Case BriefsHigh Courts

Sikkim High Court: Bhaskar Raj Pradhan, J.has framed an eminent question for determination which will have an impact on the dispensation of justice to complainants under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the “POSH Act”).

The High Court will determine whether the broad interpretation of the “workplace” under Section 2(o)(vi) of the POSH Act would bring within its ambit attending a private marriage function in a private hotel.

The applicant sought direction upon the respondents not to take any step on the basis of the show-cause notice dated 10-06-2019 and the order of termination pursuant to the report of the respondent 4. 

Petitioner sought to allow him to join the post of a professor of the Department of Mass Communication, appoint him as the Head of the Department and pay his regular salary including his arrears.

Kalol Basu, Counsel represented the applicant and Karma Thinlay Namgyal, Senior Advocate assisted by K.T. Gyatso, on behalf of the respondents.

Applicant’s counsel urged that the entire enquiry conducted by respondent 4 was without jurisdiction as the alleged incident of sexual harassment purportedly had taken place at a hotel during a marriage function and the same does not fall within the definition of “workplace” as per the existing law.

Decision

Bench stated that admittedly the alleged incident took place at a marriage function in a private hotel.

Section 2(o) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 defines the workplace.

In view of the said definition of “workplace”, it seems that the petitioner does have a strong arguable point on the jurisdiction or the lack of it.

Whether the broad interpretation of “workplace” would bring within its ambit attending a private marriage function in a private hotel, is a question which may have to be examined.

In the stated circumstances, High Court is of the considered view that during the pendency of the writ petition before this court, the respondents 1 to 3 should not give any further effect to the termination order dated 28-06-2019.

The application was disposed of in the above view. [Silajit Guha v. Sikkim University, 2020 SCC OnLine Sikk 99, decided on 20-08-2020]

Case BriefsHigh Courts

Bombay High Court: Bharati Dangre, J., while addressing a bail application made the following observation:

There cannot be a straight jacket formula as to how a woman will react to an act of outrage by a male, since all women are borne into different circumstances in life, go through different things and faces, experience and react differently and necessarily each woman would turn out to be different from the other.

Applicant sought release on bail for being charged with offences under Sections 376, 354-A and 354-B of Penal Code, 1860.

Advocates who appeared in the present matter:

Dr Abhinav Chandrachud with Ms Khushboo Pathak and Mr Wasi Sayyed i/b Mr Prem Pandey for the Applicant.

Mr Ajay Patil, A.P.P. for the State.

Mr Satyam Nimbalkar for the intervener.

Forceful Sexual Intercourse

Complainant was acquainted with the present applicant aged 24 years since past 8 years. Complainant along with her friends went for an overnight Diwali party and somewhere past midnight she went to a bedroom to take rest and went off to sleep. Around 4,30 she was awakened with a feeling and found that someone was forcing himself upon her.

Complainant found that it Applicant who was forcing himself upon her and trying to have sexual intercourse with her by penetrating his penis into her vagina. At this juncture, the Complainant used all possible force to push him away and she was successful in thwarting the sexual overtures by the applicant.

Later, complainant went to find her friends which she couldn’t hence she returned back to the same room where, on not finding the applicant she went off to sleep, but yet again the applicant tried to repeat the same act to which complainant scolded him and left the room.

Distressed Mental Condition

Due to above stated incident, complainant went through mental trauma and was frightened. She narrated the whole episode to her mother and went to a psychiatrist, further she discussed the whole matter with her family and approached the Kondwa Police Station.

Offences were registered under Sections 376, 354 and 354-A of the Penal code, 1860.

Decision

In complainant’s statement, she stated that on applicant trying to establish physical contact with her she raised an alarm to which none of her friends responded, Court was astonished to the said statement.

Another point which seemed incomprehensible was the fact that she did not report the incident to anyone on the same day though she was amidst of the friends and went for an outing. The photographs placed on record would lead to an impression of her being cheerful in the company of the accused and one other friend.

Considering the material placed on record, Court was of the prima facie view that it does not constitute a reasonable ground for believing that the applicant is guilty of the offence charged.

The statements of two witnesses to the effect that the Applicant and the victim were found sleeping in the same room on the same bed will have to be put to test in a trial and this evidence will have to be appreciated cumulatively.

Further the Bench added that,

“…concept of consent of the victim or as to at what stage the consent was revoked and the act of physical indulgence was attempted to be restrained is a matter of trial.”

Court also quoted Warren Buffet,

“If a lady says No, she means may be” or in the expression of Rich Santos for Marie Claire – “Most of us guys have been there; the night ends, we invite the girls come home with us. When a girl says no, we launch into our second and third attempts. Sadly, these attempts are filled with incentives such as promise of guitar playing, of ‘fabulas chicken tenders at the dinner by my place’ or even promises: ‘I will definitely call on the next day’ etc; I have taken girls home after long discussions, changing Nos to Yeses”

above are the old hat tricks and the issue as to whether the girl really consented freely for a physical indulgence with her is to be searched by applying the new standards of modern life and the present social scenario.

On granting bail to the applicant, Court stated that,

Balancing deprivation of his liberty against the possibility of the trial being commencing and concluding in the immediate times is far beyond reality, particularly in the light of the huge galloping pendency which the judicial system would be staring at, at the end of the Covid pandemic. Incarceration of a young boy for an indefinite period would be antithesis to the concept of liberty.

Hence, applicant was granted bail with stringent conditions. [Jitin Mothukiri v. State of Maharashtra, 2020 SCC OnLine Bom 821 , decided on 21-07-2020]

Hot Off The PressNews

The National Human Rights Commission, NHRC, India has issued to notices to the Chief Secretary and DGP, Uttar Pradesh after taking sou moto cognizance of media reports that due to the alleged in action by the authorities on their complaint of sexual harassment, a mother-daughter duo from Amethi attempted self-immolation in front of the Lok Bhawan in Lucknow on 17.07.2020. Reportedly, the mother with 90% burn injuries died and the daughter with 15% burns is undergoing treatment in the civil hospital.

