Thread by @lawbarandbench

#SupremeCourt will shortly continue the final hearing in a plea by a woman district judge who resigned from service after alleging sexual harassment by a High Court judge.

#SexualHarassment

A Bench of Justices Nageswara Rao and BR Gavai had heard arguments on the reinstatement of the woman Additional District Judge (ADJ) last Thursday. To continue today 👇🏼

https://twitter.com/barandbench/status/1486568917451505665

Solicitor General Tushar Mehta: at the outset, I must point out- I have not recieved any instructions from the High Court. The submissions which I make are my submissions which I feel to be duty bound.

#SupremeCourt #SexualHarassment

SG Mehta: Kindly don't think that the High Court is taken an adversarial stand.

#SupremeCourt #SexualHasrassment

SG Mehta speaks to the allegations of surveillance, reads, "Surprise inspections is a normal, routine practice intended to enhance quality of work"

#SupremeCourt #SexualHasrassment

SG Mehta: Sometimes we have certain impressions about facts. Holding what the petitioner wants you to hold would be catastrophic.

Justice Gavai: on account of rejection of two representations, she resigned. That's her submission.

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SG Mehta: Your Lordship are not delaying with an order of transfer and it's validity. This is seeking that the High Court as an institution connived together..

#SupremeCourt #SexualHarassment

SG Mehta: The committee was unequivocal that sexual harassment was not established.. So far as transfers they said it was irregular.

A mere irregular transfer can be no justification to seek a declaration that because of this I was tormented that I had to resign.

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SG Mehta: We are not concerned with one individual, but the institution. One individual faces an irregular or a mala fide transfer. Would we be justified in blaming or stigmatising ang entire institution?

The person can challenge it. we are not dealing with layman..

SG Mehta: My respectful submission is, this doctrine please do not accept in context of judicial officer. They cannot be equated with workmen or judgments under labour law.

It may not be a correct proposition that what is true in the West of workmen is true here

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SG Mehta: I inform you, it was not a solitary transfer. It was a transfer of 25 judicial officers.

In case of any transferrable post, such situations do arise.

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SG Mehta: This decision will hold the field for future.

Suppose an SP is discharging his duty, and some minister finds his discharge of duty to be troublesome- his transfer would be mala fide. But to record a finding that the transfer was made to ensure he resigned..

SG Mehta: ..Would need a higher threshold.

The decision is taken by a committee of judges then by the full court. The acceptance of the argument, which will only be possible that there was coercion, will stigmatise the entire institution.

#SupremeCourt #SexualHarassment

SG Mehta: Your Lordships are dealing with a person that has made an allegation that I was coerced to resign after resigning.

The petitioner is strong enough to reach senior judges of the High Court for not getting peons.

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SG Mehta: Your Lordships law will have implications, not only on judicial officers, but regarding all officers in administrative hierarchy.

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SG Mehta, speaking to delays: I am saying this conduct may not inspire confidence to justify the finding that there was coercion.

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SG Mehta says threshold of judicial review of decisions of the Full Court is very, very high.

Takes Court through judgments backing this: We have our own system, problem ethos and we may not rely on judgments of other jurisdictions.

#SupremeCourt #SexualHarassment

SG Mehta takes #SupremeCourt through judgments on Constructive Discharge.

#SexualHarassment

SG Mehta takes Court through judgements dealing with judicial review of Full Court decisions.

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SG Mehta: It is that collective decision which can be a matter of judicial review. But, what will be the contours of that judicial review?

#SupremeCourt #SexualHarassment

SG Mehta refers to Registrar General,Patna High Court v Pandey Gajendra Prasad.

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SG Mehta now refers to Rajendra Singh Verma v. Lt. Governor Of Nct Of Delhi.

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SG Mehta: To sum up, even if there is some element of doubt.. it may be very harsh to stigmatise and all the persons manning it.

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Senior Advocate @IJaising responds to SG Mehta's submissions: He seems to be implying that there is a delay on my part in approaching the Courts- There is no delay.

She participated fully, she had to submit herself to cross examination.

