The Supreme Court’s proceedings in the matter of In Re: Matter Of Great Public Importance Touching Upon The Independence Of Judiciary – mentioned by Tushar Mehta, solicitor general of India on April 20, 2019, Saturday raise serious questions touching the very foundation of the court, the rule of law, democracy and of course the rights of an unrepresented individual. This calls for an in-depth nationwide debate on the issue.
Corpus Juris Secundum (well known jurisprudence text) referring to standard of conduct, disabilities and privileges of judges, state,
“It is a basic requirement, under general guidelines and canons of judicial conduct, that a judge’s official conduct be free from impropriety and the appearance of impropriety and that both his official and personal behaviour be in accordance with the highest standard society can expect. The standard of conduct is higher than that expected of lay people and also higher than that expected of attorneys.”
Restatement of Values of Judicial Life (as adopted by the full bench of the Supreme Court on May 7, 1997) states inter-alia:
1. Justice must not merely be done but it must also be seen to be done. The behaviour and conduct of members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly any act of the judge of the Supreme Court or a High Court, whether in official or personal capacity, which erodes the credibility of this perception has to be avoided.
7. A Judge shall not hear and decide a matter in which a member of his family, a close relation or a friend is concerned.
16. Every Judge must at all times be conscious that he is under the public gauze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held.
Chief Justice of India Ranjan Gogoi became the chief justice with huge expectations. Let us hope and trust that he lives up to them.
However, each of the actions of Chief Justice Ranjan Gogoi before, during and after the hearing reflect impropriety and the appearance of impropriety, and run contrary to the highest standard society can expect from a judge. His conduct raises serious question marks as to his fitness for the high responsibility of judicial office or his continued ability to dignify the administration of justice thereby deserving the confidence and respect of the public. They are:
(1) Supreme Court Rules provide in Order II Rule 5 ‘the Court shall not ordinarily sit on Saturdays nor on any other days notified as Court holidays in the Official Gazette’,
(2) Yet, he constituted a bench and fixed an imaginary matter for hearing on Saturday, sans urgency,
(3) When, where and before whom was that mention made, and who passed an order, administrative or judicial to constitute the bench and hear the matter post-haste is a mystery. As the master of the roll, the chief justice alone could have done this. This raises very disturbing questions as to meetings that he may have had with the solicitor general prior to the public notice. The nation is only left to speculate.
(4) The clear admission of the chief justice of having received four different communications from media organisations on the previous evening (which clearly proves the reason for it).
(5) During the hearing, utterances by the chief justice were unbecoming of the highest judicial office and completely irrelevant, personal and damaging to the institution of the Supreme Court, and to the individual concerned,
(6) The statements against the individual concerned as to her criminal antecedents, two pending FIRs and an application for the cancellation of bail coming up before the court (on the same day) are damning and take away all the human and constitutional rights to get fair justice. Series of drastic actions earlier taken against the individual and family members adds to their woes,
(7) This was a clear attempt on the part of Chief Justice Gogoi to exonerate himself by pre-empting any possible in-house enquiry pursuant to the representation dated April 19, 2019 by the individual concerned.
The need for full investigation into the complaint stands justified with these.
In a 2012 judgment, the Supreme Court lamented,
“Vishaka judgment came on 13-8-1997. Yet, 15 years after the guidelines were laid down by this Court for the prevention and redressal of sexual harassment and their due compliance under Article 141 of the Constitution of India until such time appropriate legislation was enacted by Parliament, many women still struggle to have their most basic rights protected at workplaces.”
Interestingly and pertinently, the bench which declared that law comprised Justices R.M. Lodha, Anil R. Dave and Ranjan Gogoi.
Again by order dated July 17, 2013 in Ms. Binu Tamta and Anr. vs High Court of Delhi and Ors., it directed the framing of “The Gender Sensitisation and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations,” (Later notified on September 27,2013) and apply to ‘Supreme Court of India Precincts’ which include the court block or ‘any other part of the premises under the control of the Hon’ble Chief Justice of India’. Regulation 3 expressly states “no women shall be subjected to sexual harassment at the Supreme Court of India precinct”. Sexual harassment is defined widely and includes:
viii. Any conduct whereby, the Respondent takes advantage of his position and subjects the aggrieved woman to any form of sexual harassment and seeks sexual favours specially while holding our career advancements whether explicitly or implicitly, as an incentive or a natural result of submitting to the insinuations/demands of the Respondents.
