On Tuesday, the complainant in the sexual harassment case against the Chief Justice of India (CJI) decided against participating further in the proceedings of the in-house enquiry being conducted by three sitting judges of the Supreme Court. In a press release, the complainant set out four reasons for her decision: that she was not allowed to have her lawyer accompany her, that there were no video or audio recordings of the committee proceedings, that she had not been given copies of her depositions and that she had not been informed of the procedure that the committee was following.
At this point, it is unclear what will happen. Technically, having heard the complainant, the in-house committee could now proceed without her, examine any witnesses it deems fit, and come to its conclusions ex parte. At the same time, the legitimacy of these proceedings – which have been of an informal and ad hoc character so far (more on that anon) – cannot but be significantly damaged by the public exit of the complainant herself.
While we wait to see how events unfold, it is perhaps an apt moment to recall how it is that we got here. But before that, a few points need to be made.
Structures and institutions
Sexual harassment is bound up with questions of power. Power operates along multiple axes in the ways that it structures our lives and relationships, and in the ways that it distorts them. It is of little surprise, then, that cases of sexual harassment (of varying degrees of severity) so often flow out of situations where differences in power are at their starkest, and the possibilities of abuse are rife: between teachers and students, employers and employees, the rich and the poor, army-men and occupied populations, and so on.
And structuring all these relationships is the institution of patriarchy, that, in its own way, distorts relationships even in the absence of these more obvious markers of power. For example, the sense of impunity that society often attaches to male conduct (“boys will be boys”), accompanied by the corresponding sense of stigma attached to those at the receiving end of sexual harassment, skews power dynamics right from the outset.
Why is this important? It is important because the way in which power dynamics frame and characterise sexual harassment cannot but spill over into the structures of accountability that are set up to address them. If those structures of accountability do not take into account this fact, and do not seek to pro-actively mitigate its effects, accountability itself will remain a mirage. To put it in simple terms: when two deeply unequal parties are brought before a tribunal, where the powerful stands as the accused and the powerless as the accuser, “neutral” rules that treat them as formally equal will invariably perpetuate the initial injustice.
Progressive anti-sexual harassment laws recognise this. For example, the famous Vishaka judgment recommended that complaint committees should involve third parties (either an NGO or someone else familiar with issues of sexual harassment) precisely to “prevent the possibility of any undue pressure or influence from senior levels [of the organisation].”
The 2013 POSH Act requires that an internal complaints committee be headed by a senior woman employee. Among other things, it allows for a complainant to ask for a transfer to another workplace, while the enquiry is pending. These are all provisions (and there are others) that specifically recognise the inequalities of power that seep into accountability processes, and the need to design structures that can adequately address them.
Keeping this framework at the back of our minds, let us now look at what has transpired in this case. The facts are well-known, and have been discussed threadbare in the public domain: on the (Saturday) morning that the allegations broke, the Chief Justice convened a bench of himself and two other judges (Arun Mishra and Sanjiv Khanna JJ). The government’s top law officers (the Attorney General and the Solicitor General) were present in court. From the bench, the Chief Justice proclaimed his innocence, declared that the allegations were part of a conspiracy to destabilise the judiciary and pointed to the criminal antecedents of the complainant and her family; in this, he was supported by both the law officers.
There has been extensive criticism – including by the SCBA and the SCAORA – on the procedural improprieties of this hearing. However, there is something even more important here: the deeply unequal power relations that structured the relationship between the accuser (a former employee) and the accused (the Chief Justice of India) were distorted even further when the latter decided to ascend the judicial pulpit to exonerate himself, with the support of two other judges of the Supreme Court, as well as the government’s top two law officers.
A blanket denial of allegations, an attack upon the character of the complainant and references to a large conspiracy are all common responses in cases like this; not everyone accused of sexual harassment, however, has the chance to proclaim his innocence in Courtroom No. 1 of the Supreme Court, with the Attorney General and the Solicitor General to call upon. In effect, the complainant was damned by five of the most powerful men in the country, before being heard.
This situation was compounded further by the hearing on April 24. The bench now comprised of Mishra, Nariman and Gupta JJ. This bench decided to look into an affidavit filed by Utsav Bains, claiming that he had been offered a bribe to frame the Chief Justice. Once again, I will not here discuss the controversy that has erupted around Utsav Bains and his affidavit(s). There is a different point: in the morning hearing, the bench expressed its desire to combat the “larger conspiracy” ostensibly at play, and summoned the chiefs of the Delhi Police, the Intelligence Bureau and the CBI, for a closed-door meeting. When an apprehension was expressed about how this would affect the sexual harassment allegations, Nariman J. emphasised that the two issues were entirely separate.
Unfortunately, Nariman J.’s protestations ring hollow. When the special bench in question was following up the hearing that the Chief Justice had convened on Saturday, and when the claims about a larger conspiracy against the Chief Justice and the judiciary were themselves now linked to Utsav Bains’s accusation that he had been bribed to fix the Chief Justice in a sexual harassment case, nobody could possibly maintain with a straight face that the two issues were separate.
But most damningly of all, in that very morning hearing, Mishra J. specifically observed that “CJI Gogoi was trying to clean up the system” – hinting, thus, that it was for his independence that he was being targeted. How could anyone possibly argue that the judicial discourse around the “larger conspiracy” had nothing to do with the allegations of sexual harassment?
It is at this point that the question of power once again comes to the fore. Without having (yet) heard the complainant, the entire focus of the three-judge bench was on a possible conspiracy against the judiciary, a conspiracy that could have legs – and let’s be blunt here – only if the complainant was a liar.
