A travesty of justice

Judiciary in Crisis

Allegations of sexual harassment levelled against the Chief Justice of India Ranjan Gogoi by a former employee of the Supreme Court stunned the nation. People are more shocked than surprised, not just because the allegations are against one of the highest constitutional functionaries and head of the country’s judiciary, but also due to their obnoxious nature.

In an unusual hearing last month, Justice Gogoi described these allegations as ‘unbelievable’ and declared his innocence in open court without the complainant being present. He further went on to say that the independence of the judiciary was under serious threat as some “bigger forces” wanted to “deactivate” the CJI’s office, without naming what or who these forces were.

By and large, people have faith in the judiciary, especially the higher courts. That it is among one of the most trusted institutions in the country is borne out by various surveys. However, lately, that trust has come under strain and the just concluded in-house inquiry into sexual harassment charges against the CJI did little to address it.

From the very outset the allegations against him were not handled properly. A day after the charges were made public, a three-judge SC bench comprising the CJI himself had a suo motu hearing on the allegations. When this was met with widespread criticism, a three-member ad hoc committee, headed by Justice S Bobde, was constituted to probe the matter.

The informal panel failed to follow the fair procedure and maintain transparency throughout its working. It conducted the proceedings even after the complainant refused to appear before it, alleging intimidation and not being allowed to be represented by a lawyer during the course of the hearing.

To make matters worse, the in-house committee completed the proceedings ex parte, giving a clean chit to the CJI, and refused to make its findings public, citing a 2003 judgement of the court. No one else, not even the complainant, knows what evidence was examined and who else testified apart from herself. All that is known is that she was heard, and questioned, at two sittings before she pulled out of the probe. Moreover, the panel’s report cannot be reviewed judicially.

The learned judges know better than anyone else that justice can only be delivered, or at least seen to have been delivered, after giving a fair hearing to all parties, which in the instant case didn’t happen. Hence, the complainant has every right to feel aggrieved when her case has not been investigated with any sense of impartiality by the country’s highest court. Instances like this can potentially shake people’s faith even in the entire democratic order, leave alone the judiciary.

The most relevant parts of the complaint were the transfer orders and disciplinary inquiry against her, the role of the court administration in dismissing her, and that of the Delhi Police in arresting her on a complaint of alleged bribery and initiating disciplinary action against her husband and his brother, both Delhi police personnel. It is not known if any of these officials were examined. It will not be wrong to say that the manner in which the court dealt with the complaint on the administrative side has been less than fair.

The fact that a special law to deal with sexual harassment at the workplace is in force since 2013 seems to have made little or no difference in this case. The highest court of the land is a workplace and the rules applicable to other workplaces should also operate here, too.

A committee of three SC judges who ultimately report to the CJI cannot be said to fulfill the requirement of neutrality implied by those rules. There may be nothing substantial in her complaint, but the imbalance of power during the process of hearing it went against equity, justice and fair play.

Matter of reputation

Notwithstanding the clean chit given to the CJI, the controversy surrounding the unprecedented allegations refuses to die down. Hardly has a day passed since the controversial finding was announced without more fuel being added to a fire which, eventually, must singe the court’s reputation itself.

Women lawyers who turned up outside SC and shouted slogans of “supreme injustice” were detained by the police. Bar leaders are divided on the contentious issue. And the government’s top law officer KK Venugopal, too, in his personal capacity recommended an inquiry by eminent former judges, not three subordinates of the CJI.

The fact that he has found it necessary to clarify his position only reflects the dismay among sections of the legal fraternity at the seemingly one-sided procedure evolved by the CJI for dealing with a case against himself which seems to run counter to the principles of natural justice.

What the ultimate outcome will be is difficult to say at the moment. It is unlikely that the pressure will ease. After the #MeToo movement attracted global support, the judicial leadership ought to have been more sensitive to a women’s issue. It was expected to break the stereotypical attitude of a male-dominated hierarchy but wound up reinforcing the same even if two women judges were part of the probe trio. The non-disclosure of the panel’s findings only enhances the ‘enigma’. The image of the highest court has sadly been sullied by the refusal to ensure due process to the complainant in an alleged case of sexual misconduct.

The apex court is in deep crisis. Its very credibility as an ‘honourable institution’ is at stake. Merely following its self-devised, shaky “in-house procedure” in a case is not going to suffice where the CJI’s personal conduct has been questioned. Instead, it needs to follow a more credible and efficacious mechanism that should satisfy reasonable standards of “due process” to meet the ends of justice. Not only must justice be done, it must also be seen to be done. Who knows this adage better than “my lords” themselves?

(The writer is an advocate, Supreme Court)