Gogoi Case a Reminder that India Lacks System of Judicial Accountability

Independence of the judiciary does not mean independence from criticism or impromptu denial of allegations against judicial and non-judicial behaviour.

Judges have immunity for bona fide acts in the discharge of their judicial duties but not for anything else. This is settled law from a statute of 1850, now consolidated in the Judges Protection Act 1985 and the Penal Code. But layer upon layer of procedural protections have been added. The Veeraswami case (1991) protected high court and Supreme Court judges from any criminal complaints except with the permission of the Chief Justice of India; and, if against the CJI, from some other Supreme Court judge.

Removing HC and SC judges entails a complex impeachment procedure. The in-house procedure in Iyer’s case (1995) was to silence the public, and was adapted in the ‘X’ case (2015) to other cases “to ensure that the investigative process affords safeguards against favouritism, prejudice or bias”.

In the Jaising case (2003), the court decided that the reports and records of in-house procedures were not to be made public. The CJI case (2019) exposes unparalleled defects in all-purpose in-house procedure. Here, we are not concerned with the merits of the complaints against the CJI but the procedure to be followed not just in sexual harassment cases but to handle any, and all, complaints against SC and HC judges.

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

Flawed procedure

The Supreme Court Regulations on Sexual Harassment, 2013, exclude an employee from complaining. There is no procedure for sexual harassment complaints against judges. However, in 1997 the Supreme Court laid down, model guidelines to enunciate the ideal procedure to be used in sexual harassment complaints. It would be useful to compare the in-house procedure followed in 2019 CJI case with the procedure prescribed by the Supreme Court as guideline.

Let us compare:

S.No. Guideline In-house
1. Committee to have 3 members- majority of women and one outsider. At first, the Committee had 2 male members and one female, and later 2 women and 1 male. There were no outsiders.
2. Complainant to file documents, statement list of witnesses and material personally or through a volunteer. Complainant wanted legal representation which was denied.
3. Respondent to give written responses after 7 days with details This requirement appears to have been waived, because the complainant withdrew from the process.
4. Complainant and respondent to file further material. This stage was not reached. Respondent heard ex parte.
5. Proceedings to be videographed. This was not followed.
6. Complainant can be accompanied by a volunteer. This was not followed.
7. The committee could call witnesses and explore new facts if required. It did not reach that stage but even after the complainant withdrew, the CJI was called.
8. Aggrieved women to be protected from trauma and not to be placed face to face with the respondent. This stage did not come because procedure broke down earlier.
9. The parties could file interrogatories This stage was not reached, but it does not seem likely this would have happened.
10. Committee to proceed ex parte if respondent refused to appear. In this case, ex parteprocedure was proceeded against the complainant to give respondent a clean chit.
11. Inquiry to be completed within 90 days. In the novel ex parteapproach the inquiry was concluded post-haste.
12. Anonymity to be followed. In this case, the respondent’s identity was known.
13. Confidentiality of all information and records to be maintained. In this case, this was maintained but outcome became known.
14. Action for false complaint or evidence. The complainant had already been dismissed on trivial charges.

Note: The above emerges from the public domain and needs verification from undisclosed records.

Each part of this chain is important. In this case there was: the initial absence of a women majority, the absence of an outsider on the committee, denial of videography, no permission for (lawyer) volunteer, prior response from the respondent in a press note and no independent examination of witnesses. Due process is the heart of the law, if it fails the law itself fails.

Status of the court

An imperfect argument is made that we should now let this controversy die because it will dent the status and reputation of the Supreme Court. In fact, no one who is party to the controversy or the protests that followed has attacked the Supreme Court’s role as a constitutional institution. The court is part of Indian democracy, praised for its work and constructively criticized – as it must be.

No one has challenged the integrity or excellence of the in-house committee’s members – Justices Bobde, Banerjee and Malhotra. Nor are there allegations that the CJI be treated as guilty until proved innocent – even though certain defensive measures by the CJI in respect of constituting benches in his own cause have drawn criticism. Hopefully, such knee-jerk reactions will never be repeated. While we must look to the future, for the present, there is a need to place the record of the in-house proceedings in the public domain. The allegations are already known, but the public needs to be satisfied that due process was followed in this case– without entering into whether disclosure in this case will be a precedent for the future.

Also read: Interview | ‘I Have Lost Everything’: Woman Who Alleged Sexual Harassment by CJI Gogoi

As we look to the future two concerns emerge. The narrower concern is the absence of a procedure for sexual harassment cases. The in-house procedure has proved to be a failure. The wider concern is that we do not have a day-to-day system of judicial accountability to deal with complaints against the higher judiciary. Independence of the judiciary does not mean independence from criticism or impromptu denial of allegations against judicial and non-judicial behaviour.

Throughout the world, such formal mechanisms exist. In India, our constitution makers assumed that judges would normally be above suspicion. The impeachment procedure deals with the extreme case. But between the impeachment procedure and in-house process, there is a yawning gap. There is an enormous danger for India to travel into the future without a proper judicial complaint procedure. Unfortunately, this challenge has been ignored and substituted by clumsy alternatives. If the independence and status of the judiciary is to be preserved, the time has come for an urgent discussion on this issue – leading towards amending the constitution in this regard.

Rajeev Dhavan is a senior advocate at the Supreme Court