The Commission has given four weeks times for the response calling for a detailed report in the matter including action taken against the guilty and the action taken on the complaint reportedly lodged by the victims alleging sexual harassment by someone residing in their neighbourhood. The report must include the status of the medical treatment being provided to the injured woman, her health conditions and any relief given by the authorities to the injured and the aggrieved family.

Issuing the notices, the Commission has observed that the recourse taken by the victims cannot be justified but it indicates towards the reckless attitude of the authorities, who seemingly failed to take a timely action on the complaint lodged by the victims leveling serious allegations of sexual harassment against one of their neighbourers. This is a serious issue of violation of human rights. Had a timely action been initiated, the women may not have been forced to take such an extreme steps.

According to media reports, the family members of the victims have also alleged ill treatment by police personnel and the doctors at the Civil Hospital, when the son of the deceased woman visited her in the hospital. Reportedly, four persons including Amethi District AIMIM president and a local congress party leader have been arrested by the police. It is also reported that the police or the local intelligence unit had no information that the women were going to Lucknow.


National Human Rights Commission

Press Release dt. 24-07-2020

Case BriefsForeign Courts

Supreme Court of Sri Lanka:  A Full Bench of  Buwaneka Aluwihare PC, P. Padman Surasena and E A G R Amarasekara JJ upheld the indictment of a senior lecturer of the University of Colombo, holding that his indictment and subsequent non-reinstatement by the University’s disciplinary authority does not violate his Fundamental Rights.

The petitioner was the Head of the Department (HoD) of Mass Media and Senior Lecturer at the University at the time of his indictment. Many members of the academic staff had written complaints against him, two lady probationers working under him had accused him of sexual harassment and abuse of authority, and six other senior lecturers had made a joint complaint setting out his alleged unacceptable general conduct. After a preliminary investigation by the university, he was indicted and the disciplinary committee’s charge sheet charged him with sexual harassment, engagement in discriminatory practices and creation of a hostile work environment for the complainant-probationers.

The petitioner contended that the probationer’s complaints were fake and that his indictment and non-reinstatement violated several provisions of the University Establishments Code. He claimed that the respondents had acted illegally, unreasonably and beyond their powers in indicting him and not reinstating him after the completion of one year since his indictment.

Court dismissed all but one of the petitioner’s claims on the grounds that he did not file the instant application regarding his contentions about the falsity of the probationers’ complaints, the arbitrariness of his interdiction and the transcendence of the disciplinary proceedings beyond the valid period within the one-month period specified in Article 126(2) of the Constitution.

With respect to the claim about his reinstatement, however, the Court found the infringement of his rights to be of a continuing nature, and thus, not time-barred. It applied a provision in a Public Administration Circular dated 30-12-2011, which stated that if a disciplinary authority failed to conclude its proceedings and issue an order within one year, it would have the discretion to reinstate the accused officer and pay him his salary. Since the authority clearly enjoys this discretion, the petitioner’s non-reinstatement cannot be taken to mean a violation of his Fundamental Rights to equal protection of the law under Article 12(1) of the Constitution. In view of the fact that reinstating him, while the two probationary-lecturers, who testified against him served under him, would not be in the best interests of justice, the Court held that the “non-reinstatement of the Petitioner by his disciplinary authority cannot be viewed as a wrong exercise of the discretion by the said disciplinary authority.” Appeal was dismissed in the above-view. [W M P N Weerasinghe v. University of Colombo, 2020 SCC OnLine SL SC 2 , decided on 20-07-2020]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, CJ and R.C. Khulbe, J., dismissed a writ petition that was filed questioning that whether sole testimony of the victim of sexual abuse was sufficient to hold the perpetrator guilty of misconduct in a departmental enquiry and whether dismissal of service imposed on the perpetrator as a consequence thereof was grossly disproportionate? The Court observed that sole testimony, of the victim of sexual abuse, was sufficient to hold the perpetrator guilty of misconduct in a departmental enquiry, if it was found reliable.

The petitioner was nominated, for the para-medic course for a three day period as a guest instructor for an outdoor exercise with trainees, for conducting a half day theory class, a half night march exercise at the S.S.B. Academy Gwaldum, and to impart them training on military topics such as night navigation and map reading. After completion of the night training exercise, the petitioner, along with several other members including the two lady trainees, sat in the cabin of a truck which was coming back to Gwaldum station. It is in the cabin of the truck that the petitioner is said to have molested one of the lady trainees, and to have sexually harassed her.

The Counsel for the petitioner, Sanjay Raturi, contended that he was held guilty on the self-serving sole testimony of the complainant (Trainee); no other witness had corroborated the complainant’s testimony; and the complainant’s self-serving evidence cannot form the basis for holding the petitioner guilty of the charges.

The Court noted the well settled principle laid down in various Supreme Court decisions that an evidence of the victim of sexual assault is enough for conviction, and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The Bench observed that:

As the sole testimony of a prosecutrix, in a criminal case involving sexual harassment and molestation, would suffice if it is otherwise reliable, there is no justifiable reason not to accept the sole testimony of a victim, of sexual harassment and molestation, in a departmental inquiry as the enquiry held by a domestic Tribunal is not, unlike a Criminal Court, governed by the strict and technical rules of the Evidence Act. A disciplinary proceeding is not a criminal trial. The standard of proof required is that of preponderance of probabilities, and not proof beyond reasonable doubt. In the present case, the testimony of the complainant gives graphic and shocking details of acts of sexual molestation perpetrated by the petitioner on her so there isn’t any reason as to why the Enquiry Committee should be faulted for largely relying on the testimony of the complainant and there is no reason to interfere in the enquiry. [Bhuwan Chandra Pandey v. Union of India, 2020 SCC OnLine Utt 268 , decided on 15-06-2020]

Case BriefsHigh Courts

Kerala High Court: Alexander Thomas, J., allowed a bail application subject to stringent conditions in child sexual harassment case on the ground that no prima facie offence was made out and the accused already suffered detention for 40 days. 

