The CJI Sexual Harassment Case — Who Will Guard the Guards Themselves?
By Khushi Agarwal
This article primarily looks at the manner in which the allegations of sexual harassment against the Chief Justice of India were handled and later dismissed by the Supreme Court. While discussing the various loopholes in the existing system and the procedural violations that took place in the instant case, it seeks to suggest ways in which the allegations should have been handled to ensure that the judicial accountability is not compromised on which rests the reputation of the ‘Hon’ble’ Courts.
Roman satirist and poet Juvenal in the first century AD had raised an important question, ‘quis custodiet ipsos custodes’ or ‘who will guard the guards themselves?’ In 2019, the history, morality, traditions, and verdicts of the apex judicial institution of our country were shaken to the core when His Excellency Ranjan Gogoi, the then Chief Justice of India (CJI), was accused of molesting and persecuting a former Supreme Court employee. The issue is thus, how should we judge the judges?
The allegations by the complainant were sent in affidavits to all SC Judges. And for the first time in the history of the Supreme Court, a sitting CJI faced an inquiry by an in-house Committee.
The Supreme Court is meant to be the saviour of the rights of all citizens. However, how the allegations were handled and later dismissed by the Court, presented a textbook example of how not to deal with such complaints against senior and powerful constitutional functionaries.
The blatant ignorance of the principles of natural justice, the ideals enshrined in the Constitution, and the guidelines of concerned legislations along with serious procedural violations invited criticism from several quarters of the legal community and the general masses as well.
Although many preferred not to talk about this grave institutional failure — perhaps out of their love and reverence for the Hon’ble Court’. But the fact remains that although the culture of mutually-accepted and mutually-acceptable silence may provide a momentary sense of contentment, it will not lead to truth and reconciliation. The Court used the immense power vested in it by the Constitution to emerge unscathed by controlling the narrative and reinstated the belief that imbalances of power, due process, and basic norms of justice simply do not matter when it comes to one of its own.
The Background
On April 19, 2019, a woman formerly employed as a Junior Court Assistant at Supreme Court of India and later at the Residence Office of the CJI, in an affidavit sent out to all 22 Supreme Court judges alleged that CJI Gogoi had made unwelcome sexual advances towards her on October 10 and 11, 2018.
She further complained that owing to her resistance towards these advances, she had to face administrative transfers and was eventually dismissed. She also accused that the CJI was persecuting her family as well, and had caused the suspension of her husband and brother-in-law, both of whom were head constables, from service of the Delhi Police. Supporting these allegations with purported evidence, she called for the initiation of an inquiry against CJI Gogoi.
The story was picked up immediately by sites like The Wire, Caravan, and Scroll which published the contents of the affidavit. The SC convened an urgent hearing at Court №1, on a non-working day, with a bench composition of CJI Ranjan Gogoi, Justice Arun Mishra, and Justice Sanjiv Khanna. According to the notice by the registry Shri Tushar Mehta, the Solicitor General of India, mentioned the matter to be of ‘Great Public Importance Touching upon the Independence of the Judiciary’.
During the hearing, the CJI denied the allegations and spoke extempore, calling them “unbelievable” and part of a conspiracy by some “bigger force” to “deactivate” the CJI’s office. The Attorney General and the Solicitor General, present at the session, also expressed their solidarity with the CJI.
The complainant, in her absence, was defamed and her motives questioned. Thus, an allegation of sexual harassment was turned into a matter of judicial independence.
After the session, the Court passed an order (signed only by Justices Mishra and Khanna, with the suspicious omission of CJI Gogoi), advising the media to exercise “restraint”. The record of proceedings also did not feature CJI Gogoi’s name in the Coram.
The In- House Inquiry Committee and the Clean Chit
On April 23, the CJI himself constituted a three-judge Inquiry Committee comprising Justices S.A. Bobde, N.V. Ramana, and Indira Banerjee to probe into the allegations made against him. The next day, in a letter to Justice Bobde, the complainant expressed her objections to the inclusion of Justice Ramana in the panel due to the close relations between the CJI and Justice Ramana. Moreover, due to the suo moto proceedings on April 20 in her absence, she was worried her complaint was being treated as false by the Hon’ble Judges without even hearing her.
Following the apprehensions raised by the woman, on April 25, Justice Ramana recused himself from the panel, and Justice Indu Malhotra was appointed in his place. The panel also issued a notice to the complainant to appear before it on April 26. However, on April 30, after appearing before the Committee for the third time, she withdrew from the proceedings due to multiple factors.
Nonetheless, on May 1, the Committee decided to proceed ex-parte, even though Justice D.Y. Chandrachud, one of the sitting SC judges, had pleaded with the panel not to do so. Even Attorney General K.K. Venugopal’s suggestion to include an external member on the panel was brushed aside.
Following summons, CJI Gogoi was deposed who denied the allegations. Finally, on May 6, the SC Secretary-General declared that the in-house Committee has concluded that there is no substance in the allegations levelled against the CJI and has therefore given a clean chit to him in the matter. The contents of the report, however, were not made public citing the judgment in Indira Jaising v. Supreme Court of India and Anr.
