If the executive and the legislature violate the rights, the victims look to the Supreme Court for protection. What happens if the apex court itself sets such an example of inquiry and protection to the complainant of sexual harassment? How can a panel of inquiry proceed in the absence of the complainant in the allegations of sexual harassment raised against the CJI? Inquiry without Audi Alterum Partem [hearing the other side] is unnatural and illegal. It is reported that two SC judges requested the panel not to proceed without the complainant and allow her the support of a lawyer to secure the credibility of the apex court.
There are a few options, though not provided by the Constitution or the Prevention of Sexual Harassment Act (PoSH Act) or SC regulations, to stop this injustice to the system: one – this inquiry should be immediately stopped, until the new Lok Sabha is constituted, or an independent body, i.e., other than judges, including an eminent woman leader of an NGO working for human rights, to probe all the allegations and counter allegations together; two – the National Human Rights Commission can intervene on behalf of the complainant and secure due process in inquiry; or three – the President should intervene to do justice in the context of complexities.
Section 2 of the Protection of Human Rights Act mandates the NHRC proactively or reactively inquire into violations of the Government of India or negligence in the prevention of such violation by a public servant and to intervene in court proceeding relating to human rights.
The following table explains the international law, constitutionally guaranteed equality, the legal mechanism, regulation and the case law to ensure principles of natural justice and due procedure in hearing such complaints against top constitutional authorities vis-à-vis the concerns generated out of breaches and violations.
(The author was Central Information Commissioner and is a Professor at Bennett University. Views expressed are personal).