Sex harassment at SC: Apex court bans advocate for 6 months

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Tuesday, 22 April 2014 By Legally India Bar, Bench & Litigation

Supreme Court: Internal affairs (photo by @aparatbar)

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The Supreme Court sexual harassment committee has banned an advocate from the Supreme Court premises for six months for an incident of sexual harassment.

The Supreme Court Gender Sensitisation and Internal Complaints Committee (GSICC) submitted an inquiry report to the Chief Justice of India (CJI) P Sathasivam on 4 March, recommending that advocate CS Nagesh, against whom a complaint of sexual harassment was made, should be banned from the court premises for a year.

The Supreme Court Chief Justice of India (CJI) ordered that Nagesh should only be banned for six months from the apex court, since there was only one complaint ever made against him and it would allow him to “redeem himself” and “operate as a deterrent against him”:

“Having considered the Report of the GSICC dated 4th March, 2014, which unanimously accepted the Report of the Internal Sub-Committee dated 21st February, 2014, recommending debarring the entry of Mr.C.S. Nagesh, Advocate, into the Supreme Court precincts for a specified period extending upto a maximum period of one year and/or any other orders, as deemed fit, I am of the view that, in the first instance; six months’ bar on entry into the Supreme Court precincts would suffice, considering the fact that, except the instant case, no other incident of this nature relating to Mr. Nagesh has been reported.

This penalty, in my view, would not only allow him to redeem himself but also would operate as a deterrent against him.

GSICC

The Supreme court’s GSICC was set up in November 2013 to hear sexual harassment complaints against advocates and other court staff but not against judges. It is chaired by Justice Ranjana Desai and includes six other lawyers and members of civil society.

At its first meeting the GSICC constituted an internal sub-committee of senior advocates Indu Malhotra, L Nageshwar Rao and HAQ co-director Bharti Ali, which has apparently submitted the inquiry report against Nagesh.

Within two weeks of starting business, the GSICC had received two complaints.

The GSICC was set up after sexual harassment allegations by a former intern of former Supreme Court Justice AK Ganguly were reported. Ganguly, who denied the allegations, resigned from his retirement post as chairman of the West Bengal Human Rights Commission after an internal ad hoc committee, also including Desai, said there was a prima facie claim of sexual harassment made out against him.

In December a similar allegation of sexual harassment was made against former Supreme Court judge Swatanter Kumar, who has been National Green Tribunal chairman since his retirement.

Kumar has denied the allegations and launched legal defamation proceedings against his former intern and three media organisations for reporting on the allegation.

Full order

GSICC Circular 22042014

Comments

Meow Meow pic 22 Apr 2014, 11:31

+2 -1

But what did he actually do?

Poking around 22 Apr 2014, 12:47

+1 -0

Can they actually do this? The SC does not have the power to deprive an advocate of his rights of audience for any length of time. That power rests solely with the Bar Council. Is this punishment tenable in law?

Also, if he challenges the order, will he be permitted to enter the court premises for his own hearing?

Guest 22 Apr 2014, 16:54

+1 -1

Yes, I agree with 2. Under Advocates Act, only BCI has the power to de-enrol or suspend enrolment on disciplinary grounds. Further, that is an administrative action which is subject to judicial review.

Looks like the SC has put the cart before the horse by suspending this advocate, because this action is not a judicial ruling (i.e. not a trial). Very similar to the blunder they did with the sexual harassment charge against A K Ganguly.

Guest 22 Apr 2014, 21:12

Well, since the order only bars him from the premises, I suppose it doesn't technically encroach upon the disciplinary powers of the Bar Council under the Advocates Act. But the point made about restricting his right under the Advocates Act to practice is well taken, and could raise issues about freedom to practice trade & profession. Although it might be argued that a sanction imposed under the Regulations is a reasonable restriction. My problem however is with the regulations themselves, because from what I could figure out from them, they have been framed 'having regard to aforesaid judgments and in terms of Article 142 of the Constitution of India to render full and complete justice." The judgments that are referred to in the Preamble to the Regulations recognize that there is a need to secure a safe working environment and ensure protection from sexual harassment and so on. The trouble is, Article 142 goes only so far as to allow the Supreme Court to pass 'such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it'. Shouldn't the Court be called on to justify its action by giving reasons was to why complete justice is not done in whichever cause or matter it is that is pending before it without the issuance of these Regulations? I feel there should be some limits prescribed for the exercise of this jurisdiction, otherwise it means the Supreme Court can willy nilly do as it pleases under the garb of 'complete justice' without ever being called on to justify the invocation of the exception that allows it to take such extraordinary measures. Moreover, I doubt if Article 142 was inserted into our Constitution to allow the Court to promulgate what are effectively ordinances or frame and enforce 'regulations' which are neither decrees nor orders as commonly understood.

Poking around 24 Apr 2014, 17:03

I would really hope that the Bar Council takes up this matter before the SC. A writ petition is in order. The reason you didn't have a sexual harassment regulation before is because sexual harassment amounts to professional misconduct and there already exists a statutory machinery to punish advocates for the same.

Further, instead of directions a general direction could have been issued to the BCI to frame regulations in line with Vishaka to protect advocates practising in courts from Sexual Harassment.

Interesting question though. As far as I know, the act is silent on the enrolment status of a lawyer who is elevated as a judge? Justice Ganguly retired. But he is still on the rolls of his State Bar Council. Can he be charged with misconduct?

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