Questions Left Unanswered
In the past seventy years of independence, the law on harassment in the country has taken slow strides with a few monumental steps in the form of Vishaka Guidelines in 1997 and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. However, in this case, the instant method of inquiry and the subsequent verdict raised some serious questions, from the legality of the Committee to the way it decided to proceed, proving that the battle against harassment is far from over:
Should an in-house Inquiry Committee against any Supreme Court judge consist of sitting judges or retired judges?
Under the well-established principle of natural justice, nemo debet esse judex in causa propria sua, no one should be made a judge in his own cause. It is the minimal demand of natural justice that the authority tasked with deciding the matter should be composed of impartial persons acting fairly, without prejudice and bias.
Thus, serious allegations against any sitting judge must not be inquired into by sitting judges of the same court. How can judges inquire into allegations against a colleague, no less the CJI, who is the “master of roster” assigning cases to fellow judges and, most significantly, the highest judicial authority in the country, wielding a colossal quantity of power and influence?
What is the relevance of the 2003 Indira Jaising judgement? Why should a report not be made known to the public?
As mentioned, the report of the In-House Committee was not made public. Although a copy of the Report was given to the CJI and the judge next in seniority (Justice Arun Mishra), however the same was not provided to the complainant. The justification in the judgement was that the action taken by the Supreme Court in ordering an inquiry is not in the exercise of powers under any law but the inquiry was for “moral and ethical reasons.”
Although the inquiry reports of such committees are not covered under the ambit of the Right to Information Act, 2005 to safeguard the identity of the aggrieved woman, a statutory right should be provided to the complainant. She had a right to know what process was adopted and how did the Committee arrive at its decision.
Moreover, in the given case, when the numerous allegations made by the complainant were available in the public domain, making the report public would have restored the confidence of the citizens. It could have shown that the proper procedure has been followed while arriving at a particular conclusion and that the judges, like ordinary citizens, are subject to the same rule of law and any act of misconduct will not be spared.
In cases of sexual harassment, should the complainant be denied legal representation or other suitable assistance, and should the inquiry committee proceed with the process even in the absence of the complainant?
Accusations were made by the victim that she was defamed in her absence in the urgent hearing convened by the SC on 20th April. Even the In-House Committee did not provide the complainant with the right of a fair opportunity of being heard when it decided to proceed ex-parte and a support person since she was suffering from hearing impairment.
All these instances violate the principle of ‘audi alteram partem’, that is, ‘hear the other side’. The panel could have addressed the objections raised by the complainant and may have appointed an amicus curiae so that her interests are put forth even when she decided to withdraw. Thus, even though the decision given by the Committee is legally valid, it erodes the legitimacy of the decision since the independence of the judiciary rests upon public trust, and public trust is cannot be maintained by one-sided inquiries.
The Way Forward
“Justice should not only be done but manifestly and undoubtedly be seen to be done”- This oft-quoted aphorism by Lord Chief Justice Hewarts is one of the several principles that form the bedrock of the Indian judicial system.
With the sentinel guarding the Judiciary accused of a serious offence, these principles directly came under the radar of public scrutiny. Gradually, a fight between two individuals, i.e., the complainant and the accused, converted into a struggle between the citizens and the institution. Thus, even if the then-CJI is innocent as the in-house Committee declared him to be, he showed great incompetence in following the basic principles of natural justice. Steps need to be taken to protect the Supreme Court’s sanctity.
- Instead of the Ad-Hoc mechanism, the principles of equality before the law and due process of law should be applied irrespective of the authority a person enjoys. A dedicated separate procedure should be established for dealing with complaints alleging criminal misconduct against a judge of the constitutional court or even the CJI.
- The panel instituted to enquire about the allegations against any sitting judge should be constituted of retired judges of the Supreme Court and should be answerable directly to the President to ensure procedural fairness in the proceedings by removing any chances of personal bias or prejudice.
- A senior female lawyer from the SC Bar should be made amicus curiae to guide the procedure to the complainant. A retired woman judge should be included as an external member of the panel to provide legal assistance to the complainant if the latter demands so.
- Under any circumstances, the inquiry panel should not proceed in the absence of the complainant.
It needs to be said that this is not an article about innocence or guilt but rather about the preconditions necessary to ensure that questions of innocence or guilt can be answered adequately. Because an independent judiciary is a leitmotif that protects constitutional values and it is the faith of the citizens in the judiciary which in turn reaffirms the faith in democracy. Thus, even an impression that the basic principles are being compromised can seriously damage public trust and confidence on which rests the reputation of the ‘Hon’ble’ High Courts and the ‘Hon’ble’ Supreme Court.
(This story has been written by Khushi Agarwal, B.A.LL.B student, ILS Law College, Pune. She is a second-year B.A.LL.B. student at ILS Law College. Her research interests include contemporary socio-legal conflicts at the domestic and international levels, and she wishes to specialize in the spheres of antitrust law and dispute resolution.)