The prosecution had alleged that the victim aged 13 years was given a lift on a scooter by the petitioner, and the petitioner took the victim to an isolated house and pressed his chest and then kissed his lips, etc. 

Counsel for petitioner, T.K. Vipindas, contended that the allegations are false and fabricated. He also argued that the facts in the FIS do not fulfill the ingredients of Section 377 of the Penal Code, 1860. No allegations were made that the petitioner indulged in anal penetration or any assault using the genital organ. Thus the offence under Section 377 is not made out in the present case. The petitioner further contended that even admitting the allegations, petitioner committed a non-penetrative assault under Section 7 of the Protection of Children from Sexual Offence (POCSO) Act, 2012 punishable under Section 8 of the POCSO Act. The fact that the petitioner had already suffered detention for 40 days, further detention was not justified and proper, thus considering the nature of allegation the court may release him on bail subject to any strict conditions. 

Public Prosecutor, T.R. Renjith contended that if the petitioner was released on bail there is every possibility that of the petitioner intimidating and influencing the witnesses, victim and his family members. 

The Court after considering the allegations and the fact that the petitioner had already suffered detention for 40 days, was let out on bail, on his executing bond for Rs 40,000 and furnishing two solvent sureties, subject to stringent conditions. The court imposed the following conditions – petitioner has to report to the investigation officer on 2nd and 4th Saturday for three months, he shall not visit victim’s residence or the educational institution of the minor victim, he shall not enter the territorial limits of the police station, where the victim resides. In case of a genuine emergency, the petitioner is allowed to visit the said area after taking permission from the IO. In case of violation of any of the conditions, the court may consider the bail as cancelled. [Rajeevan v. State of Kerala, 2019 SCC OnLine Ker 3993, decided on 06-11-2019]

Case BriefsHigh Courts

Delhi High Court: Manoj Kumar Ohri, J. allowed a revision petition filed against the judgment of the trial court whereby the petitioner was convicted for offence punishable under Section 354-A IPC (sexual harassment).

On the day of the incident, the petitioner was acting as an invigilator inside the examination hall where the complainant was writing her History subject examination paper. It was alleged that the petitioner made unwelcome physical contact with the complainant involving explicit sexual overtures against her. Further, he met the complainant nearby the bus stand and uttered certain words towards her intending to insult her modesty and intrude upon her privacy. The trial court found the allegations proved and convicted the petitioner as aforesaid. Aggrieved thereby, the petitioner approached the High Court.

At the outset, the High Court noted that an accused can be convicted on the sole testimony of the prosecutrix, but in the instant case, the Court was of the opinion that the complainant’s testimony was not such as to inspire confidence. It found many discrepancies and improvements in her statements as was evident from the record of the case.

Perusing the impugned order, it was noted, inter alia, that the trial court, as well as the Appellate Court, relied upon the suggestion given on behalf of the petitioner to the complaint that she had already obtained the phone number of the petitioner after leaving the examination hall and that is how she knew the same. The Appellate Court observed that the suggestion essentially goes to show that the petitioner himself had admitted the possession of his phone number with the complainant. However, in High Court’s opinion, the question of whether a suggestion given by the counsel on behalf of the accused can be considered as admission and bind the accused under Section 18 of Evidence Act is to be answered in negative. Referring to earlier decisions, according to the Court, the plea or defence put forward by the lawyer of the accused cannot bind him. The lawyer has no implied authority to admit the guilt or facts incriminating the accused.

In light of the inconsistencies and the improvements made by the complainant during her deposition and in absence of any corroborating evidence to support her statement, the Court was of the opinion that the testimony of the complainant does not inspire confidence. It was held that the prosecution failed to prove the case against the petitioner, the finding of guilt recorded by the trial court and the Appellate Court was manifestly illegal and perverse. Resultantly, the revision petition was allowed. The petitioner’s conviction was set aside. [Pawan Kumar v. State, 2019 SCC OnLine Del 10452, decided on 10-10-2019]

Op EdsOP. ED.

Sexual harassment is a form of sex discrimination projected through unwelcomed sexually determined behaviour.[1] It is a violation of women’s right to life, equality and liberty; creates an insecure and hostile work environment for them.[2] It permeates all strata, ranging from unorganised sector to the corporate.[3]

In India, the development of laws related to sexual harassment has a relatively recent genesis. Prior to 1997, there was no mechanism to deal with complaints made to the authorities by women with regard to sexual harassment at the workplace.[4] The judgment in Vishaka v. State of Rajasthan[5] was the first step where the Supreme Court held the impugned practice to be a violation of human rights. It was a case of the gang rape of Bhanwari Devi, an employee of the Rural Development Programme of Government of Rajasthan who attempted to stop child marriage.

Nearly 15 years after the issuance of Vishaka guidelines, Parliament passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Analysis of the Act

The said Act is applicable to the country as a whole whether in public, private, formal or informal sectors. The Act attempts to protect vulnerable workers who are not covered by the labour laws or are a part of a union such as domestic workers. The downside in the case of domestic workers being covered in this Act is that their remedy is only a police complaint of sexual harassment, under Section 509 of the Penal Code, 1860 (IPC).