And every action taken by the bench – from Mishra J.’s statements in the morning hearing to the decision to summon law enforcement agencies for a closed-door meeting, to the decision to have the matter probed by (Retd.) Justice A.K. Patnaik was, once again, a distortion of the power relationship against the complainant. Here was a bench of three Supreme Court judges saying that there were strong enough indications that the complainant was indeed a liar, very publicly summoning high-level law-enforcement agencies to their chambers (indeed, one of those agencies – the police – was precisely the entity that the complainant accused of having victimised her), and finally ordering a probe by a retired Supreme Court judge. And all this – and this cannot be stressed enough – without the complainant having been heard. Even once.
Meanwhile, Bobde J. – the second senior-most judge of the Supreme Court – had set up an in-house committee consisting of himself, Indira Bannerjee J. and N.V. Ramana J., to look into the sexual harassment allegations. At this point, it took a public intervention by the complainant for Ramana J. to (correctly) recuse himself from the panel – for the very simple and straightforward reason that on the day that the allegations broke out, he had already dismissed them (effectively) as having been motivated.
It is one of the most basic principles of procedural justice that if you have already commented upon the merits of the case in a way that shows a clear view one way or another, you should not be on the enquiry committee that is probing that case. So why did it need the complainant to point this out before appropriate action was taken? Why wasn’t this evident at the time the in-house committee was constituted? What does it do to the power relations in this case, already distorted beyond recognition after the Saturday morning hearing and the April 24 hearing, for the Supreme Court to constitute an in-house committee seemingly either oblivious or indifferent to the fact that one of its members had conflicted themselves out by very publicly taking the side of the Chief Justice?
It is in this institutional context that the complainant’s final act – to withdraw from the proceedings – now needs to be understood. When the in-house committee was constituted, the Women in Criminal Law Association published a letter asking that best practices in cases of enquiries into sexual harassment, as set out under the POSH Act, be followed. What the court elected to do, instead, was to set up what was effectively an ad-hoc process, with the constitution of the in-house committee (where, after Justice Ramana’s recusal, Indu Malhotra J. came in).
Among other things, one crucial departure from the Vishakha Guidelines was the absence of an external member on the committee, an absence rendered even more critical by the fact that the complaint was against the (administrative) head of the institution himself.
That being the case – and given everything that had already happened before, as discussed above – the onus upon the committee was particularly strong to ensure that the unequal power relations that characterised this case were mitigated by a set of structures and procedures that were designed to level the playing field in substantive ways.
In particular, the in-house committee had to deal with how best to restore the balance after two separate benches, one judge and two government law officers had already suggested that the allegations were fabricated, how to deal with a situation where some of the witnesses testifying would be effectively testifying against their employer, how to deal with the fact that it was three sitting judges who were hearing allegations against their sitting colleague, the CJI and above all else, how to correct the sheer imbalance of power that exists between an ex-employee and the Chief Justice of India.
The complainant’s press release suggests that the committee comprehensively failed to address any of these issues. Each of the four points raised by the complainant speaks to issues of power: the refusal to allow the complainant a lawyer/support person, while she is facing a committee of three judges handling a complaint against one of their own colleagues, and the (administrative) head of their own institution, in a context when multiple other judges have publicly come out against the complainant, distorts the power relationship, the refusal to record the proceedings and the refusal to provide the complainant with a copy of her deposition (a procedural right that is guaranteed under the POSH Act) deprives the complainant of any kind of effective oversight over the process, and distorts the power relationship; but perhaps most of all, the refusal to disclose the procedures – in a case where procedures matter vitally, because they are critical to addressing the power imbalance, distorts the power relationship into something that is beyond hideous.
And underlying all this is one simple fact: in any other situation, the complainant could have taken her dissatisfaction with the procedure to an appellate authority, and eventually, yes, to the court. But here, there is no appeal from what the in-house committee does. That makes sensitivity to every single aspect of the process doubly, triply important. But once again, the facts reveal that the court is either oblivious or indifferent to these issues.
It hardly needs to be said that this is not an essay about innocence or guilt, but rather, about the preconditions necessary to ensure that questions of innocence or guilt can be answered adequately. And for that, this is the point: at the time of writing, the sexual harassment complaint against the Chief Justice has been handled by no fewer than nine judges of the Supreme Court. As the above analysis demonstrates, each one of them has acted in ways that perpetuate the existing power imbalance.
In the Saturday hearing, three of them either made statements against the complainant or were complicit in the making of those statements by their silence. In the hearing of the 24th, two others did much the same. One judge agreed to sit in the in-house committee despite being conflicted out on the most basic application of standards of conflict. And three judges who did finally conduct the in-house enquiry did not follow processes that were sensitive to the power imbalances in this case, but rather, it appears, quite the opposite.
In 1997, following the murder of Stephen Lawrence, the UK government commissioned what would come to be known as the MacPherson report. Among other things, the MacPherson report set out the definition of “institutional racism”:
“The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people.” (Emphasis supplied)
The crucial point about the MacPherson definition was that for an organisation to be institutionally racist, it doesn’t need to have people who intend to be racist and to act upon those intentions. Rather, institutional racism stems from “unwitting prejudice”, “ignorance”, or “thoughtlessness” – almost internalised conditions, acted upon without any conscious desire or motivation to oppress or disadvantage anyone.
It is in a similar way that the above events demonstrate that there exists an institutional problem at the Supreme Court when it comes to dealing with allegations of sexual harassment, a problem that has been laid bare over the last two weeks. No doubt unwittingly, judges of the Supreme Court who have been tasked with handling the case have shown themselves unequipped to address – or even acknowledge – the bleeding heart of the problem: that this is a question of power, and without addressing that, you address nothing.
Gautam Bhatia is a lawyer and author of Offend, Shock or Disturb: Free Speech Under the Indian Constitution. This article first appeared in his personal blog, Indian Constitutional Law and Philosophy.