the submissions which I feel I am duty bound to make…Except for the first conference where the registrar general attended to give me the chronology. These are not the contentions raised by the High Court. Kindly do not take it that the High Court has taken an adversarial stand. If the prayer is granted the consequences are so huge that I think It is my duty to assist your lordship with some legal propositions.Recapitulating submissions made on the last date of hearing, Mr. Mehta highlighted that instances of harassment were cited by the petition. One was with respect to intense surveillance by frequent inspection. Reference was made to the finding of the Judges' Inquiry Committee in this regard which reflected that such surveillance was a routine practice to enhance the quality of the work in subordinate judiciary, which helps to ensure that discipline and excellence is maintained in the performance of the judiciary. "Alleged intense surveillance by frequent inspection. This was one ground urged of course after tendering resignation. The finding is that this is a regular phenomenon. This is not only with respect to the petitioner, but every judicial officer because there are circulars of the High Court to this ...

Solicitor General Opposes Reinstatement of Resigned Woman Judge Who Made Sexual Harassment Complaint Against HC Judge; Supreme Court Reserves Judgment

Sohini Chowdhury

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