The statute makes it mandatory for all employers, whether in the public or private sector to set up an Internal Complaints Committee (ICC) in order to enquire into complaints of sexual harassment at the workplace, take preventive measures to ensure that the work environment maybe be conducive to women.[6]

The Act provides that complaint of sexual harassment has to be made to ICC or the Local Complaints Committee (LCC) within a period of three months from the date of the incident and in case of a series of incidents, within a period of three months from the date of the last incident.[7] This is an unfortunate provision as the courts from the very beginning have recognised that sexual harassment at workplace entails a relationship of domination between perpetrator and the victim, as a result of which the victim is often unable to protest apprehending adverse consequences upon her conditions of employment, career advancement and even her job itself. This time-limit has not been envisaged by Vishaka[8] judgment or any other judicial precedent. The statute itself permits filing of complaints by persons other than the aggrieved woman because in such cases it is not always possible for the victim herself to come forward.[9] Thus, it is unreasonable that the aggrieved woman’s right to approach the complaints mechanism is extinguished merely because of the time-lapse.

The nature of punishment can be in the form of a written apology, warning, reprimand withholding of promotion, withholding of pay rise or termination from service.[10] However, the punishment imposed can only the ones provided under the relevant service rules or labour law or contract of employment. Monetary compensation can also be paid by the respondent to the complainant, which is deducted from his salary or wages and this provision is irrespective of anything contained in the service rules.[11] The amount of compensation is calculated on the basis of emotional distress faced by the victim, loss in career opportunity, income and financial status of the respondent.[12] A fundamental critique of this is that the power to decide compensation is vested in the hands of a non-judicial body as it is essentially a judicial function.[13] Also, there is no further guidance provided as to how to arrive at the sum of compensation.

The Act provides that before initiating an enquiry, the LCC or ICC has an option to settle the matter through conciliation only at the request of the aggrieved woman, although no monetary compensation can be a part of this process.[14] This provision, however, is severely criticised; the Verma Committee stated that any such attempt is yet another way to undermine the dignity of women.[15] It also ignores the mandate of the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) and the Constitution of India which hold it unethical to expect to negotiate an outcome between the aggrieved woman and alleged perpetrator and being against fundamental rights respectively.

Section 14 of the Act provides for punishment of the complainant in the event of the false or malicious complainant. It clarifies that mere inability to substantiate a complaint or provide adequate proof will not attract action against the complainant. However, it is problematic as subjecting the woman to such fear and distress even before bringing up the complaint defeats the very purpose of the Act. If such provisions have to be made at all, the power to decide should be in the hands of courts of law as opposed to bodies such as ICC or LCC. Right to appeal is also available in accordance with provisions of the service rules applicable or where no such rules exist, under the Industrial Employment (Standing Orders) Act, 1946.[16] The statutory limitation is 90 days from the date of such action/recommendation. Appellate authority varies from State to State. The Act also confers duties upon the employer[17] to take steps to ensure a safe working environment for women employees.

With regard to examine allegations of sexual harassment levelled against Judges/Chief Justices of High Courts (HCs) and Judges of the Supreme Court, the decision rendered in C. Ravichandran Iyer v. A.M. Bhattacharjee[18] laid down the process of “in-house procedure”. In this, the allegations against a Judge are examined by his peers. Its constitution is under the charge of the Chief Justice of India; it is confidential and kept out of public domain to preserve the credibility of the institution. However, in Addl. District and Sessions Judge ‘X’ v. High Court of M.P.[19], it was held that the Bench examining such allegations should not consist of the Judges from the same court.

Comparative Analysis with Laws Across the World

The 2013 Act like the provisions in Australia, Switzerland is inclusive as far as widening the definitions of sexual harassment, workplace, and aggrieved woman are concerned unlike countries such as Brazil where it is restricted to persons in a superior position asking for sexual favours[20] or Germany where it is not punishable by any law at all. But it lacks strict punishments such as imprisonment and large sums of fine payable, in countries such as France, Zimbabwe, and Israel.

It is unfortunate that the 2013 Act does not place any obligation on the employer on the grounds of vicarious liability to give monetary compensation to the aggrieved woman. To this extent, the aggrieved woman has to approach the court for damages by the way of tort law.[21] In the United Kingdom (UK), an employer can be held vicariously liable for the harassment by co-workers. This has been illustrated in cases such as Jones v. Tower Boot Co. Ltd.[22] and Chief Constable of Lincolshire Police v. Stubbs[23]. In the United States of America (USA) also, the employer is vicariously liable but in defence, he/she only needs to demonstrate that immediate action was taken once the incident had come to the attention of the employer.[24]

In India, in only a limited number of cases courts have accorded compensation to aggrieved women following the failure of employers to comply with Vishaka guidelines. Manisha Sharma v. Union of India[25] was one such case, where there was sexual harassment at the workplace in the Northern Railways. The Court held that the composition of the Inquiry Committee was not as per the Vishaka guidelines, thus the Indian Railways was held vicariously liable and had to pay compensation.

There is a dire need to address the loopholes in the present law, in order for it to be more pertinent for women and the duty of employers to ensure a lawfully constituted and approachable Complaints Committee.


  IIIrd year, BA LLB (Hons.), National Law University, Delhi, e-mail: simran.jain@nludelhi.ac.in.

[1]   Vishaka v. State of Rajasthan, (1997) 6 SCC 241: AIR 1997 SC 3011.

[2]   Geetha K.K., Bill on Sexual Harassment: Against Women’s Rights, (2012), Economic and Political Weekly, Vol. XLVII No. 3.

[3]   Ibid.

[4]   Indira Jaising, Sexual Harassment at Workplace (Universal Law Publishing Co. Pvt. Ltd., 2014) p. 2.

[5]   Vishaka v. State of Rajasthan, (1997) 6 SCC 241.

[6]   S. 4(2) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (2013 Act).

[7]   S. 9(1) of the 2013 Act.

[8]   Vishaka v. State of Rajasthan, (1997) 6 SCC 241.

[9]   Indira Jaising, Sexual Harassment at Workplace (Universal Law Publishing Co. Pvt. Ltd., 2014).

[10]  R. 7(6) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (2013 Rules).

