India’s highest judicial body, the guardian of the
Constitution, and protector of last resort for the people, is guilty of conduct
unbecoming of its legacy. On April 19, a former junior clerk of the court sent
an affidavit to 22 judges alleging
sexual harassment at the hands of Chief Justice of India (CJI) Ranjan Gogoi at
his residence-office on two occasions in October 2018. The complainant said
that following the incident she was wrongfully dismissed from service, and that
her family faced vindictive retribution subsequently. The lengthy affidavit
contains a detailed description of the chain of events, transcripts of
messages, as well as video clips and voice recordings, make charges that are
grave. The way judges of the Supreme Court and the chief justice in particular
dealt with the matter is a new judicial low and does nothing for the reputation
of the Court.
The chief justice constituted a special bench “In re: A matter of grave public importance touching upon the independence of the judiciary”. The bench comprised Justices Arun Mishra and Sanjiv Khanna and—in a spectacular negation of principles of natural justice—CJI Gogoi himself. Tushar Mehta, solicitor general, the second senior most law officer of the government, “mentioned” the matter before the bench. The attorney general was present. Gogoi, speaking from the pulpit, went on a rant which focused on his humble bank balance—a fact that has no connection with the charges against him. He referred to an anonymous “they” who wanted to “deactivate the office of CJI”. He presented no evidence to support his claims. He then shredded the credibility of the complainant, in a proceeding where the woman in question was neither present nor represented. His brother judges agreed, Mehta wasted no time in seeking permission to bring a contempt petition against the media outlets that first reported the story. All in all, it was a well played farce. The order of the court—asking the media for restraint—is not signed by the chief justice in a curious omission even though he was a part of the bench and set the agenda with his remarks. It is deceptive at best, for it seeks to give the impression that the CJI was not a judge in his own case. Another remarkable thing is the great keenness shown by the government through its law officers to bat for the CJI.
Sexual harassment cases, especially where the power imbalance between parties is unbridgeable, are a test of the redressal process and the finality of the application of laws. A fair and reasonable hearing is the complainant’s right. The Supreme Court had an opportunity to do the right thing: set up a committee to enquire and not impute motive or defame the complainant, and chief justice Gogoi should have stayed out of this process. It is regrettable that this did not happen, or that the CJI—a first among equals—was allowed to subvert the process.
What followed is even more extraordinary. An allegation against the CJI became an attack on the “independence of judiciary” based on nothing more than a hunch. A bench of Justices Arun Mehta, Deepak Gupta and Rohinton Nariman is now hearing matters based on hearsay. A lawyer appeared later claiming that the complaint against the CJI was a part of a conspiracy and submitted his affidavit in a sealed cover. Based on this judges summoned CBI and IB officials and an investigation is now underway on grounds that the judges deem the public has no right to know.
The growing trend of “sealed cover” jurisprudence, championed enthusiastically by chief justice Gogoi, is worrying. Open court is the rule and norm in India, justice based on secret information is patently undemocratic, especially in matters of public importance dealing with fundamental rights, like the NRC case from Assam. The sealed cover route is employed without consistency or respect for precedence. Often there no reasons laid out in an order for taking such recourse.
Parallel to the “matter of great public importance”, Justice S. A. Bobde, next in line for chief justice, is heading an internal committee to probe the complaint against Gogoi. The Supreme Court has two parallel proceedings going on here: one assumes that the complaint is a plot to compromise the judiciary; and the other will examine the truthfulness of charges against the CJI. For the first there is no evidence yet, and for the second there is a slim chance of truth seeing the light of day.