The SC Must Reaffirm Its Allegiance to Justice – and Victims of Sexual Harassment

By constituting a special bench that included himself, the CJI breached two basic principles central to the doctrine of natural justice: “no man shall be a judge of his own case” and “hear the other side”.

A former Supreme Court staffer’s allegations of sexual harassment against Chief Justice of India Ranjan Gogoi have shaken up the apex court’s elite leadership. Many are wondering whether the institution’s reaction reflects due process or a heavy imposition on the victim, and if the sexual harassment charges have resulted in high institutional or constitutional embarrassment.

Till now, the Internal Complaints Committee (in Supreme Court it is called Gender Sensitisation and Internal Complaints Committee) has not been pressed into action to deal with the complainant’s affidavit and the documents and video clips to corroborate the claims that were sent to 22 judges.

If the publication of the complaint in the digital media could provoke the suo moto constitution of a special bench called In Re: Matter Of Great Public Importance Touching Upon The Independence Of Judiciary with CJI as the head, why couldn’t the GSICC take up the complaint of the woman staffer without insisting on a formal complaint? In fact, the Act provides for rendering necessary assistance to the victim in filing a formal complaint.

Or does justice depend upon the stature of the accused and the rank of the victim? If a complaint is against a high-profile personality, will different laws come into operation? The constitution does not envisage one type of due process for regular citizens accused of sexual harassment and another for persons occupying high offices like the CJI. However, it seems levelling an allegation against a high-profile constitutional authority will not result in an inquiry committee, but a special bench of the three senior-most judges.

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

There are several questions about the facts, procedure and law on this CJI crisis.

Complaint and factual questions

Certain factual aspects of the entire episode are equally baffling. The former employee describes two incidents of molestation in her affidavit, both of which allegedly took place in October 2018, only days after the respondent was appointed as the CJI. she wrote:

“I have been victimised for resisting and refusing the unwanted sexual advances of the CJI and my entire family has also been victimised and harassed due to that, including the loss of jobs and subsequently, arrest and torture in police custody. The CJI has misused his position, office and authority and abused his clout and power to influence the police”

While the main allegation needs to be proven, certain consequential events like the dismissal of two persons from service are a matter of record. The chronology of events needs to be looked into. She was given preference to work at the residence of the CJI, which entails a special appreciation of her skills and after her alleged resistance, she was terminated on charges of ‘insubordination, lack of devotion to duty and indiscipline’.

A file of criminal history was developed against her over a period of months. Finally, she says: “It now seems like the harassment, victimisation, and torture will not stop unless I speak out about the origin and motive for the harassment … now there is an imminent danger to my life that I am compelled to speak the whole truth, in order to save myself and my family.”

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

Reportedly the videos she submitted along with the complaint indicate that Rajnath Singh, the Union home minister, and Amulya Patnaik, the commissioner of the Delhi Police, were made aware of the incident at least as early as January 11, 2019. Did they act on this or not?

Reaction of the respondent

The CJI constituted a special bench that included himself, Justice Arun Mishra and Justice Sanjiv Khanna and said:

“There are two offices that are absolutely independent – The Prime Minister’s Office (PMO) and that of the Chief Justice of India. They want to deactivate this (the CJI) considering the sensitive cases lined up next week. And the elections; I was being targeted in this manner as there are no corruption charges against me: This is unbelievable. I don’t think I should stoop so low. After 20 years of service, I have a bank balance of Rs 6.80 lakh. Check it. I have Rs 40 lakh in my Provident Fund (PF). I used to earn more money as a lawyer. Here I am on the verge of retirement and this is what I get. Nobody can touch me on money, so they find this; this is the reward the CJI gets; I felt should be told from the judicial seat. It’s pathetic. Judges are to work under these conditions. That is why I said good people (lawyers) are not coming to this side (judicial). Who will come? I will not resign over the charges and will sit in this chair and discharge my functions without any fear. I will decide what I have to in the remaining seven months I have here.”

While the allegation is highly sensational and sensitive, the reaction of the CJI undermined the system. CJI Gogoi says it is a big conspiracy to deactivate the CJI. The office of the Supreme Court says it has a bearing on independence of judiciary. The finance minister dubbed the charges as “an assault on institutions”. He also attacked the digital media, alleging that “they are wrecking the system from within…using free speech to destroy the judicial institution”.

A lawyer, Utsav Bains, says he was offered a bribe of Rs 1.5 crore to fix the CJI. The Bar Council of India has officially stated its intent to stand by the CJI and supported his theory of conspiracy to threaten the independence of the judiciary. Which is the truth and who should we believe?

While concluding the ‘hearing’ (whom did they hear?) of the special bench, Gogoi had remarked, “We are not passing any judicial order at this moment. We, however, ask media to show restraint, responsibility, and wisdom so that independence of the judiciary is not affected by baseless allegations.” The mainstream media reported the entire version of the CJI as a part of covering the special bench proceedings, where no other party was present.

Women lawyers in criminal law rightly questioned, “can the judiciary communicate to the media via a judicial hearing?” It is unequal treatment meted out to the parties involved in the dispute. The CJI’s voice with its constitutional strength was heard all over, while the complainant – a woman and a dismissed court staffer – was nowhere to be heard.

