NEW DELHI —On Saturday, April 20, normally a holiday for the Supreme Court, an unusual notice was circulated. It stated that a special bench comprising the Chief Justice of India Ranjan Gogoi, Justice Arun Mishra and Justice Sanjiv Khanna was being constituted to urgently deal with a case self-importantly titled “A Matter of Great Public Importance Touching Upon the Independence of Judiciary” that was to be mentioned by the Solicitor General Mr. Tushar Mehta at 10:30 am.
Meanwhile, four online news portals had published a startling story alleging sexual harassment and severe abuse of power by Chief Justice Gogoi, prompting speculation that that the special bench would address that development.
The accusations, which can be accessed here, were made by a former Junior Court Assistant, and detail two incidents of alleged molestation and the victimisation that she and her family members suffered for her rejection of his advances, including loss of employment, arrest and torture in police custody. She was transferred thrice to different sections within the Supreme Court, subjected to disciplinary proceedings for objecting to the multiple transfers and for taking a casual leave on a Saturday, and finally dismissed from the Supreme Court on 21 December 2018, barely three months after Justice Gogoi took office as the CJI. By the end of that year, her husband and his brother, both of whom worked with the Delhi Police, were also suspended from their respective jobs.
Many of the details mentioned in her affidavit are accompanied by recordings, and incidents such as transfers, disciplinary proceedings etc. are easily verifiable from the records. A criminal case that was filed against her, allegedly as part of this intimidation and retribution, was due for hearing shortly, in which police were seeking cancellation of her bail. With her back against the wall, the complainant said, she sent copies of her sworn affidavit detailing this saga to the residences of several Supreme Court judges.
If these allegations are true, they point to a horrific story of sexual harassment and subsequent persecution and vendetta at the hands of no less than the Chief Justice of India while he was in office. One would think that this merits a serious investigation. However, the manner in which the CJI, his fellow Justices and senior law officers have reacted to these allegations has put paid to any hope of a serious, impartial inquiry.
No natural justice
Saturday’s special hearing violated every single principle of natural justice and due process: the accused presided over the proceedings, using the Supreme Court as his personal pulpit to character-assassinate his accuser; the other two judges were handpicked by him based not on seniority or affiliation with the court sexual harassment committee, but purely on personal preference; not a single woman judge was part of the bench; the complainant was not present or asked to be present, giving her no opportunity of being heard; senior law officers such as the Solicitor General and Attorney General who were present in Court did not think to advise the bench that this procedure was highly irregular and unlawful, but instead acted as cheerleaders of the Chief Justice, bemoaning this assault on judicial independence and accepting, at his word, that the allegations were false. They were clearly not unaware of the procedures under the Sexual Harassment Act, as they did (incorrectly) rely on one provision of it—the one requiring confidentiality, which they sought to use to shield the CJI. Yet, none of them thought to suggest that this matter should be taken up by an inquiry committee under the Act and the court’s own guidelines, instead of by the accused himself.
The coram did not reflect that the Chief Justice had been part of the proceedings at all, which is nothing short of a blatant lie, and the order, without explicitly saying so, strongly suggests that the media self-censor in reporting these allegations.
At no point did the CJI or anyone around him think it pertinent to address the details of the allegations. In fact, he said that to deny them would be to stoop too low for him. Instead, he vilified her character, referred to the police case against her as “evidence” of her unreliability, and resorted to piety and emotional arguments about his own character, including, bizarrely, about his bank balance. He portrayed these allegations, which were against him personally, as an attack on the judiciary, equating himself to an institution, and engaged in conspiracy theories about external forces wanting to destroy the judiciary.
As if these proceedings were not shameful enough, the order that was passed at their conclusion was no less shocking. The coram did not reflect that the Chief Justice had been part of the proceedings at all, which is nothing short of a blatant lie, and the order, without explicitly saying so, strongly suggests that the media self-censor in reporting these allegations. The chilling effect of such an order on free speech, particularly where the accountability of such a powerful official is in question, cannot be overstated. One senior lawyer has gone on record to term it an act of “judicial terrorism”, and it is difficult to disagree with that assessment.
So what could the court have done?
Despite the existence of a legislation protecting against sexual harassment at the workplace, as well as the Supreme Court’s own in-house procedure to deal with such complaints, this is not an easy question to answer. In its procedure for dealing with complaints against Supreme Court and High Court judges, the Chief Justice is in charge of implementing the procedure and granting permission to act on a complaint. There is no provision on how to deal with a complaint against the CJI, and there is no in-house panel comprising his subordinates who can fairly hear a complaint against him. In the present case, the complainant has sought a special committee of retired Supreme Court Judges to look into her allegations. The complaint ought to have been taken up by the court’s in-house committee, bypassing the requirement of the CJI’s permission in the circumstances, and ideally, the committee could have set up the special committee required in this case, with a majority of women and retired judges with no known familiarity with the accused, and the in-house committee extending a supporting role to the complainant to balance out the power equation. The Court’s Gender Sensitization Internal Complaints Committee needs to be empowered by the rules to act against the CJI in such cases, with external help if necessary, such as retired judges, and the rules must envisage and provide for a situation where the CJI himself is the accused.
Saturday’s proceedings also flew in the face of Justice Gogoi’s own policy on limiting the mentioning practice to urgent matters involving death penalty or immediate eviction, as well as the principled objections he was part of airing during last year’s controversial press conference. In that conference, he and three other judges expressed their displeasure at the misuse of then Chief Justice Dipak Misra’s powers of controlling the roster, and assigning cases to his preferred benches. Though the official letter circulated at the press conference in 2018 refrained from naming specific cases, informed speculation as well as a petition filed by Senior Advocate Shanti Bhushan pointed to a few instances, in particular, the politically sensitive cases of the 2G controversy, Judge Loya’s death, Sunanda Pushkar’s death, and a high-profile land acquisition case.
Guardians of democracy
The response of the legal community is the one heartening aspect of this sordid story. There are, of course, many lawyers, including senior counsel, who are too afraid to voice their objections to Saturday’s illegalities. But a few have done so on record, and the resolutions adopted by the Supreme Court Bar Association, the Supreme Court Advocates on Record Association, as well as petitions by Women in Criminal Law Association and other lawyers are a welcome departure from the usual reluctance among lawyers to criticise judicial conduct.
However, the less said about the country’s top law officers and office bearers of legal bodies the better. The Supreme Court Bar Association president (whose own association went against him today) participated in the hearing to show support to the CJI, and ludicrously claimed, as did the Bar Council of India chair, that they represent all lawyers in their obsequious attempts to curry favour with the judges. The Attorney General and Solicitor General seem to have forgotten that there exists something called separation of powers, demarcating clear boundaries between the executive and the judiciary. Their rush to defend the CJI is deeply troubling, for it gives the appearance of a possible quid pro quo between the government and the accused.
Guilty or not, process matters
Nobody is asking that people presume guilt or blindly believe the accuser. But objectivity demands that we take a stand on Saturday’s proceedings and make it clear that they have no place in a constitutional democracy. If there is any threat to the integrity of the judiciary, it is not from such allegations, but from within.