In the case of Somaya Gupta (“Petitioner”) vs. Jawaharlal Nehru University and Anr. (“Respondent”) decided by the High Court of New Delhi on 27 August 2018 an important question that arose for consideration by the High Court was whether the constitution of the IC could be faulted on account of bias.

The argument of the Petitioner in this regard was that the IC was biased as it was constituted by the Executive Committee of the Respondent which included the Vice-Chancellor and Rector-I of the University against whom the Petitioner had made a complaint of sexual harassment.

On this argument, the High Court of New Delhi noted that 22 members of the Executive Council were present at the 269th meeting. Thus, apart from the Vice-Chancellor and Rector-I (against whom allegations have been made by the Petitioner), the Executive Council consisted of 19 other persons who had participated in the said meeting. In addition, there were four other special invitees. Hence, the argument that IC would be biased as it is constituted by the Executive Council is wholly unmerited. It held that, “…In order to succeed, the petitioner would require to establish that there is a real likelihood of bias. Mere apprehension in the petitioner’s mind would be insufficient for securing such relief.” In this regard, the case of Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant, (2001) 1 SCC 182 was relied on which states that “…..The question in such cases would not be whether they would be biased. The question would be whether there is reasonable ground for believing that there is likelihood of apparent bias. Actual bias only would lead to automatic disqualification where the decision-maker is shown to have an interest in the outcome of the case. The principle of real likelihood of bias has now taken a tilt to “real danger of bias” and “suspicion of bias……”

Ultimately, holding in the negative, the court stated that “…The mere fact that the ICC was constituted by the Executive council of the University that included two members were accused, is clearly insufficient to doubt the integrity or ability of the ICC to render an unbiased opinion…” It also said that “…It is relevant to state that the ICC as constituted by the Executive Committee is not specific to the petitioner’s case alone, but is constituted under Section 4 of the Act to consider all cases in accordance with the Act…”

The High Court also stated that there was no allegation by the Petitioner that any of the members of the IC had any pecuniary or personal interest in the matter. It noted that since the Presiding Officer of the IC was a witness to the incident, she would be disqualified from acting as a member of the IC in the case of the Petitioner. The Court said that given the fact that the Presiding Officer had already recused herself, there was no material on record which would even remotely lead to any suspicion that the members of IC have any personal interest that would conflict in their obligation to conduct an inquiry fairly and make a fair recommendation. Petitioner had argued that since the Presiding Officer of the IC was disqualified, the entire IC must be reconstituted. The court held that the fact that the Presiding Officer has recused from the proceedings, does not mean that IC is disabled from continuing with the proceedings.

The other argument made by the Petitioner was that the constitution of IC was contrary to the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Institutions) Regulations, 2015 (“UGC Regulations”) as the IC included Chief Proctor, which is a senior administrative position in the University.

On this argument, the Court referred to Regulation 4 (3) of UGC Regulations which states that persons in senior administrative positions such as a Vice-Chancellor, Pro Vice-Chancellors, Rectors, Registrar, Deans, Heads of Departments etc. cannot be appointed as members of the IC in order to ensure its autonomy.

The Court held that Petitioner’s argument had merit as “…there is no dispute that the office of the Chief Proctor is at senior administrative position in the University…” (Please note: Court did not issue any directions as the Chief Proctor had recused from the proceedings and challenge to the vires of UGC Regulations and constitution of IC was pending before the Division Bench of the Court and Supreme Court had directed IC to carry on its functions).

– Adv. Shivangi Prasad – Corporate Lawyer, External Member & Trainer, Head – Legal & Compliance, Partner Child Safety at Work