[11]  S. 13(3)(ii) of the 2013 Act.

[12]  S. 15 of the 2013 Act.

[13]  Indira Jaising, Sexual Harassment at Workplace (Universal Law Publishing Co. Pvt. Ltd., 2014).

[14]  S. 10 of the 2013 Act.

[15]  Justice J.S. Verma Committee, Report of the Committee on Amendments to Criminal Law, 66 (23-01-2013).

[16]  R. 11 of the 2013 Rules.

[17]  S. 26 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

[18]  (1995) 5 SCC 457.

[19]  (2015) 4 SCC 91.

[20]  Ungender, Ensuring Diversity and Inclusivity through Legal Compliance <https://www.ungender.in/single-post/Sexual-Harassment-workplace-laws-across-the-world>

[21]  Indira Jaising, Sexual Harassment at Workplace (Universal Law Publishing Co. Pvt. Ltd., 2014).

[22]  1996 EWCA (Civ) 1185 : 1997 ICR 254.

[23]  1999 IRLR 81.

[24]  Ibid.

[25]  2012 SCC OnLine Del 6352 : (2013) 196 DLT 741.

Hot Off The PressNews

Supreme Court: A Supreme Court-appointed one-man panel, holding inquiry into allegations of “larger conspiracy” to frame Chief Justice of India Ranjan Gogoi, has completed the inquiry and is likely to submit the report by mid September.

Sources said Tuesday that Justice A K Patnaik, a retired Supreme Court judge who was appointed by the Supreme Court, examined advocate Utsav Singh Bains, who had made several allegations including fixing of benches in the Supreme Court.

“The affidavit filed by Bains and other documents were examined by the panel. Now, the panel will complete the report and submit it to the Supreme Court in a sealed cover by second week of September,”

Justice Patnaik examined the lawyer from 11 am to 1 pm and his statement was recorded.

The Court had on April 25 constituted the panel to hold inquiry into the allegations of Bains and had asked the Directors of CBI and Intelligence Bureau (IB) as also the Delhi Police Commissioner to cooperate with Justice Patnaik as and when required by him.

A special 3-judge bench of Arun Mishra, Rohinton Nariman and Deepak Gupta, JJ  had said that on the completion of inquiry, Justice Patnaik will file a report in a sealed cover before the court after which the matter will be heard again.

The bench, however, clarified that the outcome of the inquiry shall not affect the in-house procedure/inquiry which is pending in the administrative side in any manner whatsoever. It said,

“this inquiry shall not be with respect to the alleged misbehaviour involving Hon’ble The Chief Justice of India. This is with respect to the contents of the affidavits, whether the affidavits are correct or not.”

On May 6, CJI had got the clean chit from the Supreme Court’s In-House Inquiry Committee which “found no substance” in the allegations of sexual harassment levelled against him. The In-House Inquiry Committee was headed by Justice S A Bobde and comprised of two woman judges of the apex court — Justices Indu Malhotra and Indira Banerjee.

While hearing claims made by Bains that there was a “larger conspiracy” to frame the CJI, the Court had said that there is systematic attempt/game against the Supreme Court. It said,

“We are in anguish the way this institution is being treated for the last 3-4 years is as if this institution will die. This is the court made by the likes of Fali Nariman, Nani Palkhiwala, K Parasaran. … Every day we hear about bench-fixing, every day we hear of wrong practices in this court. This has to go. The day has come when we have to rise to the occasion and tell the rich and powerful that they cannot run the Supreme Court. … Don’t provoke us anymore. We want to tell the rich and the powerful that they are playing with fire. This is not the way a country can run,”

(With inputs from PTI)


Also Read: 

Sexual Harassment allegations against CJI: 2-judge bench to hear the matter after CJI opts out mid-way

Sexual Harassment allegations against CJI: Order on advocate’s claims of conspiracy to frame CJI Gogoi reserved

Sexual Harassment allegations against CJI: Justice AK Patnaik to look into ‘conspiracy’ angle

Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. dismissed a petition filed by the State against the order of the trial court whereby the accused was discharged of the offence punishable under Section 12 (punishable for sexual harassment) of the Protection of Children from Sexual Offences Act, 2012 (POCSO).

The subject FIR was registered on the complaint of the prosecutrix alleging that the accused was her first cousin and they were also friends. It was alleged that they used to talk over the phone and accused recorded some conversation with her, because of which she stopped to him. Further, that on the date of the incident, when the prosecutrix was coming back from school he stopped her mid-way and held her hand and misbehaved with her and asked her as to why she was not talking to him and threatened her and made her sit on his scooty and took her to Rakabganj Gurudwara. Pursuant to this incident, FIR was registered.

The trial court, in the impugned order, while framing charge against the accused under various sections of the Penal Code, discharged him of the offence under Section 12 of the POCSO Act. Trial Court was of the view that the only allegation against the accused was that he had caught hold of the hand of the victim and forcibly took her to Gurudwara on his scooty.

Meenakshi Dahiya, APP for the State, challenged the order of discharge. Per contra, Rakesh Pal Singh, Advocate for the accused, opposed the petition.

The High Court noted that perusal of the record as also the statement was given by the prosecutrix does not prima facie show that any act was done by the accused with any sexual intent. The allegations against the accused, who was the first cousin of the victim, showed that he was upset with the victim not talking to him. The Court observed, “The substantive offence (Section 11) for which punishment is prescribed under Section 12 POCSO, clearly indicates that the precondition for the section to be attracted is that an act, as enumerated therein, is done with sexual intent. Clearly in the subject case, from the allegations against the respondent, no such intention even prima facie is coming forward.”

In such view of the matter, it was held that there was no infirmity in the impugned order. The petition was, therefore, dismissed. [State (NCT of Delhi) v. Baljeet Singh, 2019 SCC OnLine Del 9109, decided on 11-07-2019]

Case BriefsHigh Courts

Kerala High Court: A Division Bench of K. Harilal and T.V Anil Kumar, JJ. dismissed an appeal made by the maternal grandparents of the child after taking into consideration, the welfare of the child.

