Case Title: XYZ v. UNION OF INDIA & ORS
According to the Delhi High Court, allowing someone who is the subject of a sexual harassment inquiry by the Internal Complaints Committee (ICC) to be represented by a person with legal experience will be unfair to the complainant, whose case is also being considered by the committee without the assistance of a lawyer or next friend.
As per Rule 7(6) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, parties involved are not permitted to retain a lawyer to represent them at any point during proceedings before the ICC. A person should be allowed to be represented by someone qualified to conduct a cross-examination of the complainant, according to the argument made before the court, which asserted that the ICC is thought to be endowed with an authority comparable to a civil court.
Justice Sanjeev Narula denied the request to allow the petitioner, who is the subject of an ICC investigation, to be represented by someone other than the lawyer who is currently representing him or her saying that "If the Court would allow such an interpretation, then this provision would become redundant, and a floodgate of law graduates, who may not be enrolled with the bar councils to become an 'advocate' but are still practising law, would pour in. The purpose of keeping the proceedings fact-based and free expert legal advisory would be lost".
The petitioner limited his prayer in his subsequent petition to allow him to be represented by a person of his choosing after withdrawing an earlier plea that challenged the rule. The petitioner essentially contested an ICC email communication from September 22 in which the ICC declined his request to engage an advocate due to Rule 7's express prohibition on legal representation (6). It is not for this court to interpret or weaken the mandate of the statute when no challenge has been brought before it, the court stated. "Petitioner's insistence to be represented through a friend amounts to a reading down the expression of Rule 7(6), which could only have been done in the earlier proceeding at the stage of examining the vires of Rule 7(6)."
The court stated that to allow such a request by ignoring the bar under Rule 7(6) would mean that the term "legal practitioner" under the provision would have to be read in a manner that it only includes an advocate registered under the Advocates Act, 1961 and not a law graduate. The court noted that the prayer is being insisted upon as a matter of right in the sheer absence of any enabling provision.
Justice Narula ruled that the argument was unpersuasive, and that the petitioner would have had the right to legal representation had the vires of Rule 7(6) before the Division Bench been successfully contested. The sole judge did however add that it must respect the law as it is right now.
It is not for this court to interpret or weaken the mandate of the statute when no challenge has been brought before it, the court stated. "Petitioner's insistence to be represented through a friend amount to a reading down the expression of Rule 7(6), which could only have been done in the earlier proceeding at the stage of examining the vires of Rule 7(6)."
The court stated that to allow such a request by ignoring the bar under Rule 7(6) would mean that the term "legal practitioner" under the provision would have to be read in a manner that it only includes an advocate registered under the Advocates Act, 1961 and not a law graduate. The court noted that the prayer is being insisted upon as a matter of right in the sheer absence of any enabling provision.
The court further stated that while the investigation may have significant repercussions for the person who is the target of allegations, it is important to remember that it is a domestic investigation and not legal proceedings.