Court Martial of Capt Poonam Kaur

As we are aware, in July 2008, Captain Poonam Kaur alleged that three officers of her unit, 5682
Battalion of the Army Supply Corps based in Kalka, Haryana, had mentally and sexually harassed her
and confined her illegally when she resisted to their advances. Wherein, Captain Poonam had accused
three of her senior officers, (including her commanding officer) ie. Col RK Sharma, Lt Col Chawla and
Major Suraj Bhan. Subsequently a Court of Inquiry (COI) was ordered to investigate the allegations
leveled by Capt Poonam Kaur against her superior officers.

During the course of Court of Inquiry, all three officers have denied the allegations and in contrary,
found Capt Poonam Kaur guilty on at least 20 counts. She was also counter charged for making false
allegations against superior officers. Eventually, based on the findings of Court of Inquiry, a General
Court Martial (GCM) of the Army has sacked Captain Poonam Kaur for leveling false allegations of
sexual harassment against her seniors. The Army Court’s decision, which came after about five
months of hearing, would now be confirmed by the Western Army Commander Lt Gen TK Sapru.

Capt Poonam Kaur hails from Jalandhar, Punjab. Her father is a retired Army Havildar. Presently, he is
working with MES as a peon. It may be seen that, from a modest background, Capt Poonam Kaur
could reach to the status of a Commissioned Officer with nothing but her hard work and concerted
efforts. She is the backbone of her family and therefore, before any severe penalty is imposed on her,
matter needs to be investigated thoroughly and meticulously. That would not only protect the modesty
of an aggrieved woman but also help the family to survive with dignity and respect in the public.

Prima facie, it appears that the complaint of Capt Poonam Kaur regarding sexual harassment by her
seniors at work place has not been given due consideration whilst she has been framed with various
counter charges in the same Court of Inquiry. This deliberate contradictory action could be, in my
observation, an in-house attempt of Army to conceal the facts through bullying and pressure tactics.

Whereas, the Supreme Court of India in their judgment in August, 1997, in the case of Vishaka and
Others Vs State of Rajasthan and others, recognizing the International Conventions and Norms,
interpreted gender equality of women, in relation to work and held that sexual harassment of women at
the workplace, which is against their dignity, is violation of Article 14, 15 (I) and 21 of the Constitution
of India. The said Supreme Court verdict was brought out with the aim of focusing attention towards
social aberration and assisting in finding suitable methods of realization of the true concept of ‘Gender
Equality’ and to prevent sexual harassment of working women in all work places through judicial
process, to fill the vacuum in the existing legislation.

In the said verdict, the Supreme Court also affirmed about the hazards to which a working woman may
be exposed and the depravity to which sexual harassment can degenerate; and the urgency for
safeguards by an alternative mechanism in the absence of legislative measures. The Supreme Court
also referred and highlighted the significance of the Article 11 i.e. ‘Violence and equality in
employment’. Equality in employment can be seriously impaired when women are subjected to gender
specific violence, such as sexual harassment in the work place.

The Supreme Court also declared that the sexual harassment includes such unwelcome sexually
determined behavior as physical contacts and advances, sexually colored remarks, showing
pornography and sexual demands, whether by words or actions. Such conduct can be humiliating and
may constitute a health and safety problem; it is discriminatory when the woman has reasonable
grounds to believe that her objection would disadvantage her in connection with her employment,
including recruiting or promotion, or when it creates a hostile working environment.

In the case of Capt Poonam Kaur as well, since she had truly and valiantly leveled sexual harassment
charges against her Commanding Officer and other two superior officers, conceivably it had created a
hostile working environment. Therefore, the genuine plight of Capt Poonam Kaur to the Army
Authorities was to no avail but in contrary loaded her with counter charges. It is also not out of place to
mention here that, the Court of Inquiry was ordered to investigate the sexual harassment charges at
the work place leveled by Capt Poonam Kaur against three senior officers. However, in the same Court
of Inquiry, counter charges have been framed against Capt Poonam Kaur for leveling false allegations
of sexual harassment against her superiors. As per my available information, the Inquiry against the
sexual harassment complaint was not conducted in line with the guidelines and norms of Supreme
Court. Therefore, in order to render justice to the victim, there is a need to re-investigate the case as
per the prescribed norms and standards of Supreme Court.

As i mentioned earlier, in the absence of enacted law to provide for effective enforcement of the basic
human right of gender equality and guarantee against sexual harassment and abuse, more particularly
against sexual harassment at work places, the Supreme Court have laid down the guidelines and
norms specified in the August 1997 judgment for due observance at all work places or other
institutions in the Indian Territory, until a legislation is enacted for the purpose. This was done in
exercise of the power available under Article 32 of the Constitution of enforcement of the fundamental
rights. The Supreme Court also further emphasized that the guidelines and norms would be treated as
the law declared by the Supreme Court under Article 141 of the constitution.