This case is related to the custody of the child. In this case, appellant – maternal grandparents of the child – submitted before the Court that their daughter Sajna was married to the respondent and she was later found dead in her matrimonial house in a suspicious condition. They further claimed that the 2-year girl child of the appellant was always taken care of by them and the respondent- father never took care of the child as if he was not interested in the child. A petition was filed by the grandparents in the Family Court for a decree of perpetual prohibitory injunction restraining the respondent from taking forcible custody of the child. The Family Court dismissed the petition. Aggrieved thereby, this appeal had been filed by the grandparents.

Learned counsels for the appellant Jacob Sebastian and K.V Winston submitted that after the suspicious death of the appellant’s daughter, the child was taken care of by them and the respondent declined to take care of her. A case was also lodged against the respondent in the police station under Sections 498-A, 304-B, 302, 201 and 149 of the Penal Code, 1860. Further, the respondent was a drunkard and spendthrift who used to ill-treat their deceased daughter and demanded dowry. His cruel conduct towards his wife resulted in her death. Respondent remarried for his pleasure, forgetting that he had a child to look after. Thus, he was unfit to seek permanent custody of the child. They also alleged respondent to have sexually harassed the child.

Learned counsels for the respondent, G. Sreekumar averred that after the death of his wife, respondent alone had maintained the child and taken care of her affairs. Appellant or her family members never took care of the child. He was not responsible for the death of his wife and as a matter of fact, her death was due to heart failure. She was an epileptic patient even before marriage which had been suppressed. It was claimed that the respondent was a driver by occupation and able to meet the financial needs of the child.

The Court observed that whenever there is a rival claim for guardianship, the court’s power to appoint the most suitable person among the contestants could be exercised only upon taking into view those considerations which weigh in favour of the welfare of the child. The Court also observed that the allegations made by the appellant were false. Also, the respondent earned well whereas the appellants were old and had less financial means. Moreover, the allegation made regarding sexual harassment was false.  The Court thus dismissed the appeal and gave permanent custody of the child to the respondent-father. However, appellants were allowed to meet the child on the premises of the Family Court every Saturday from 10:30 AM to 4:00 PM.[Suhara v. Muhammad Jaleel, 2019 SCC OnLine Ker 1237, decided on 10-04-2019]

Hot Off The PressNews

The In-House committee, headed by Justice SA Bobde, also comprising Justices Indira Banerjee and Indu Malhotra, found “no substance” in the sexual harassment allegations levelled by a former Supreme Court employee against the CJI Ranjan Gogoi.

The notice published on Supreme Court website read that the report has been submitted to the next senior judge competent to received the report i.e. Justice Arun Mishra. A copy of the report has also been handed over to the Chief Justice. It also stated that according to the verdict in Indira Jaising v. Supreme Court of India, (2003) 5 SCC 494, the report of any Committee constituted as a part of in-house procedure can’t be made public.

The former employee had submitted her complaint against the CJI in an affidavit form to 22 Supreme Court judges on April 19.


Also Read: 

Sexual Harassment allegations against CJI: 2-judge bench to hear the matter after CJI opts out mid-way

Sexual Harassment allegations against CJI: Order on advocate’s claims of conspiracy to frame CJI Gogoi reserved

Sexual Harassment allegations against CJI: Justice AK Patnaik to look into ‘conspiracy’ angle

Case BriefsSupreme Court

Supreme Court: A special 3-judge bench of Arun Mishra, Rohinton Nariman and Deepak Gupta, JJ has appointed former Supreme Court judge, Justice A. K. Patnaik, to hold an inquiry into the allegations made in the affidavits.to probe an advocate’s claim that there was a “conspiracy” to frame Chief Justice Ranjan Gogoi in a sexual harassment case.

The bench, however, clarified that the outcome of the inquiry shall not affect the in-house procedure/inquiry which is pending in the administrative side in any manner whatsoever. It said,

“this inquiry shall not be with respect to the alleged misbehaviour involving Hon’ble The Chief Justice of India. This is with respect to the contents of the affidavits, whether the affidavits are correct or not.”

The Court also asked the Director of Central Bureau of Investigation (CBI), the Director of Intelligence Bureau (IB) and the Commissioner of Police, Delhi, to cooperate with the Hon’ble Judge as and when their services are required at any point of time for the purpose of investigation of the matter.

Asking Justice Patnaik to submit a report to this Court on the basis of the inquiry as to the allegations mentioned in the affidavits, the bench said that it will next take up the matter after the report is submitted.

On 24.04.2019, Advocate Bains had submitted an affidavit in Court in a sealed cover. The bench had directed that,

“It is to be kept in a sealed cover in total confidentiality, as it contains highly sensitive information pertaining to the alleged conspiracy, according to him, to frame Hon’ble The Chief Justice of India into a case of sexual harassment.”

Naming Tapan Kumar Chakraborty and Manav Sharma and others in his affidavit, Advocate Bains had mentioned that,

“the disgruntled employees have ganged together in order to frame Hon’ble The Chief Justice of India in the false charge of sexual harassment after their dismissal from their services.”

He has also alleged that they have asserted that they could fix the Bench of the Judges.

The Court had, on 24.04.2019, said,

“Considering the seriousness of the allegations as the system has absolutely no place for such fixers, we cannot leave the matter at that. It becomes our responsibility to keep this Institution clean as well as to ensure that the image of this Institution is not tarnished by such allegations to undertake the probe in the matter.”

