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

Where is the law in all of this?

The charges of sexual harassment against Chief Justice of India Ranjan Gogoi shocked all of us in the Supreme Court, but what followed in apex court was even more shocking.

Soon after the woman’s complaint surfaced on April 20, the CJI constituted a three-judge bench, which included himself, to respond to the allegations. Gogoi termed the allegations against him as part of a “bigger” plot to “deactivate” him and laced the proceedings with an emotional appeal based on his austerity and meagre savings.

The bench then passed an unusual order while disposing of the PIL. The order intended to interdict any discussion in the media on the “charges”, along with an appeal that any discussion in relation to the charge may breach independence of judiciary. “Lo and behold”, another bench of three judges was constituted.

What is bewildering is that even the registry stepped in, giving an impression that the entire Supreme Court stands behind its chief. What did the entire event convey to the “people”? Certain deep-rooted questions do arise and need answers.

As the events panned out, it became apparent that the chief – even if charged with a crime – reflects the persona of the Supreme Court and the office of the CJI. That they are one and the same. Therefore, any charge levelled against the CJI personally is an allegation against the Supreme Court and the office of the CJI.

Also read | Handling of Harassment Complaint Against CJI Perpetuates Existing Power Imbalance

The first issue is whether the personality of the accused in office coincides with that of his high office and the institution – that is, the Supreme Court? This is the kind of defence which people in high offices invariably take when faced with such charges. Note the defence of the CJI during the bench hearing – “conspiracy to deactivate the office of the CJI”.

Why were benches after benches repeatedly constituted? What was their objective? Linked to this is another question, why is no investigation being launched on the charges levelled against the CJI? The charges are serious and constitute a cognisable offence, why then has there not been the mandatory registration of an FIR and a follow-up investigation after appropriate permission?

If we carefully analyse the strategy adopted in this matter, it would become apparent that the equating of the personality of the charged office bearer with that of high office, and the institution of the Supreme Court, was with an intent to subsume the issue of charges against CJI Gogoi into the larger issue of the independence of judiciary – “to deactivate the office of the CJI”.

This is the theme followed by the two benches as well as the order of the first bench. The intent appears to be to cushion the impact of the shock arising from the accusation against the CJI. This has never happened, as far as I can recall. Seriousness of the charge of molestation levelled against the holder of a high moral office in an integrity institution is being pushed to the background. It was clearly a diversionary tactics. The equation of post and the institution with the personality of the accused office bearer was wholly unconstitutional. This one act demeans the institution more than any other.

Imagine the damage to the post and the institution its head is a charged office bearer. Does it not affect the integrity, the independence of the office and the institution, is the moot question. Besides, by projecting the question of independence of the Supreme Court, in the face of this charge are we not indirectly saying that the charged judge is above the law and would not be governed by the normal law applicable to the situation? Are we not prejudging the accuser and the charges as false, being part of a bigger conspiracy?

Also read | Days After SC Sought Probe Into ‘Conspiracy’ Against CJI, Advocate’s Story Under Fire

The Supreme Court will be required to answer why there shouldn’t be an investigation under the normal law relating to the crime. This was the normal route that would have been taken in case any other person or the office bearer would have been similarly charged. Why this exception? Is it not arrogance stemming from the office? This is an aspect which has troubled me deeply.

When I assess the whole situation, as it panned out, in the light of the order of the first bench, it appeared that there can be only one answer to the issue of why no FIR was registered and follow-up investigation ordered. The first order not only appears to prohibit any discussion on the charges in the media, but also sub-silentio interdicts investigation under the law.

Supreme Court. Credit: Wikimedia Commons

The repeated constitution of benches to look into the bigger conspiracy angle would send the wrong signal to any police officer to not to investigate the matter, since the Supreme Court itself is investigating. Is it the function of the Supreme Court to investigate? Should it in any way derogate or stall criminal investigation as prescribed by law? This is what has happened. Which police officer will investigate a criminal charge which is being looked into by the court?

In other words, charges against Justice Gogoi are being dealt with by the highest court without investigation, without a chargesheet and without a trial. No prosecutor, no defence. The Indian Penal Code, the Code of Criminal Procedure and the Evidence Act will have no role to play. Is this fair, legal or constitutional procedure? The “procedure established by law” has been completely thrown to the winds.

Also read | Even Judges Are Mortals When it Comes to Sexual Harassment at the Workplace

If this is a mere internal inquiry into the charges, then what is its worth? Can it be a substitute for criminal investigation and trial? These are some of the questions which troubled me and others like me, which the court will have to answer. However, this does answer the second issue about the repeated constitution of the benches. The effect has been that till date, there is neither any FIR nor any follow up investigation. Whether intended or not, the effect is there for everyone to see.

It’s a real pity that in all this, no one is worried about the woman who has repeatedly shown the courage to face the high office and its fury. She has been discredited and defamed as a co-conspirator in an immense conspiracy “to deactivate the office of the CJI” and seriously jeopardise the independence of the Supreme Court. She has been called a delinquent and her integrity has been impeached. It is she who is being compelled to face the most unconstitutional of acts by the Supreme Court. Is this fair, reasonable and equitable?

The Supreme Court is an “integrity institution”. Reasonableness, fairness and morality are supposed to be its hallmark. The morality of the Supreme Court is basically law. It is supposed to hand out even-handed justice as per the law. But where is the law in all this? Does this not trouble the judges? Should they not be doing some soul searching? In the coming days, the Supreme Court and its judges will also have to answer these pertinent questions. I hope they have the appropriate answers.

Dinesh Dwivedi is a senior advocate at the Supreme Court. In a subsequent article, the author will deal with the Justice S.A. Bobde panel and the withdrawal of the complainant from the process.