A recent court judgment related to the role and powers of the National Commission for Women (NCW), a statutory body set up by the government in 1992, has stirred up considerable dust and set in motion a debate that could impact delivery of justice for women.
Judges VM Kanade and AK Menon of a division bench in the Bombay High Court have ruled that the NCW “is not entitled to arrive at final conclusions or grant reliefs that a civil or criminal court can.”
The NCW has been advised to not only look into individual complaints on violation of women's rights, non-implementation of the laws providing protection for women, non-compliance of policy decisions but also investigate them to verify genuineness and take them up with the appropriate authorities.
"However, it does not have unbridled power or authority. The commission functions in a recommendatory capacity and not as an adjudicatory body," the Bombay High Court has stated.
The ruling came about in a case involving the multinational firm, KPMG, which had petitioned to the Court, challenging NCW’s terms of reference framed by its enquiry committee in a case that dates back to 2007.
The committee had held that the multinational should apologise and compensate its erstwhile employee Kavita Mishra (name changed to protect her identity) for the sexual harassment that she faced at the workplace in 2005.
The petitioner had also alleged that the NCW-appointed committee has violated the principles of natural justice, as KPMG was not given the copies of all the documents.
The court’s ruling in response to the petition has now triggered indignant responses. Some think that it seems to be derailing the case, rather than rapping the employer for seriously violating an employee’s right to work and live with dignity. Others point out that it almost looks like a suo moto order, as the NCW has not claimed to pass any judicial order in this case, but has only been exercising its recommendatory powers.
Kavita herself feels that the court has not really addressed the heart of the case in question – one seeking justice for a victim of sexual harassment, who has been fighting a long and bitter seven-year-old battle against a global Goliath.
The KPMG case
In 2005, Kavita, a chartered accountant in her late 30s, joined KPMG as a Director, but was subjected to indecent and embarrassing acts by KPMG’s senior employees. At the time, the firm did not even have an internal committee as per the Vishaka guidelines of 1997 to probe her grievances.
Their disregard provoked Kavita to offer her resignation. But instead of accepting her resignation, the company made her go through an appraisal by the same employees she had complained against! She escalated her complaint to the Board and sought an enquiry. But instead of addressing her grievances, the company sent her notice of termination of services on 30 November, 2006, by which time she had already completed 14 months in the company.
In December 2006, Kavita sent legal notices to the company, but they denied her contentions, labelling them “totally irrelevant”. In 2007, she approached the Maharashtra State Commission for Women, and subsequently lodged a criminal case with the police. In 2010, she was directed by the High Court to approach the NCW, as the Maharashtra commission’s term came to an end and the initial inquiry was still pending.
Meanwhile, KPMG set up a Vishaka Committee after Kavita had been dismissed, though she refused to appear before it.
The perpetrators were arrested in 2007, but were released on bail. Ironically, they rejoined KPMG, even got promoted and left only in February 2013, after which they were employed elsewhere.
Kavita is amazed at the irony of every incident in this situation. "After the court order and direction of two earlier division benches of the same High Court have been followed, is this the essence of speedy justice?” she asks.
The Bombay High Court has now dismissed the NCW’s right to “arrive at final conclusions or grant reliefs”, though in July 2008, it was the same court that had directed the state commission to complete the probe in six months, and most importantly, had asked her to pursue the matter with the NCW in 2010.
In 2013, the NCW constituted a Committee headed by Mrs. Nirmala Samant-Prabhavalkar, who drew up the terms of reference for KPMG, saying that the company could issue an apology to Kavita and compensate her, which was challenged by the company.
In the recent hearing, the judges agreed with KPMG that the terms of reference were beyond NCW's purview. "In the present case, the panel has no jurisdiction to determine whether there was an unfair dismissal or such dismissal caused loss of future career opportunity. The NCW can also not demand a letter of apology, direct payment of compensation, or grant relief..."
Hence, the same Bombay High Court that had directed Kavita to pursue the matter with NCW in November 2010 has now quashed the inquiry in 2014.
HC ruling: At odds with the government
The court hearing is also interesting in terms of how it clashes with the recent stance of Maneka Gandhi, the Union Minister for Women and Child Development, on upgrading the NCW Act of 1990 so as to put it on par with the National Human Rights Commission (NHRC).
Last month, the Ministry of Women and Child Development prepared a Cabinet note proposing to give NCW the power to investigate, search, seize, issue warrants and arrest, in matters of domestic violence, police apathy and sexual harassment at the work place.