[In Re : Matter of great public importance touching upon the Independence of Judiciary, 2019 SCC OnLine SC 604, order dated 25.04.2019]


Also read:

Sexual Harassment allegations against CJI: Order on advocate’s claims of conspiracy to frame CJI Gogoi reserved

Sexual Harassment allegations against CJI: Advocate claiming ‘conspiracy’ to appear before SC tomorrow

Sexual Harassment allegations against CJI: 2-judge bench to hear the matter after CJI opts out mid-way

Hot Off The PressNews

Supreme Court: A special 3-judge bench of Arun Mishra, Rohinton Nariman and Deepak Gupta, JJ has reserved its order on the issue of setting up an inquiry committee to probe an advocate’s claim that there was a “conspiracy” to frame Chief Justice Ranjan Gogoi in a sexual harassment case. The bench will pronounce its order later in the day.

During the course of the hearing, advocate Utsav Bains, who made the claim about a conspiracy to frame Justice Gogoi, submitted an additional affidavit on the direction of the court. In his affidavit, Bains submitted that he cannot share the names of the “fixers” as “privileged communication under the Advocates Act” cannot be disclosed.

Attorney General KK Venugopal said the claim of privilege under Section 126 of the Evidence Act is not applicable to any communication between Bains and the alleged fixers. He said that a court can ask for any document relevant to a case.
Supporting the Attorney General’s argument, Supreme Court Bar Association (SCBA) president Rakesh Khanna submitted that there is “no sacrosanct right” to withhold any document. He said that the court has the power to seek production of documents over which privilege
is claimed.

“Whatever he (Bains) divulged to us, in any case, our power to inspect the documents is there,”

Mishra, J said,

“There is systematic attempt/game, so many things have not come out. The truth has not come out. These things are in the air for a long time and people of the country must know the truth. There has been a systemic attack against the Supreme Court,”

“We are in anguish the way this institution is being treated for the last 3-4 years is as if this institution will die. This is the court made by the likes of Fali Nariman, Nani Palkhiwala, K Parasaran. … Every day we hear about bench-fixing, every day we hear of wrong practices in this court. This has to go. The day has come when we have to rise to the occasion and tell the rich and powerful that they cannot run the Supreme Court. … Don’t provoke us anymore. We want to tell the rich and the powerful that they are playing with fire. This is not the way a country can run,”

Senior advocate Indira Jaising told the court that the inquiry headed by Justice S A Bobde into the sexual harassment charge and the case before the court should be conducted together.

Mishra, J, however, clarified that that the outcome of this inquiry into the conspiracy charge will not affect that inquiry into the sexual harassment charge. He remarked,

“Three to five per cent lawyers are giving a bad name to this institution. Don’t provoke us any further, we are worried as judges. We will see
how it can be an independent inquiry.”

On Tuesday, a three-member committee of the court led by Justice Bobde, the senior-most judge after the Chief Justice, was formed to look into the allegation of sexual harassment made by a dismissed employee against Justice Gogoi. The other two members of the committee are Justices NV Ramana and Indira Banerjee. Justice Ramana is the third in the seniority list in the Supreme court and will the Chief Justice after the retirement of Justice Bobde.

(Source: ANI)


Also read:

Sexual Harassment allegations against CJI: Advocate claiming ‘conspiracy’ to appear before SC tomorrow

Sexual Harassment allegations against CJI: 2-judge bench to hear the matter after CJI opts out mid-way

Hot Off The PressNews

Supreme Court: A 3-judge bench of Arun Mishra, RF Nariman and Deepak Gupta, JJ has sought response from advocate Utsav Bains, who claimed that there is a conspiracy to frame up the Chief Justice Ranjan Gogoi in a sexual harassment case. The Court has posted the matter for hearing tomorrow and has sought Utsav Bains’s presence before it.

The bench was hearing a case relating to the sexual harassment allegations against CJI Gogoi. The charges have been leveled by a dismissed
woman employee of the Supreme Court.

Advocate Utsav Bains on Monday filed an affidavit saying there was a larger ‘conspiracy’ playing out to compel the CJI to resign. He claimed that when he refused to take up the case on finding several loopholes in her story, the person offered him Rs 50 lakh, which was raised to Rs 1.50 crore. Bains further claimed that on inquiry, he found that “certain fixers”, who claim to be engaged in illegally managing judgments in exchange for cash, were behind the plot as the Chief Justice had taken decisive action to crack down on such fixers.

“The said fixer Romesh Sharma was running a ‘cash for judgment’ racket in cahoots with businessmen and politicians and had exercised considerable influence for years, which ultimately was brought to an end by the present CJI, as he took decisive action against them after becoming CJI.”

He further claimed,

“There was a conspiracy against the Chief Justice of India to force him to resign and thereby threaten every judge with dire consequences for being free and fearless in dispensing justice while pronouncing judgments against the rich and powerful in the country.”

On Saturday, a Special bench met for a sitting to discuss online media reports of sexual harassment allegations against CJI Ranjan Gogoi. The bench said,

“The independence of the judiciary is under very serious threat and there is a larger conspiracy to destabilise the judiciary,”

The hurriedly constituted 3-judge special bench headed by CJI Ranjan Gogoi, in the case related to allegations of sexual harassment against the CJI, was reduced to a 2-judge bench when CJI left it to justices Arun Mishra and Sanjiv Khanna to take a call on the issue of passing judicial order.

As the hearing progressed, the CJI opted out midway from passing any judicial order and said,

“I am not going to be a part of the judicial order. Justice Arun Mishra is the senior most judge available in Delhi and he will dictate the order,”

The bench, however, did not pass any judicial order and left it to the wisdom of the media to decide on the publication of reports in order to protect the independence of the judiciary.

(Source: ANI)

Hot Off The PressNews

Supreme Court: A hurriedly constituted 3-judge special bench headed by CJI Ranjan Gogoi, in the case related to allegations of sexual harassment against the CJI, was reduced to a 2-judge bench when CJI left it to justices Arun Mishra and Sanjiv Khanna to take a call on the issue of passing judicial order.