The law so declared by the Supreme Court in Vishaka, Medha Kotwal Lele and Binu Tamta cases binds the Supreme Court on all fours. Regulations of 2013 and guidelines of 2015 need to be interpreted liberally. Proprio vigore, they must apply to all, including the judges working within the Supreme Court precincts. Any complaint against them of sexual harassment must, therefore, be properly investigated.
Since the complaint of the individual concerned is against the chief justice himself, it may just as well be in the interest of the institution and to scotch any doubts as to the alleged conspiracy, political interference or falsity of the complaint, that the internal sub-committee must be broad-based to have a sitting judge of the Supreme Court and a respected senior advocate amongst others as members. Constitution of the committee must be decided by the five senior-most judges excluding the chief justice.
Pertinently, the committee on in-house procedure as constituted by the Supreme Court gave a report, “For taking suitable remedial action against judges, who by their acts, omission or commission do not follow universal values of judicial life including those included in the Reinstatement of Values of Judicial Life.” The report given deals with a judge of the Supreme Court’ and prescribes inter alia;
“that if a complaint is received against a judge of the Supreme Court, the Chief Justice of India shall first examine it and if he is of the opinion that the matter needs a deeper probe he will constitute a Committee consisting of three judges of the Supreme Court and examine the complaint as per the procedure prescribed for High Court judges and Chief Justice of India shall take action on the findings of such a Committee.”
Proprio vigore this report accepted by the full court in its meeting on December 15, 1999, must apply to the chief justice as well.
55.1 The “In-House Procedure” framed by this Court, consequent upon the decision rendered in C. Ravichandran Iyer case can be adopted to examine allegations levelled against the Judges of the High Courts, Chief Justices of the High Courts and Judges of the Supreme Court of India.
55.2 The investigative process under the “In-House Procedure” takes into consideration the rights of the complainant, and that of the Judge concerned, by adopting a fair procedure, to determine the veracity of allegations levelled against a sitting Judge. At the same time, it safeguards the integrity of the judicial institution.
This court further declared;
56.3 In order to ensure that the investigative process is fair and just, it is imperative to divest the Judge concerned (against whom allegations have been levelled), of his administrative and supervisory authority and control over witnesses, to be produced either on behalf of the complainant, or on behalf of the Judge concerned himself.
It is well settled that extraordinary facts demand extraordinary solutions. The judiciary must tune itself to think out of the box to meet with any situation.
In C. Ravichandran Iyer’s case the Supreme Court had declared:
To keep the stream of justice clean and pure, the Judge must be endowed with sterling character, impeccable integrity and upright behaviour. Erosion thereof would undermine the efficacy of the rule of law and the working of the Constitution itself. The Judges of higher echelons, therefore, should not be mere men of clay with all the frailties and foibles, human failings and weak character which may be found in those in other walks of life……. In short, the behaviour of the Judge is the bastion for the people to reap the fruits of the democracy, liberty and justice and the antithesis rocks the bottom of the rule of law.
What happened on that fateful Saturday is the anti-thesis of the rule of law and will disturb the minds of every citizen. To ensure that their faith in the institution remains, the Supreme Court, comprising justices other than the chief justice, must sit together and address the problem at hand and not wish it away by treating it as an attack on judiciary or attempt to prevent the chief justice from discharging his function of account of important matters listed before him (by himself as the master of the roll).
The complaint of the individual concerned must be taken to its logical end. Nothing short of that will restore the credibility of the institution and the faith of the people in it. The chief justice, in the meanwhile, must voluntarily withdraw from his duties to instil confidence. It may well happen that the executive branch of government may take undue advantage of the weakness of the chief justice.
Remember the prophetic words of Dr B.R. Ambedkar when he said in a constituent assembly debate:
With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent, person. But after all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have…
Let us hope that the institution lives up to the expectations!
Note: Since this article was written, the Supreme Court appointed its senior-most puisne judge, Justice S.A. Bobde, to conduct an in-house inquiry into the charges. Justice N.V. Ramana and Justice Indira Banerjee are also on the special panel.
Dushyant Dave is a senior advocate and former president of the Supreme Court Bar Association.
This article was originally published on Bar & Bench.