Monday, April 27, 2020

SC Upholds The Constitutional Validity Of Rule Empowering RAW To Compulsorily Retire Officers

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Taking a strong exception to "improper handling" of the complaint of sexual harassment made by a former employee of the RAW, the Supreme Court on Friday directed the Union of India to pay "constitutional compensation" to the tune of Rs. 1,00,000/- for "impinging upon the Fundamental Rights of the Petitioner".

A bench of Justice AM Khanwilkar and Justice Dinesh Maheshwari noted that the Petitioner was subjected to "insensitive and undignified circumstances" by the organization which constituted an Internal Complaints Committee in accordance with the guidelines laid down in Vishaka and Others v. State of Rajasthan and Others, after a delay of three months.

While the Committee concluded that the allegations of sexual harassment could not be proved, the court observed,

"In the present case, the petitioner had faced exceedingly insensitive and undignified circumstances due to improper handling of her complaint of sexual harassment. Regardless of the outcome of the inquiry into the stated complaint, the fundamental rights of the petitioner had clearly impinged. Taking an overall view of the circumstances, we consider this to be a fit case to award compensation to the petitioner for the stated violation of her right to life and dignity, quantified at Rs.1,00,000/-."

The Petitioner had made complaints of sexual harassment against her seniors, Ashok Chaturvedi, the then Secretary in charge of the organisation and Sunil Uke, the then joint secretary.

She had alleged that the charged officers subjected her to harassment by asking her to join the sex racket running inside the Organisation for securing quicker promotions and upon refusal to oblige, she was subjected to persecution.

The court noted that the Organisation responded to the allegations of sexual harassment after a gap of almost three months by constituting a Complaints Committee which did not consist of a "third party as a representative of an NGO or other body who is familiar with the issue of sexual harassment", as predicted by the guidelines given in Vishaka (supra).

Subsequently, the Committee was re­constituted with the addition of Dr. Tara Kartha, Director, National Security Council Secretariat (NSCS), which ultimately submitted that the allegations of sexual harassment were not proven against Sunil Uke.

During this period, however, the court noted, there were glaring incidents of violation of the fundamental rights of the Petitioner, whose complaints of sexual harassment were met with "procedural ignorance" and "casual attitude" of her seniors in the department.

The bench observed that there were "unwarranted attacks" on the Petitioner's psychological status, clearly in violation of her right to life with dignity.

In these circumstances, the Court recalled,

"The approach of law as regards the cases of sexual harassment at workplace is not confined to cases of the actual commission of acts of harassment, but also covers situations wherein the woman employee is subjected to prejudice, hostility, discriminatory attitude and humiliation in day to day functioning at the workplace."

The bench observed that the scheme of the 2013 Act, Vishaka Guidelines, and Convention on Elimination of All Forms of Discrimination Against Women (CEDAW) predicates that a "non-hostile" working environment is the basic limb of dignified employment.

The present case, the bench averred, is replete with a lack of sensitivity on the part of Secretary (R) qua the complaint of sexual harassment. "To wit, time is taken to process the stated complaint and improper constitution of the first Complaints Committee (intended or unintended) in violation of the Vishaka Guidelines, constitute an appalling conglomeration of undignified treatment and violation of the fundamental rights of the petitioner, more particularly Articles 14 and 21 of the Constitution," it held.

The bench thus ordered the Union of India to compensate the Petitioner, for subjecting her to a hostile work environment, denying timely representation before a Complaints Committee, and violating her right to life with dignity.

"A priori, when inaction or procrastination (intentionally or otherwise) is meted out in response to the attempt of setting the legal machinery in motion, what is put to peril is not just the individual cries for the assistance of law but also the foundational tenets of a society governed by the rule of law, thereby threatening the larger public interests. The denial of timely inquiry and by a competent forum inevitably results in denial of justice and violation of fundamental right," the court held.

However, the Bench has upheld the RAW's order of compulsory retirement passed against the appellant/petitioner.

In this case, the bench was also confronted to decide the Constitutional validity of Rule 135 of the RAW (Recruitment, Cadre and Services) Rules, 1975, which gives power to the Central government to voluntary retire RAW Officers whose identity is exposed or compromised.

While upholding the same, the bench remarked, "Exposure of an intelligence officer could be hazardous not only for the Organisation but also for the officer concerned."

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