As the hearing progressed, the CJI opted out midway from passing any judicial order and said,

“I am not going to be a part of the judicial order. Justice Arun Mishra is the senior most judge available in Delhi and he will dictate the order,”

The notice issued by the Supreme Court registry, that became public around 10:15 AM said,

“Take note that a special bench consisting of the Chief Justice of India, Justices Arun Mishra and Sanjiv Khanna is being constituted to have a special sitting at 10:30 AM. Today, i.e. the 20th April, 2019 in the Chief Justice’s Court to deal with a matter of great public importance touching upon the independence of judiciary, on a mention being made by Tushar Mehta, Solicitor General.”

When contacted, Supreme Court Secretary General Sanjeev Sudhakar Kalgaonkar said the story come out in several news portals Saturday morning around 8-9 AM and they came to know about it at around 9-9:30 AM. He said the matter was mentioned before the CJI by Solicitor General Tushar Mehta and the court took it up.

On the query that the CJI’s name is not reflected in the order uploaded on the Supreme court website, Kalgaonkar said the CJI mentioned in the court whatever his lordship wanted to say and, thereafter it was taken over by the other two judges on the judicial side.

He also made it clear that the CJI is the “master of roster” and “whatever bench the lordship will constitute, the said bench will hear the matter” and it will listed for further hearing in due course.

(Source: PTI)

Hot Off The PressNews

MJ Akbar had filed a case against Priya Ramani alleging her of defaming him by leveling the charges of sexual misconduct during the MeToo campaign.

Ramani, who appeared before Additional Chief Metropolitan Magistrate Samar Vishal, however, pleaded not guilty and claimed trial.

MJ Akbar had filed a defamation case against her, stating the cause that the article published by Ramani in which she had stated she was sexually harassed by MJ Akbar in the past. Several women had raised their voices in support of Ramani along with the ones who had been the victim of the same.

Patiala House Court will hear the case next on 04-05-2019 and granted permanent exemption to Ms Ramani from personal appearance. She was granted bail on 25-02-2019.

MJ Akbar’s legal team had told the court that Priya Ramani damaged his reputation by levelling “false, wild and baseless allegations”.

[Source: NDTV]


#MeToo | Bail granted to Journalist Priya Ramani in the defamation case filed by MJ Akbar

Hot Off The PressNews

As reported by media, Journalist Priya Ramani appeared in the Patiala House District Court for the defamation case filed by MJ Akbar (Former Union Minister).

Priya Ramani was the first woman to accuse MJ Akbar of sexual allegations during the “#me too” campaign.

MJ Akbar had filed a defamation case against her, stating the cause that the article published by Ramani in which she had stated she was sexually harassed by MJ Akbar in the past. Several women had raised their voices in support of Ramani along with the ones who had been the victim of the same.

Therefore, today on appearance at the Patiala House District Court, Ramani was granted bail with a bond of Rs 10,000 by Additional Chief Metropolitan Magistrate, Samar Vishal.
Ramani after the court proceedings gave a statement that “truth is her defence” and after the next date it will be her turn to tell the story.

The next date of hearing is fixed to be 10-04-2019.

[Source: ANI]

Law School NewsOthers

Partners for Law in Development (PLD) in collaboration with the GNLU Centre for Law and Society (GCLS) is conducting a one day workshop on Building Consent Culture: Preventing Sexual Harassment at the University on February 11, 2019, i.e., Monday from 3 P.M. onward.
The discussion shall raise pertinent questions regarding the agency of an individual with respect to her/his sexuality, as well as denial in the context of harassment. It promises to be a step towards initiating dialogue, educating and raising awareness, while also inculcating a culture of consent at our campus.
We invite you to register for the Workshop through the registration links available here (English) and here (Hindi). A teaser for the Workshop may be found here. Kindly contact the undersigned or Ms. Chaitra S. (+91-9880212736) in case of any queries.
Case BriefsTribunals/Commissions/Regulatory Bodies

Income Tax Appellate Tribunal, Mumbai (ITAT): A Bench comprising Saktijit Dey (JM) and Manoj Kumar Aggarwal (AM), allowed actor Sushmita Sen’s appeal against the order of Commissioner of Income Tax (Appeals), holding that the amount received in lieu of sexual harassment claim is not taxable.

The assessee who had received a sum of Rs 1.45 crores from Coca-Cola India Limited as a settlement amount for breach of celebrity engagement contract, submitted only Rs 50 lakhs out of the said amount to tax claiming the balance Rs 95 lakhs to be capital receipts. CIT(A) held that the payment received by assessee actor arose out of cancellation of the contract and did not affect the trading structure of her profession. The termination was a part and parcel of her profession not amounting to the loss of an enduring asset causing abrupt close down of her profession or dislocation of the capital structure of her profession earning apparatus. Therefore, the entire amount was held to be revenue receipts. Aggrieved thereby, the instant appeal was filed.

Submission on behalf of the assessee was that the full amount of Rs 1.45 crores was received as compensation for her sexual harassment by an employee of Coca-Cola. However, out of abundant caution, she considered a sum of Rs 50 lakhs due to her under the contract as her income and submitted the same for taxation.

The Tribunal, after appreciation of materials on record, found that in case of default by Coca-Cola, only Rs 50 lakhs was due to the assessee as per the terms of the contract. She had received Rs.1.45 crore out of which Rs 50 lakhs had been offered to tax. The balance amount of Rs 95 lakhs was received as a settlement in a sexual harassment claim. The appeal was allowed holding that since the said amount did not arise out of exercise of profession by the assessee, it could not be construed to be her income or profits and gains of profession within the meaning of Section 2(24) and Section 28 of the Income Tax Act, 1961.[Sushmita Sen v. CIT, Income Tax Appeal No. 4351/Mum/2015, decided on 14-11-2018]