Breach of public trust

On May 6, the Panel of Judges appointed by Justice S.A. Bobde of the Supreme Court exonerated Chief Justice Ranjan Gogoi of all allegations of sexual harassment levelled by an ex-employee of the Supreme Court and found 'no substance' in the woman's complaint. The Committee comprised of Justice S.A. Bobde, Justice Indu Malhotra and Justice Indira Bannerjee, submitted its report to Supreme Court. However, astonishingly, the Committee did not give a copy of the report to the Complainant, citing an old case of Indira Jaising v. Supreme Court of India (2003) 5 SCC 494, wherein it was held that report of Committee constituted as part of the In-House Procedure, is not liable to be made public. But the same Committee thought it fit to give a copy of the report to the Chief Justice, against whom allegations of sexual harassment was made. Thus, curtains came down on the first part of the bizarre Kafkaesque drama that unfolded before the public in the last two weeks.

On April 19 this year, the complainant, a 35-year-old ex-employee of the Supreme Court, sent an affidavit to 22 Judges of the Supreme Court complaining of sexual harassment and gross victimisation of her entire family at the hands of the Chief Justice Ranjan Gogoi. It was a detailed affidavit, with 22 Annexures, including video recordings as well as referring to lots of witnesses. On April 20, in an unprecedented way, the Chief Justice set up a special bench comprising himself, Justice Arun Mishra and Justice Sanjiv Khanna, and lambasted the complainant, calling her names, casting aspersions on her credibility, citing 'criminal antecedents', and saying this was a 'threat to judicial independence'. Though Chief Justice Gogoi sat on the bench, he did not sign the order passed that day, which was signed only by the other two judges, and was completely illegal in nature. Besides, the said hearing violated all the procedures known to law, including no one should be condemned without being heard, and one cannot be a judge in one's own cause. Chief Justice Gogoi's action of setting up the bench and seeking to destoy the complainant's credibility was condemned by all, including the Supreme Court Bar Association, and the Supreme Court Advocates on Record Association. However, the drama had actually just begun.

Owing to widespread criticism of how the complaint was initially handled, the second senior-most judge, Justice S.A. Bobde, was asked to handle the issue. On April 23, Justice Bobde constituted a committee of himself, Justice N.V. Ramanna, and Justice Indira Banerjee to look into the allegations, but there was no clarity on the procedure to be followed. If it were a committee formed in accordance with the In-House procedure, then whether it has jurisdiction over the Chief Justice of India was a question. If it were committee under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, then it has to follow all the rules laid down therein, including the Presiding person to be a woman. Further, the Complainant objected to the inclusion of Justice Ramanna, owing to his proximity to the Chief Justice, and Justice Ramanna justifiably recused himself, and Justice Indu Malhotra was inducted. It was hoped that with two women judges, the complaint would be handled in a sensitive and victim-friendly manner.

However, the Committee failed to follow any procedural safeguards required in a sexual harassment enquiry. The Complainant was not allowed to bring a lawyer or a support friend, despite the fact that the allegations were made against the Chief Justice of India, and the Committee Judges were all junior to him. Further, the Complainant stated that the stress of last 6 months had a severe impact on her physical and mental health, resulting in loss of hearing in one ear, and she could not hear the judges properly and need a support person. Both her requests were denied, and she was constantly asked why she took so long to make the complaint. The Complainant realised that the Committee was not working towards securing justice to her, but to save the Chief Justice, and accordingly, she decided to withdraw from the proceedings on April 30, 2019. Unfazed, the Committee proceeded ex-parte, and continued with its 'enquiry', which resulted in the 'clean chit' on.

It also believed that not all judges agreed with this complete violation of substantive and procedural due process. On May 2, Justice D.Y. Chandrachud is believed to have written to Justice S.A. Bobde that the Committee should not proceed with its enquiry in the absence of the Complainant, and should accept the Complainant's request for a lawyer to be present or appoint an amicus in the case. It is still a solace to see one judge speaking out in the face of a judicial massacre of the principles of natural justice. The crisis that is plaguing the judiciary since last few years and reached enormous heights resulting in the press conference by four judges on January 12, 2018 has now totally engulfed the Apex Court. The present case has shown that the judiciary is now operating outside the bounds of the Constitution, and in complete cohorts with a majoritarian Executive. If the judges of Supreme Court act in a manner prejudicial to the rule of law and principles of justice then what hope does a common citizen have? Most important, this case has come to light few months after the #MeToo movement took place in India, and honest discussions on sexual harassment at the workplace started happening. What message the Supreme Court is sending out to the other powerful men in different places? That they can sexually harass with impunity? That law cannot touch the high and mighty? If the Supreme Court judges can violate each and every tenet of its own landmark judgment in Vishaka v. State of Rajasthan (1997) and the SHW Act, then why expect the Internal Complaint Committees in other workplaces to function better.

As it is often said, the Supreme Court functions on the basis of the public trust in the judiciary. That trust is now almost broken. If the Court as an institution does not wake up now and rebuild the trust by conducting a fair and independent enquiry into the Complainant's case, there will be no public left to do justice for.

(Views expressed are strictly personal)