#SupremeCourt

Sr Adv @IJaising: That is part of her pursuing her bona fide remedies under law. Concluded on 15 12 2017, when the report was submitted to the Rajya Sabha.

She makes an application to the full court on 21 12 2017. She was informed that her representation is rejected on 25 1 2018

She filed the present Writ Petition in July 2018. Therefore, there is no delay: Sr Adv @IJaising

#SupremeCourt #SexualHarassment

@IJaising: Every case turns on its own facts. Your Lordship will take a decision based on the facts of the case. This is an argument of alarm.

Even before the Vishakha judgment, counsel would argue that if you allow this- tomorrow your secretary will make a case against you.

Sr Adv @IJaising says she is entitled to cite common law judgments. Takes Court through precedent on this point.

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Sr Adv @IJaising: At this point I want to clear one misconception. He says you must show intention- it's not true.

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Sr Adv @IJaising: The law is that this argument that he must intend is not available, it is available only to an employer against whom I'm claiming vicarious liability.

#SupremeCourt #SexualHarassment

Sr Adv @IJaising: I am not claiming any damages at all. I'm, in fact, giving up financial claims.

On the point of credibility, please remember she has made no financial claims, her only desire is to work within the judiciary.

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Sr Adv @IJaising on the point of other similarly situated transfers: She is not a district judge.

These people were in the super time scale, they had completed deputation, their names were in the agenda before the transfer committee & they were all transferred to vacant courts

Sr Adv @IJaising: You will not find any vacant court mentioned against her transfer. I've already shown you that there is no vacancy, that has been admitted.

These were not mid-term transfer. These were people coming after completing their deputation.

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Sr Adv @IJaising takes Court through the Preamble of the Judges Inquiry Act: This is an act who's job it is to do fact-finding.

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Sr Adv @IJaising takes Court through Sections 3(3) and 4.

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Sr Adv @IJaising: They are within their rights to making a recommendation. They also make such observations as they deem fit.

The observation that she requires to be reinstated is within the framework of the law.

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Sr Adv @IJaising takes Court through charges that were framed: the committee has found that he did interfere with her transfer.

They could not show the nexus between the interference and the sexual harrasment.

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Sr Adv @IJaising: There is no word for word translation in Hindi for sexual harassment. At least, not to my knowledge.

I am responding to the submission that the scrutiny of the order of transfer was beyond the committee's scope and the credibility of the complainant.

Sr Adv @IJaising: To say that a woman is "emotional" is a stereotypical argument.

The Senior Counsel takes Court through this judgment: barandbench.com/news/litigatio…

Sr Adv @IJaising: I am internationalist and I will look for light everywhere! And I will place judgments from various jurisdictions. It is upto you whether to accept it.

#SupremeCourt

Sr Adv @IJaising takes the Court through the judgment in Vishaka v State of Rajasthan to place reliance on international law.

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If she had chosen to challenge this order, the complaint could not be redressed within 8 months. I a time sensitive matter, it has to be examined whether her response was fitting: Sr Adv @IJaising

Sr Adv Jaising: Mr. Mehta made an argument, what is the message sent to the whole country? I'm sorry to point to the hypocrisy..

SG: I never argued this.

Jaising: This is an argument of alarm.

#SupremeCourt

Sr Adv Jaising: My submission is, any working mother should not be forced.. this does amount to coercion.. to ask a mother to choose between a duty to her daughter.

#SupremeCourt

SG Mehta: Only to clarify.. Two statements..

Sr Adv @IJaising: It is not fair for him to be allowed to make submissions.

#SupremeCourt: Thank you, judgment reserved.

SG Mehta: Nuisance value is a value. No, I never used the word emotional. I said impulsive decision.

Sr Adv @IJaising: This is why Court proceedings should be recorded!

#SupremeCourt

Sr Adv @IJaising: On the previous occassion, he repeated it ten times! And it was on the tip of his tongue.. we must have transcripts of counsel say in court.

SG Mehta: My submissions are gender neutral.

#SupremeCourt

- Proceedings conclude -