In the above scenario, it is not so comprehensible whether the guidelines and norms framed by the
Supreme Court were followed meticulously or not when the Inquiry was carried out to investigate the
charges of sexual harassment at work place alleged against the superior officers of Capt Poonam
Kaur. As per the guidelines and norms prescribed, on receipt of a complaint regarding Sexual
harassment includes unwelcome sexually determined behavior (whether directly or by implication)
such as : (a) Physical contact and advances; (b) a demand or request for sexual favors; (c) sexually
colored remarks; (d) showing pornography; (e) any other unwelcome physical, verbal or non – verbal
conduct of sexual nature, an appropriate complaint mechanism should be created in the employer’s
organization for redress of the complaint made by the victim. Such complaint mechanism should
ensure time bound treatment of complaints. The complaint mechanism should be adequate to provide,
where necessary, Complaints Committee, a special counselor or other support services, including the
maintenance of confidentiality. The Court also emphasized that the employer should ensure that the
victim or witnesses are not victimized or discriminated against while dealing with complaints of sexual
harassment. The victims of sexual harassment should have the option to seek transfer of the
perpetrator or their own transfer.

In the norms issued by the Supreme Court, it is clearly spelt that the Complaints Committee/Inquiry
Team should be headed by a woman and not less than half of its member should be women. Further
to prevent the possibility of any undue pressure or influence from senior levels, such Complaints
Committee/Inquiry Team should involve a third party, either NGO or other body who is familiar with the
issue of sexual harassment. The Supreme Court also asserted that this guidelines and norms would
be treated as the law declared by the Supreme Court under Article 141 of the Constitution of India
strictly in all work places in India for the preservation and enforcement of the right to gender equality of
the working women. The above directions of the Supreme Court are binding and enforceable in law
until suitable legislation is enacted to occupy the field.

As we are aware, other than the aforesaid norms and guidelines set by the Supreme Court, no
legislation is available as on date for dealing with the cases of sexual harassment at work place and
therefore, this law enforced by the Supreme Court is binding under Article 141.

Instead of investigating the sexual harassment complaints of Capt Poonam Kaur as per the guidelines
and norms issued by the Supreme Court, leveling counter charges in the same Inquiry and removing
her from the Service through a General Court Martial might not be justifiable and therefore needs to
be stayed immediately. The victim is in trauma and high depression. As a Chairman of a NGO, i had
asked for a confirmation from the Army whether the norms and guidelines issued by the Supreme
Court are adhered to while concluding the Inquiry of sexual harassment case of Capt Poonam Kaur or
not. As my NGO is familiar with the issues related to sexual harassment, my NGO would like to
examine the Inquiry proceedings of Capt Poonam Kaur conducted by the Army in order to ascertain
that natural justice as per the prescribed norms is provided to the victim.
In my observation, the Inquiry conducted by the Army in the sexual harassment case of Capt Poonam
Kaur was not in accordance with the prevailing prescribed norms and guidelines of the Supreme Court
consequent to the following major shortcomings :-

* The Inquiry was presided by Brig RP Attri of HQ Western Command. Whereas, as per the guidelines,
Inquiry team investigating sexual harassment case should be headed by a woman officer. (In the case
of non-availability of a senior woman officer in the unit, a senior woman officer should have been
deputed on attachment - perhaps a medical branch woman officer- to conduct the Inquiry).

* Members of the Inquiry were: Col Ahluwalia from Artillery and Col A Aggarwal from Western
Command Signal Regiment. A woman Officer in attendance was Maj Bobby Sharma from MES. From
this, it is evident that the majority of the Inquiry members were male officers. Whereas, as per the
guidelines of Supreme Court, more than half of the members should have been women members.

* In order to ensure a fair deal, a third party participation in the Inquiry, NGO or other body, who is
familiar with the issue of sexual harassment, should have been ensured as per the guidelines of
Supreme Court. Whereas, this norm has also not been complied.

Therefore, it is felt that till the issue is analyzed and sorted out meticulously, the confirmation of
General Court Martial, finalized and sent for affirmation from Western Army Commander Lt Gen TK
Sapru, is required to be stayed/put on a hold.

Besides, a clarification from the Army regarding strict adherence of Supreme Court guidelines and
norms while investigating the sexual harassment complaint of Capt Poonam Kaur needs to be sought
and verified. Meanwhile, if suppose there is a disparity revealed in following the prescribed
procedures, as an interim corrective measure, the Court Martial Proceedings needs to be
recalled/stayed and a fresh Inquiry against the sexual harassment complaint of Capt Poonam Kaur, as
per the norms and guidelines of Supreme Court ordered so as to avoid victimization.

I write these comments in a larger interest and therefore expect an expeditious response from all our
esteemed citizens of our country. An immediate intervention of Higher Formations in this case would
not only provide justice to the victim who suffered gender specific harassment at work place, but also
help out the system to bring the actual culprits to the books.

An argument might come up regarding enactment of Army Act 1950. Army might say that the Supreme
Court norms and Guidelines on Sexual harassment at work place framed under Article 141 would not
be applicable to the Army. That argument cannot be accepted since the Army Act was framed in 1950
and the same was meant only for men. The induction of female officers started only in 1993. In the
absence of any specific rules/ procedures /norms in the Army Act for solving sexual harassment at
work place, the guidelines and norms of the Supreme Court issued in 1997 are very well applicable to
the Army as well. If a woman wears a Uniform doesn’t merely mean that the law of the land is not
applicable to her.

Therefore, it is strongly felt that there is an urgent need to conduct an Inquiry afresh for investigating
the allegations of sexual harassment at work place brought out by Capt Poonam Kaur, at the earliest.
As the Initial Inquiry itself not convened as per the set norms of Supreme Court, how can the
subsequent General Court Martial conducted based on the findings of this Inquiry be valid? In my
opinion both the proceedings have become null and void per se. Hope; this article would open the
eyes of top brasses of Army.

With best regards,

Yours sincerely,

For The Guardian Foundation (NGO)