Also read: Charge Against CJI Gogoi Should Be Handled Correctly If SC Wants to Keep People’s Faith

Senior advocate and president of the Gujarat High Court Advocates’ Association Yatin N. Oza in an open letter criticised this handling by saying that the impression given was that the “pious chair of the Chief Justice” was utilised to prove the CJI’s innocence in the case through the media.

Oza has also posed queries on factual aspects of the sexual harassment allegations. Another important question he posed was how the complainant was present at CJI’s oath-taking ceremony on a personal invitation and her brother was allowed back door entry into Supreme Court employment.

The law and forum

Besides substantive law, the procedural law or adjective law is equally important in dealing with such accusations. Substantive law and procedural laws like the Indian Penal Code and Code of Criminal Procedural combined with the Evidence Act are largely separate for general crimes.

But sexual harassment – which could be both a crime and a civil wrong impacting the fundamental rights of the victim – has been dealt with a special legislation, the Sexual Harassment (Prevention Prohibition Redressal) Act, with specifically laid down the process of constitution of an inquiry committee along with a procedure for inquiry and consequences. During the pendency of inquiry, the victim-complainant can, in writing, ask for shifting of the accused or herself from the working place.

Definition of an ‘employee’ under the SHPPR Act includes ‘head’ of the department, and the respondent means any person against whom the allegations are made. According to Section 4(2) the Internal Complaints Committee shall consist of: a presiding officer who shall be a woman employed at a senior level at the workplace from amongst the employees; no less than two members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge; and one member from non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating sexual harassment, provided that at least one half of the total members so nominated shall be women. In addition to this empowering act of 2013, the Supreme Court made a profound regulation which is far better than the general procedure to deal with such complaints.

Also read: Skewed Corridors of Justice: Women Continue to Face Sexism in Courts

The Gender Sensitisation & Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013 (GSICC) is a comprehensive code within the SC.

Why should this GSICC not look into the complaint against the CJI? It cannot because allegations of misconduct against a judge can be probed into only after the admission of notice for a motion of impeachment by parliament, as per the constitution.

Two lawyers, Ashish Goel and Gautam Bhatia, in a letter to the chairman of the Bar Council, questioned how an advocates’ body could ignore the breach of two basic principles which are central to the doctrine of natural justice, namely: “no man shall be a judge of his own case” and “hear the other side” as the CJI used his constitutional office to respond to personal allegations against him.

Supreme Court lawyer Karuna Nundy pointed out: “There is a very, very strong tendency to disbelieve the person who is complaining. Not just because of patriarchy, but also because there tends to be a massive power imbalance between the person who is making the allegations and the person who is being accused.”

A view of Supreme Court of India in New Delhi. Credit: PTI

A view of Supreme Court of India in New Delhi. Credit: PTI

No law and forum till 2013

Though the Supreme Court recognised the right of woman employees to work as part of the right to life in working place in 1977, there was no law or full-fledged forum to receive such complaints until 2013. Before that, women victims had no place or chance to raise such complaints against judges, senior advocates and other officers of the court. If a judge had asked the victim ‘why have you not complained?’, her answer could be ‘where should I, sir?’

Now there exists an ICC, but it has no specific mechanism to deal with complaints against judges, more so against the CJI. Not only this, our system is so great that if anybody has any complaint against judges or CJI or former judges or the former CJI, there is no place, mechanism or information about it even now.

There are several RTI requests seeking information about this, which went around from the president’s office to prime minister or law minister and finally landed in the office of CJI or registrar general. The Central Information Commission discussed this matter and opined that such a procedure should be formed, and people should be informed about it.

Also read: Why the Supreme Court Has Found Itself in an Embarrassing Controversy

Where must the victim then go to prove her case? The high powered three-senior-judges bench will certainly overpower the ordinary victim. Unless a very senior lawyer of great face value represents her with all humbleness, her voice would surely be drowned and might not even be heard. The law that mandates secrecy of her name and in camera proceedings with restrictions on media reporting will virtually shrink the openness of hearing. Will that result in justice or injustice?

The Supreme Court in general and the CJI missed a golden opportunity – to reiterate the credibility of the institution as a saviour of the common man’s basic rights – by not referring the matter to the GSICC. At least now the special bench headed by the CJI may cease to exist and a new bench may refer the matter to the GSICC and continue hearings after the submission of the inquiry report and provide an opportunity to the CJI to explain his allegations about a conspiracy to deactivate his office.

It will be appropriate to ask the finance minister, the BCI Chairman, and the lawyer who has alleged a plot to fix CJI. Even this could be challenged as unconstitutional because as per Article 124(4) of Constitution, no judge could be probed into by any ordinary committee without the initiation of an impeachment motion and due to the ongoing elections, an impeachment motion would be impossible even if 50 MPs of Rajya Sabha moved it. Will the GSICC be able to inquire at least after Ranjan Gogoi becomes a former CJI?

Every public office is looking to the apex court for a model deal with allegations against the heads of institutions or high offices. Similarly, every hapless victim is anxiously waiting for a ray of hope for justice. Every step of the Supreme Court is ‘the law for future’. Let no wrong law be fixed, My Lords!

M. Sridhar Acharyulu is a former Central Information Commissioner and professor of Constitutional Law at Bennett University.