Why the Supreme Court Has Found Itself in an Embarrassing Controversy

No in-house procedure can be a substitute for a sexual harassment case. There is an important question before the judiciary: Who will be the custodian of the custodians?

Between December 2018 and April 2019, certain controversies concerning the Supreme Court of India have surfaced:

  1. The first concerns the dismissal of an employee for taking casual leave and protesting against her transfer.
  2. The second surrounds the allegations of the said employee against chief justice of India.
  3. Third is the remedial action taken by the Supreme Court suo motu  under the writ jurisdiction of the court with the chief justice sitting on the bench but not passing the order signed by Justices Mishra and Khanna.
  4. The fourth involves the exclusive in-house procedure for high court and Supreme Court judges.

These controversies are ongoing and may, inas much as they can, put the very notion of justice on trial. Our Supreme Court has often quoted Lord Atkin’s observations in a contempt case of 1936:

“Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”

This article is not intended to obstruct justice or bring into disrepute our justice system – with the Supreme Court at its apex – or the high office of the chief justice of India. It examines issues of due process and procedure.

Dismissal of an employee

An unprecedented controversy has arisen concerning an employee who was transferred from the CJI’s ‘home’ or residence office, suspended and later dismissed from the Supreme Court’s service. The charges against her included questioning her transfer, bringing/soliciting undue influence from the president of the Supreme Court Employees Welfare Association on her transfers and taking leave without approval.

Her response was that she had been transferred three times, she had been given leave for her daughter’s function and was asked to attend office for a little while but couldn’t and the branch officer was informed, and she had spoken to the president of the employees association to find out what was happening but not to influence outcomes. After her suspension order on November 27, 2018, she was asked to appear before a departmental committee hearing on December 17, 2018, but collapsed outside the door due to anxiety and was told on December 19, 2018, that the charges against her had been proven.

The next day, her husband wrote to the officer concerned to present her defence statement. However, on December 21, 2018, she was dismissed from service. In another part of the story, with which we need not directly be concerned, her husband and brother-in-law were dismissed from the Delhi police on a basis unconnected with the Supreme Court – namely a prior incident of 2012 which had been mutually settled, and for alleged links with undesirables.

Also read: Why the Panel to Investigate Sexual Harassment Allegations Against CJI Is Problematic

Far from being a drop in the ocean, or a storm in a teacup concerning an employee, the matter concerns the dispensation of justice by the Supreme Court’s administration. I assume that the Supreme Court Officers and Servants (Conditions of Service and Conduct) Rules 1961 apply. Dismissal from service is a major penalty, though it is not clear from the information available whether her dismissal would disqualify her for future employment (under Rule 11).

It is arguable that such a major penalty should not have been imposed; and although formal procedures were followed, they may have been insufficient and hurried. That can only be found when we examine the record of the inquiry which statutorily would include the charges, a written defence, oral and documentary evidence, orders of the Disciplinary Authority and a report.

Thereafter, due process would have dictated whether a major penalty must be imposed – which would normally follow if there is conviction on a criminal charge or “where the Disciplinary Authority is satisfied for some reason to be recorded in writing it is not reasonably practicable to give to the Court an opportunity of showing cause before (awarding) any of the (major)… penalties…” (Rule 13).

Until we have the full record, we shall not know the details of the rigour of due process that were followed or the reasons for not doing so, bearing in mind that the woman had the same protection that civil servants under Article 311 of the constitution possess. For the present, the internal justice meted out to the employee seems in violation of due process and prima facie excessive. This is becoming more and more evident as information is coming out that she was not given a proper hearing and crucial witnesses were not examined at the inquiry. At the age of 35, her chances of further employment have been diminished.

Though not part of the charges, in the Supreme Court, it transpired that an FIR was filed against her on March 3, 2019, allegedly for taking a bribe from the informant who said he gave her a part payment of Rs 50,000 (part of Rs 10 lakh to be paid) to secure a job in the Supreme Court. She was granted bail on March 12, 2019, but the case was transferred to the Crime Branch which moved for the cancellation of her bail. In turn, she complained, later in March, of harassment by the police, writing letters to the prime minister, National Human Rights Commission and others. If this is a case of victimisation, it would raise more issues.

It could be argued that a little injustice here or there will not dent the majesty of the law. But surely the motto of any court action in its administrative or judicial side must be: “We, who fight for justice, must ourselves be just.”

