Hypocrisy and stereotypes greet former woman ADJ seeking reinstatement in SC

THE Supreme Court's two-judge bench comprising Justices L. Nageswara Rao and B.R. Gavai concluded hearing arguments in the case of Additional District Judge, X vs. The Registrar General of the High Court of Madhya Pradesh and reserved its judgment on Tuesday, but not before the petitioner in the case questioned the use of stereotypes and the hypocrisy of the High Court's counsel, who opposed her reinstatement.

The High Court was represented by the Solicitor General [SG], Tushar Mehta, while the petitioner argued through senior counsel, Indira Jaising.

The petitioner's name is masked in this case as X, as it initially began as a sexual harassment complaint lodged by her against a sitting High Court Judge when she was an Additional District Judge in the Madhya Pradesh Higher Judicial Services since 2011. Her transfer in 2014 was found to be irregular by athree-member Judges Inquiry Committee [JIC], set up by the Rajya Sabha Chairperson, to probe allegations of sexual harassment against a then sitting Judge of the High Court, who has since retired. The committee concluded that although her transfer was irregular, it did not find a nexus between it and the complaint of sexual harassment, which was not proved beyond a reasonable doubt.

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The JIC report, in paragraph 73, stated: "Having made all the above observations, a doubt arises in our mind, as to why, the complainant should make this allegation against the respondent judge. There is no convincing explanation from the respondent judge…. Be that as it may, we are of the view that the evidence on record is not sufficient to establish the charges beyond reasonable doubt to hold the respondent guilty of misbehaviour."

Ms. X submitted that she was forced into giving a resignation pursuant to an illegal, punitive and a mala fide transfer order. She, therefore, requested the court to treat her resignation as a deemed dismissal. She asked the Supreme Court to consider the fact that she had a daughter in the XIIth standard going to a school that did not have a hostel established, and that she was compelled by the circumstances, so created by the High Court, to make a choice being a public servant with the right to work and her being a single mother, as her husband was working in Delhi.

She pointed out that Clause 9 of the Transfer Policy, followed by the High Court, permits extension from the transfer of a judicial officer who has a daughter studying in a crucial year of her education. She further submitted that irrespective of the allegation of sexual harassment, she was suffering in a hostile work environment at the High Court. With the blatant disregard to the transfer policy and her representations, her forced resignation pursuant to such a hostile work environment is constructive discharge, she argued.

She also contended that the present case highlights an institutional failure of the judiciary to safeguard fundamental rights guaranteed in the Constitution to a member of their own fraternity. The guarantee of Article 15 of the Constitution, the cornerstone of gender justice, was disregarded by the High Court on its administrative side, the Supreme Court was told.

She also brought to the Supreme Court's notice that the order dated January 25, 2018, of the full court of Madhya Pradesh High Court, rejecting her representation for reinstatement, violated Articles 14 and 15 in that it was arbitrary, flying in the face of evidence and findings recorded by a competent authority which has come to the conclusion that the transfer order is bad in law.

Solicitor General's defence of the High Court

In his submission, the Solicitor General, Tushar Mehta, argued that mere irregularity in the transfer cannot be a ground to claim that she was tormented, and had to resign. Even if the transfer order was mala fide, can she be allowed to stigmatize the entire institution, he asked. "She had remedies available after the transfer. Her impulsive reaction can't be a ground to invite apex court's intervention", he told the bench. "Judicial officers are discharging sovereign functions; they can't be compared with workmen … Judicial officers can't take impulsive decisions (like resignation on account of transfer)", he added.

The SG then asked what prevented the petitioner to make all the allegations, such as coercion, intolerable pressure, and so on, prior to her resignation. She had the opportunity to vent her problems when she called on senior judges, he suggested.

Elaborating further, the SG asked the bench to follow the "reasonable person acting test", while examining the allegation of coercion. He, therefore, suggested that the 'egoist – how dare you' test cannot be applied in this case. The test to be applied, he submitted, should not be that of an impulsive, hyper-sensitive and arrogant individual. Allegations like coercion and intolerable pressure can stigmatize the entire institution of the judiciary, he added.

Also Read: Woman judge sexually harassed by Madhya Pradesh High Court's Justice Gangele files for reinstatement

Responding to Jaising's submission that the court could use the concept of constructive discharge, first invoked by the U.S.Court of Appeals, Third Circuit in the case of Goss vs. Exxon (1984) and by the U.S. Supreme Court in Pennsylvania State Police vs. Nancy Drew Suders (2004), the SG said principally, our jurisprudence should not be influenced by western jurisprudence.

He also suggested that there are no judicially manageable standards to follow, and certainly, the bench cannot endorse the myopic subjective view of the employee concerned.

Jaising's response

In her response to the SG's submissions, Jaising first denied that there was a delay on the part of the petitioner in approaching the court. "She was pursuing a remedy available in la … participated in the JIC", she submitted.

Jaising questioned the SG's view that if the petitioner is granted the reliefs sought for, it would open the floodgates, and the courts of administration would suffer. "Every case depends on its own facts; therefore, the SG's speculation is only an argument of alarm, and an argument of prejudice, and not law", she told the bench.

She recalled that before the Vishaka case was decided by the Supreme Court, similar arguments were made.

Jaising denied that the petitioner was stigmatizing the institution, as she only described the transfer as mala fide in law, and not fact.

Jaising expressed her surprise and dismay that the SG made light of reliance on foreign law. Citing Article 372 of the Constitution, she said common law continues to be law in India. On the use of the doctrine of "constructive discharge", she said she was entitled to cite it to persuade the bench to accept it as a proposition of law. "The SG's nationalism should be applauded, but I am an internationalist", she quipped.

Jaising also questioned the SG's view that the petitioner should show intention that the court wanted her to resign. Jaising said that there was no need to show intention on the part of the High Court to want her to resign, as she was not claiming damages in her petition. Her only desire is to work with the judiciary, Jaising told the bench.

She could not have gone to the court challenging the transfer instead of resigning, because of the time constraints. She wanted eight months' pause on the transfer because of her daughter's examination, which was declined, Jaising told the bench.

Jaising expressed her surprise that she could not find a single argument in SG's submissions, justifying the transfer, as the burden is on the High Court to justify it. She described SG's claim that similarly situated people were transferred as false.

Jaising also blamed the SG for questioning the petitioner's credibility, by saying that she was stigmatizing the entire judiciary by her allegations. The SG, however, denied that he questioned her credibility.

Jaising, while concluding, also told the bench that the SG was guilty of expressing stereotypical arguments, which were specifically barred by the Supreme Court in a recent case. The phrase 'emotional outbursts", attributed to the petitioner by the SG, is one such stereotype which was used to suggest that women, by nature, are emotional and prone to overreaction. "It is nothing but SG's male chauvinism and stereotyping, despite his very distinguished record of service", Jaising noted. The SG was seen denying the allegation.

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Jaising also drew attention to SG's hypocrisy in raising an alarm about the signals her reinstatement would send as the committee had found her allegation of sexual harassment not proved and the transfer order only irregular. If so, how did the Supreme court reinstate the employee who alleged sexual harassment against the former Chief Justice of India [CJI], she asked.

In the case of sexual harassment allegations levelled by a former employee against the former CJI, and now Member of Parliament, Ranjan Gogoi, the Supreme Court's in-house committee gave him a clean chit. Subsequently, Gogoi's successor, CJI S.A. Bobde, reinstated her.

Jaising asked the bench to adopt the test of how a reasonable woman would react to the unjust transfer order imposed on the petitioner.