Mind the legal gap
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The Justice Ganguly case shows up some lacunae. For one, the sexual harassment act will have to be changed to extend to unpaid interns.
There is immense pressure from women activists, the media and some political parties for retired Supreme Court justice, A.K. Ganguly, to resign as the chairperson of the West Bengal Human Rights Commission for allegedly harassing a young intern. The courage of the young intern in making her alleged violation public has been justly admired; whether she will want to follow up by filing a specific police complaint remains to be seen. And whether Justice Ganguly will decide to quit his new job remains almost entirely a matter for him to decide. Section 23 of the Protection of Human Rights Act, 1983, provides that she or he may be removed from the position by the president if "convicted and sentenced to imprisonment for an offence which in the opinion of the President involves moral turpitude", or if so advised by the SC to be unworthy of the office
for the reason of "proven misbehaviour or incapacity".
The SC has, in a non-judicial proceeding, held that prima facie, Justice Ganguly is guilty of sexual harassment, but found that it has no jurisdiction over him or the intern because Justice Ganguly has retired and the intern does not practice before the court. The court also says that, in future, it will not deal with such matters. This has drawn the ire of the Union law minister as well as the leader of opposition in the Rajya Sabha, primarily on the ground that the court as an institution may not withdraw from jurisdiction over such sensitive matters.
What does the law say in this case? Going by the Vishaka judgment or the sexual harassment law of 2013 or the recently appointed SC gender sensitisation and internal complaints committee (GSICC), there was no act of sexual harassment in this instance. This is because the law on sexual harassment defines it as occurring in a workplace environment, and a workplace is one where the employer-employee relationships subsist. The regulation extending only to the precincts of the SC also does not apply in the present situation.
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