Scandalising the court

According to the law of contempt, if a person or media makes any allegation against judges or justice system which brings them in disrepute can be punished for scandalising the judiciary. This offence was invented by Justice Wilmot in 1765 in a draft order never delivered in the John Wilkes affair, but published in 1802 by his son.

Since it covers the media, it is a species of constructive contempt. It is included in the definition of criminal contempt under India’s Contempt of Courts Act 1971 (Section 2 (c)(iii)), and in any case also draws from the high court and Supreme Court power as a court of record with the specific power to punish for contempt (Articles 129 and 215 of the constitution) and any other power in addition to the powers under the Act of 1971.

In an 1899 Privy Council case, English judges said this offence was “obsolete” for England, but may be relevant in “small colonies consisting principally of the coloured population”. This redemption for English justice was short lived and scandalising the judges was revived, but used sparingly in recent years. In India, the scandalising jurisdiction is used more frequently, despite the caution of Justice Krishna Iyer in the Mulgaonkar case (1978).

With this introduction, let us turn to our case. On April 19, 2019, the woman who was dismissed wrote to 22 judges of the Supreme Court detailing sexual harassment and sexual advances by the CJI in October 2018, giving explicit details of events when advances were made. She claimed further humiliation by being forced into apology under pressure for her insolence and that her dismissal was a case of victimisation, since the alleged major embarrassing incident took place on October 11, 2018. For our present purposes, we need not elaborate on the details.

Also read: Why CJI Gogoi Should Step Away From Judicial Work Till In-House Inquiry is Complete

What is important for our purpose is that when the media sought clarification from the CJI, the relevant response of secretary general Sanjeev S. Kalgaonkar (apart from denying victimisation, and asserting that her family had criminal antecedents and treating the allegations against the CJI as an after thought to her dismissal) categorically stated:

“The allegations regarding 11th October 2018, as well as other allegations as can be discerned from your emails are completely and absolutely false and scurrilous and totally denied… the motive behind these false and scurrilous allegations is obviously mischievous.”

Whether this response was shared with the CJI before or after it was made is not clear, though no secretary general would normally make such a public reply without consultation. One must, therefore, take this statement as the official response of the Supreme Court in consultation with the CJI. Hence it was the CJI’s response as well.

It is necessary to add that after Vishakha (1997), cases of sexual harassment are to be dealt with by a special procedure. But the Supreme Court’s Gender Sensitisation and Sexual Harassment of Women Regulations 2013 exclude complaints by employees in that Regulation 2 (a) defines an aggrieved person to exclude “a female already governed by the Supreme Court Service regulations”. This is a significant exclusion, denying the rigour of sexual harassment procedures which are applicable to non-employees within the precincts of the court but not the employees.

Be that as it may, the #MeToo movement has advanced the presumption that the complainant’s version be treated as prima facie bonafide. A sexual harassment case against CJI Gogoi needs to be moved forward.

Procedure for scandalising

We must pause here for a moment because the secretary general clearly felt that a case of scurrilous scandalising is made out, the procedure ahead is clear. Under the Contempt of Courts Act 1971, a case of criminal contempt can only commence if the attorney general or solicitor general permit or if the Supreme Court does so on its own motion (Section 15 of the Act 1971). The way forward was simple: Issue notice for contempt to the woman and anyone else who repeated the alleged scandalising comments, including the media. But the court did not initiate a notice of contempt nor did the solicitor general present such a motion to the court.

Therein lies the problem. If such a notice was issued, the contempt proceedings would normally be in open hearings. Both the Mulgaonkar case concerning the Indian Express (1978) and Shamlal concerning the Times of India (1978) were about exposing the pusillanimity of Supreme Court judges during the Emergency. Except Chief Justice Beg, no one wanted this. Two of the judges (Justices Chandrachud and Bhagwati) were in line to become CJIs. Justice Krishna Iyer, behind the scenes, and in his judgment, counselled restraint to avoid further publicity, which is inevitably one of the consequences of contempt hearings in open hearings. No less, the views aired at the time were that even though truth was not specifically a defence, it would be invoked against the justices.

Justice Krishna Iyer told me he was well aware of this consequence. His judgment constitutes what have come to be called the Mulgaonkar guidelines. No contempt – no controversy. After the amendment of the Contempt of Court Act 1971, in 2006, Section 13 of the Act specifically allows truth as a defence. The relevant portion reads:

“13. Contempts not punishable in certain cases – Notwithstanding anything contained in any law for the time being in force … (b) the court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bonafide.”

