A Multi-Layered Indian Judicial Crisis

The question remains if the Justice S.A. Bobde inquiry has assured the people that the SC has acted in a manner to firmly demonstrate that no one in the republic can act with impunity.

The Supreme Court inquiry into allegations of sexual harassment against Chief Justice Ranjan Gogoi has found “no substance” in them. The report has been sent, according to the Supreme Court Secretary-General’s statement, to the “next senior judge competent to receive the report and the judge concerned viz. the Chief Justice of India”.

The Secretary-General has also drawn attention to a 2003 Supreme Court decision that such a report is “not liable to be made public”. Clearly, this is not the end of this obviously sad and troubling episode. For now, the Justice A.K. Patnaik inquiry into the issue of conspiracy against the judges will be set into motion.

There is no doubt that the Patnaik inquiry must be thorough so that it unearths all the facts relating to this issue. No one can be allowed to attempt to sully the reputation of the Supreme Court and the severest of actions must be taken against anyone who act maliciously against judges.

However, the question remains if the Justice S.A. Bobde inquiry has assured the people that the Supreme Court has acted in a manner to firmly demonstrate that no one in the republic, howsoever mighty, can act with impunity. This can only be so if the people find the process to be credible. It is too early to reach any conclusion if the people will do so. Though it was good that the Chief Justice submitted himself before the inquiry, it is noteworthy that the accuser withdrew herself from the inquiry over the manner in which it was being conducted.

Also read: ‘Scared, Dejected’, Says Ex-Staffer after Panel Finds ‘No Substance’ in Complaint Against CJI

Certainly, the absence of any information of the basis on which the inquiry reached its conclusions and its findings on the material contained in the ex-employee’s complaint does not make for any informed popular opinion to be generated in the matter. Respect for institutions and for high office holders cannot be protected in darkness. If sunlight is a good disinfectant in the physical world, it is also the best medicine to maintain the reputation of institutions.

The court continues to enjoy vast and well merited popular esteem. It has, over the past few years, given some outstanding judgments which have expanded the scope of rights. These have earned it national and global respect. But this matter represented the court’s greatest test, for it had to emphatically show to the people that it has the capacity to judge not only one of its own but even the person who leads it. Has the court achieved this objective? That is the question the honourable judges, individually and collectively, have to ask themselves.

This writer never thought that a day would come when allegations of sexual harassment would be made against a Chief Justice of India. Perhaps that was also the prevailing general thought. That is perhaps also why there seems to be nothing conclusively in the law to show how this matter should have been handled. So it fell to the present group of judges to navigate unchartered waters.

Have they done so well?

In charting their course, they had to be mindful that the court’s initial handling of this matter would have left many people, as it did this writer, completely confused. A word on why it was so.

Also read: Justice Is Dead, Long Live the Justices

That no one can be a judge of his own cause is an elementary and basic principle of natural justice. It is known to even those who have nothing to do with the legal profession or with the courts in their day to day lives. Hence, it was bewildering to see the Chief Justice of India and two other judges conduct a hearing in which the two principal law officers of the country participated on matters based or arising from allegations against the Chief Justice himself.

None of the five who took part in it has clarified, as yet, why a cardinal principle of natural justice was overlooked. Certainly, a clarification is required. It would not be sufficient for them to feel the people will accept that the allegations constituted an assault on the judiciary and had created an extraordinary situation that required an extraordinary process. There may also be many who have been left confused as to why the resulting order was signed by only two judges, with the Chief Justice excluding himself.

Is there a precedent when a judge sitting on a bench has recused himself from signing an order, and his companion judges have proceeded to do so? This too needs to be clarified.

In this context, an interesting sidelight may be mentioned. In the Panama Papers case against former Pakistan Prime Minister Nawaz Sharif in the Pakistan Supreme Court, the final judgment in July 2017 was signed by all five judges on the bench but two had not been present during a part of the hearings. Last year, this writer had asked a senior member of the Pakistan bar about this strange procedure. He was told that what was done by that court was wrong.

It would be incorrect for the court to assume that the people would have automatic confidence in any step it takes. There may have been a time when the people had such confidence in India’s superior judiciary that they would have almost instinctively felt so. The very fact that questions have been raised on the mode and composition of the inquiry shows that times have changed and the court must take note of changing times.

Also read: On Allegations Against CJI Gogoi, There Are Many Questions the SC Needs to Answer

The Supreme Court has interpreted the constitution in such a manner that it has asserted its primacy in appointments to the superior judiciary. It has held that it has done so to safeguard its independence. It is true that only an independent judiciary can perform its constitutional role. However, along with the privilege it has acquired goes the responsibility of manifestly judging the conduct of its own members when called upon to do so. This would not be in conflict with the procedure of removing judges of the superior courts which is laid down in the constitution.

Some questions remain. Will the Bobde inquiry report be allowed to be subjected to judicial scrutiny? That will run counter to the court’s apparent desire to bring this matter to closure soon. However, the question is if the matter will be closed as long as the Patnaik inquiry is on. There is a linkage, for that inquiry has arisen from this complaint.

At this stage, the court as an institution — the bench and bar together — simply cannot go into a stage of civil conflict for that will gravely damage the judiciary. Thus, the senior members of the bar, especially those who are widely respected not only by lawyers but by civil society and the public at large, must step forward to build a consensus so that a way is found through this crisis. They would know that the health of the judiciary is vital for the nation.

It would not be inappropriate for me to mention that a friend from a neighbouring country told me recently how the strength of India’s institutions are important for they inspire other, less fortunate, nations. India’s reputation in the eyes of the world will hinge on how the court continues to handle this entire matter.

Vivek Katju is a former Indian diplomat who served as India’s ambassador to Afghanistan and Myanmar, and as secretary, Ministry of External Affairs