The minister said “I want NCW to be a place of last resort where women can go when their relatives or the police don’t listen to them. We have two lakh women who lodge complaints with the NCW but there must be at least two crore who are sitting because they don’t know what to do.” She thus appears to suggest that every proceeding before the commission should be judicial.
The Ministry’s proposals, however, predictably roused immediate opposition, with some declaring that the NCW could not be on par with NHRC, as it would not be a “gender-sensitive” body, and in fact, biased towards women.
In the KPMG case, supporters of Kavita slam the Court’s ruling as a “very good illustration of what is wrong with judicial processes”. Many allege that the attempt to stymie the law has been evident on several occasions in the course of her long fight. To most, it is clear that neither the courts, nor NCW or even any other women’s organization was able to help her much, mainly because of the structure and the set-up of the judicial process.
However, a male lawyer practising in the Bombay High Court, who does not want to be named, says that though the judgment doesn’t flow well, and has been handled badly, it is indisputable that the NCW has the power for only a generic case, not an individual or private one.
The complainant would have had a better case had she handled it on her own, rather than go through the NCW, he says. “There should only be specialists (in the NCW); a non-judicial body should not be converted into a judicial one,” he explains. However, he agrees that it is important for its recommendations to be heeded, or at least heard.
Another lawyer, Jane Cox, looks at the entire issue through a different lens. According to her, the most important question in the case – that is whether the Vishaka Committee had been appointed or not immediately after the Act was passed – has not been looked into in detail, or even mentioned during this hearing. How is this a relevant judgment? Bringing the NCW’s powers into the legal discussion is, therefore, merely a point of derailment.
Where does the NCW stand?
Nirmala Samant-Prabhavalkar, member of NCW, declines to comment on the court hearing, but she too agrees that KPMG has been trying to derail Kavita’s case and the company is just buying time. None of the recommendations sent by the NCW have been implemented, she reiterates.
Nirmala does not feel that the broader question of the role of NCW is entirely extraneous in this case. She denies that NCW had ever asked for adjudicating powers, as it does not want a parallel court, but she is firm on her insistence that the powers of the NCW need to be considered and defined.
“What is needed is good, strong power of investigation, not a parallel court. If necessary, we will study the law,” she says, “Galvanising society is our purview, not legal recourse alone. Through our recommendations, we want to enforce activism in society, not just the law.”
Judges can “interpret” the legal provisions, while the NCW wants to go beyond that. In Nirmala’s opinion, therefore, having a retired judge as head of the Commission is not required at all since many judges are disenchanted and alienated from society.
Can the strength of the NCW be expanded then? The Kerala State Commission, for instance, has stronger powers, and has enforced certain laws strongly---such as enforcement of attendance. “The NCW does not enjoy such strong powers, yet it should have a few,” says Nirmala, such as being able to penalise people who do not appear before them when called, just as the NHRC can do.
In view of all the issues involved, one wonders whether the NCW is, after all, just a toothless body as it stands now. Section 10(1) of the Act of 1990 does offer a 14-point mandate for the commission. These address and highlight their role in safeguarding the rights of women, studying the problems faced by them, recommending eradication, evaluating the status of women periodically, and funding and fighting cases related to the violation of their rights.
Going by the rules and past experience, it is clear that the NCW has played a major role in helping complainants involved in cases of abuse and discrimination. Last year, the chief of the West Bengal Human Rights Commission, Justice AK Ganguly, who had been indicted (though recently given a clean chit due to lack of evidence) for harassing a law intern, had sought four weeks to respond to the NCW, when it asked him to explain his position.
Similarly, in the Tehelka rape case, Shoma Chaudhary, earlier co-founder and Managing Editor of Tehelka admitted and apologised to the NCW for the failure of her company to set up a committee as per the Vishakha guidelines, or to act according to its rules once the complaint against Tarun Tejpal had been received.
NCW also sought an explanation from a BJP member for revealing the identity of the journalist in the Tehelka case.
But in Kavita‘s case, the court has not even allowed the NCW to pursue the enquiry fully. Right from the start, the inquiry into the bigger picture as well as the smaller details of the case seems to have lacked enough scope, time and depth. Kavita herself feels that the judgment seems to miss the issue. She adds that after all, the NCW’s judicial power is not the only point here.
From what emerges out of the dialogues around the case and the recent ruling, the NCW does not have enough appointees, funds or investigation processes to support what it does. What is perhaps needed, therefore, is not a judicial body, but a panel of good lawyers, activists and journalists within the NCW who can play different roles and give suggestions that carry the weight of authority. After all, any judgment could be very damaging, if it does not take into account different perspectives on the case.