This would create awkwardness in the proceedings, to say the least. ‘Truth’ as a defence is available “in any proceeding for contempt”. In our present context, it would mean that the woman would present all the detailed evidence in her favour for invoking truth as defence, even thought the proceeding would be to protect the judge, not the complainant.

This was the only remedy by and through which the Supreme Court could have proceeded, but it chose not to do so. Treating this case as a purely contempt case would have proved hazardous for the CJI.

The Supreme Court’s suo motu action

Instead of a case of contempt for scandalising, the Supreme Court processed a writ petition as a “Matter of Great Importance touching upon the Independence of the Judiciary – mentioned by Tushar Mehta: Secretary General of India”. No petition was filed. It is clear that even if the CJI was the master of roster, he could not have handpicked judges and certainly not sat on the bench.

It cannot be overlooked that Justice Gogoi was part of the four judges who protested in public then Chief Justice Deepak Misra’s abuse of his power over the roster. Chief Justice Misra had also handpicked Justice Arun Mishra, who appears to have been picked in the present case in the special Saturday hearing on April 20. The less said, the better.

For the moment, let us assume that the petition was maintainable and that either (a) someone’s fundamental right was infringed upon, or (b) that this writ was part of the undefined power of the Supreme Court as a Court of Record, which specifically includes the power to punish for contempt. But since these proceedings were in lieu of contempt for scandalising, a new procedure was evolved at the instance of the CJI, albeit on the mentioning of solicitor general Tushar Mehta.

In the hearings of the suo motu case, the Supreme Court did not caution a censorship of details which were in the public domain but invited the cooperation of the media by stating in its order of April 20:

“Having considered the matter, we refrain from passing any judicial order at this moment leaving it to the wisdom of the media to show restraint, act responsibly as is expected from them and accordingly decide what should or should not be published as wild and scandalous allegations undermine and irreparably damage reputation and negate independence of judiciary. We would therefore at this juncture leave it to the media to take off such material which is undesirable.”

This is not a gag order, but a request to be respectfully treated as a gag: In the Sahara case (2012), the Supreme Court assumed a power to postpone reportage where criminal proceedings were pending, under the court’s inherent power as a court of record. The inherent power seems to be increasing by leaps and bounds. This invisible reservoir of power is slowly becoming visible and subject to diverse uses.

What needs elucidation is that the court’s proceedings of April 20 were specially held on a Saturday morning with attorney general K.K. Venugopal, solicitor general Mehta and president of the Supreme Court Bar Association, Rakesh Khanna being present. What seems astonishing is that CJI Gogoi was also part of the bench, but not a signatory to the order. No person can be a judge in their own cause or hand pick a bench. At best, it could have gone to some other bench without the urgency of a Saturday hearing. Master of the roster or not, I think the proceedings in this writ petition are sufficiently tainted and should be closed.

Instead of closing this suo motu writ petition, whose sole purpose was to quiet the storm of protest arising out of the CJI controversy, on April 23-24 the court issued notice to advocate Utsav Bains who filed an affidavit in which he asserts that there was a wider conspiracy involving a corporate figure who, along with an alleged fixer Romesh Sharma, tried to “frame the Hon’ble Chief Justice of India in a false case of sexual harassment to pressurize him to resign” and that Bains was privy to documents under sealed cover to prove this. On April 24, the bench consisting of Justices Arun Mishra, Nariman and Gupta summoned the highest officers of the CBI and police. A retired judge of the Supreme Court, Justice A.K. Pattnaik has now been asked to investigate the matter. The simplest solution would have been to ask the CBI to investigate and file a report without the ensuing drama which has now become a part of the crisis.

The in-house procedure

The in-house procedure was created in the face of the agitation of the Bombay bar in 1995 concerning the chief justice of the high court in the Ravichandran Iyer case, since judges did not want complaints to be aired ad lib against them short of impeachment. This in-house procedure was intended to protect public faith in high court judges. The question posed by the judgment was:

“When the judge cannot be removed by impeachment process for such conduct but generates widespread feeling of dissatisfaction among the general public, the question would be who would stamp out the rot and judge the Judge or who would impress upon the judge either to desist from repetition or to demit the office in grace? Who would be the appropriate authority? Who would be the principal mover in that behalf? The hiatus between bad behaviour and impeachable misbehaviour needs to be filled in to stem erosion of public confidence in the efficacy of judicial process.”

