On Saturday morning, four news websites reported that a former employee of the Supreme Court of India had submitted a complaint of sexual harassment against Chief Justice of India Ranjan Gogoi to the other sitting judges with a detailed account of the harassing conduct as supported by her sworn affidavit and evidence (including audio-visual evidence).
Despite being on a five-day vacation, the Supreme Court of India website almost immediately put out a notice stating that a ‘Special Bench’ comprising the Chief Justice of India himself and two other judges was to assemble at 10:30 am in open court “to deal with a matter of great public importance touching upon the independence of the judiciary” on the mentioning by the Solicitor General.
It follows from news reports that at the hearing, the Chief Justice, speaking from the bench, proceeded to make several statements sullying the complainant; declaring her to be a criminal part of a bigger plot to deactivate the office of the CJI, and to make several statements that could only be aimed at gaining public sympathy for himself. This included invoking his 20 years of service, revealing his bank balance and predicting that such severe threats as this complaint would drive away good judges. The Attorney General and Solicitor General, both law officers of the Government of India, unequivocally took the side of the Chief Justice while bizarrely expressing their shared experience of being similarly under attack. In all this shared anguish between the senior officers of the judicial and executive branch, no representative of the complainant was heard, no qualms were felt in prejudging her case even before an inquiry, and no restraint was exercised so as to maintain her dignity.
This unprecedented emergency ‘hearing’ raises several important questions. First, how could the Chief Justice, as the person alleged to have perpetrated the sexual harassment, sit on a bench constituted to respond to a complaint against him? The rules of natural justice, which are foundational rules to ensure fairness of the judicial process, dictate that no man shall be a judge in his own cause.
As master of the roster, the Chief Justice has the sole power to decide the composition of a bench. In placing himself on this Special Bench, he reveals nothing short of complete disdain for any notion of fairness. The conspicuous absence of any women justices on this Special Bench is also contrary to the spirit of the POSH Act which requires that any body dealing with sexual harassment be chaired by a woman and comprise a majority of women members.
It is incomprehensible what purpose this Special Bench served except for allowing a person accused of sexual harassment to use his constitutional office and position of power to respond to personal allegations against him by communicating to the public through a judicial hearing. The course of action to be followed in such cases is clear in law. The ‘In House Procedure’ for dealing with cases of misconduct against judges, the POSH Act and the Supreme Court Sexual Harassment Regulations, 2013, all require for an inquiry committee to be set up to investigate and adjudicate allegations raised against any individual judge in cases of misconduct. While all of these regulations require action to be initiated by the Chief Justice, there is no reason for deeming the Chief Justice – who is first among equals – beyond the scope of any accountability procedure in place for judges of the Supreme Court. Why then was the matter dealt with on the judicial side through a Special Bench instead of referring the matter to the next senior-most judge for initiating an inquiry?
“It is incomprehensible what purpose this Special Bench served except for allowing a person accused of sexual harassment to use his constitutional office and position of power to respond to personal allegations against him by communicating to the public through a judicial hearing”
The invocation of judicial independence to deflect the allegations is both disingenuous and dangerous. Judicial independence cannot mean that no complaints of misconduct can ever be made against a specific individual justice of the court. Any concerns about judicial independence are addressed by the In-House Procedure which requires that a complaint be examined by the peers of the respondent Judge to safeguard judicial independence while also “preserve the faith of the people in the independence and impartiality of the judicial process” by ensuring that members of the higher judiciary are held accountable for their actions. In the past, the Supreme Court has adjudicated upon instances and allegations of sexual harassment by sitting/retired Judges, without ever branding it as an attack on judicial independence. In the instance of one particular retired judge, the Supreme Court fact-finding committee found that the allegations of sexual harassment were prima facie made out. In sidestepping the inquiry procedure, the Chief Justice unfortunately signals that he is above the law – and the Attorney General, Solicitor General and other senior members of the Bar appear to support that position.
The hearing reportedly ended with the passing of an order. This was egregiously not signed by all three presiding members of the bench, but only by the other two judges and without including the Chief Justice in the ‘coram’ or any mention of the fact that the Chief Justice was present on the bench and extensively participated from the bench. Such inaccuracy in the record of proceeding, in any other situation, would invite severe reprimand by the Court. The order observes as follows:
“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 the independence of the judiciary. We would therefore at this juncture leave it to the media to take off such material which is undesirable.”
The deeming of the detailed allegations as wild and scandalous even before any inquiry has even begun already tips the scales of justice heavily against the complainant and reveals that even after the #MeToo movement has arrived in India, the keepers of justice still find it hard to treat sexual harassment as a serious issue.
“In the face of growing disillusionment by the events on Saturday, an immediate inquiry by a neutral and impartial committee is necessary to recover faith in the integrity and ability of the Supreme Court as an institution to deliver justice.”
The glaring departures from procedure in the handling of this complaint did not stop the Bar Council of India and other Bar Associations from vilifying the complainant and declaring their allegiance to the Chief Justice of India at this preliminary stage. For women in the legal profession, it can hardly be surprising that the men’s club has closed ranks to insulate a powerful man faced with allegations of sexual harassment. Nevertheless, it is a cruel reminder that women in the profession have a long way to go before we can expect equal respect and dignity from our senior male peers. In the face of growing disillusionment by the events on Saturday, an immediate inquiry by a neutral and impartial committee is necessary to recover faith in the integrity and ability of the Supreme Court as an institution to deliver justice.
The writer, a Delhi-based Advocate, is a member of the Women in Criminal Law Association, which released a statement questioning the handling of the complaint.