The purpose was to prevent public discussion by the media or agitation by the bar and to protect judges by harmonising free speech rights. The judgment, therefore, explores self regulation: “It seems to us self regulation by the judiciary is the only method which can be tried and adopted.” The trajectory was an in-house inquiry following which matters could eventually be acted upon by the CJI until when the bar was to “suspend all action”. The court said,

“The Chief Justice of India, on receipt of the information from the chief justice of the high court, after being satisfied about the correctness and truth touching the conduct of the judge, may tender such advice either directly or may initiate such action, as is deemed necessary or warranted under given facts and circumstances. If circumstances permit, it may be salutary to take the judge into confidence before initiating action. On the decision being taken by the Chief Justice of India, the matter should rest at that. This procedure would not only facilitate nipping in the bud the conduct of a judge leading to loss of public confidence in the courts and sustain public faith in the efficacy of the rule of law and respect for the judiciary, but would also avoid needless embarrassment of contempt proceedings against the office bearers of the Bar Association and group libel against all concerned.”

Of course, in our case, it is the CJI who is involved. In a better-late-than-never initiative, the CJI passed the controversy to Justice S.A. Bobde, the senior-most judge after the CJI, who will now assume the role assigned to the CJI in the Iyer case. Since Justice N.V. Ramana said he will not be a part of the panel, his place has been taken by Justice Indu Malhotra. Who will the panel report to? Surely not to CJI Gogoi? We are compelled to raise the further question as to whether CJI Gogoi was fully involved in the creation of procedure in this case.

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

This procedure was also used in the Bangalore crisis and Justice Gupta (then chief justice of Kerala who inquired into it) told me that nobody wanted to depose against the judges. In the Madhya Pradesh case, such a committee was appointed against high court Judge ‘X’ who was later absolved. How would the woman complainant fare in a committee examining the case against a CJI noting that (a) the Supreme Court’s secretary general has already taken a view that the allegations are scurrilous and (b) truth in its totality would not be a defence. I really think this in-house procedure was directed against the bar in Iyer’s case in a particular situation and its extension is dangerous and undesirable as a clandestine in camera process.

No in-house procedure can be a substitute for a sexual harassment case.

Reviewing the controversy

This controversy is embarrassing in many respects:

  1. I believe the dismissal proceedings against the woman employee were unfair.
  2. The Supreme Court through its secretary general had already taken a view that her comments were scurrilous, presumably with the CJI’s knowledge since it aired his defence.
  3. The procedure adopted in the Saturday hearing was unfair and tainted and must be closed.
  4. If the Supreme Court felt the court was scandalised, it should have issued contempt proceedings, giving the accused woman the right to invoke truth as a defence.
  5. The in-house procedure under the Iyer case is clumsy and unfair.
  6. No in-house procedure can be a substitute for a sexual harassment case. The woman would have little chance and it is a moot question who would depose against the CJI under these circumstances.

There remains the question of whether during his investigation, the CJI should continue to sit in his judicial or administrative capacity. I am strongly of the view that he should continue to discharge both these functions in the confidence that he will not interfere with any procedure further. We have yet to learn the manner in which the in-house procedure will proceed.

We have seen that the CJI is likely to have known of the dismissal proceedings. He was certainly instrumental in constituting the suo motu bench. He is likely to have known of the secretary general’s statement in his defence that the allegations were scurrilous. He had a choice to proceed in contempt as he did in the Justice Katju case, but may have felt that this might be perilous in the present case. He may have been right to pass on the controversy to an in-house, procedure, as an alternative because after the hearing on April 23, the judges of the first five courts appear to have met in conclave while hearings in those courts were suspended. The CJI seems to be in the know of the choices of procedures to deal with the crisis – each more inventive than the other.

In any case, this is a no-win situation. If the in-house procedure results in his favour, it will be sought to be questioned – but there is no forum for doing so. If it goes against him, the embarrassment will be greater, leading to resignation or impeachment.

Looking to the future

Having said this, there is a need for a judicial accountability mechanism for the high courts and Supreme Court through a constitutional amendment, as in so many countries. There must be a procedure to answer the adage Quis custodiet ipsos custodes: Who will be the custodian of the custodians?

Rajeev Dhavan is a senior advocate in the Supreme Court.