On 20th April, a sworn affidavit was sent to twenty –two judges of the Supreme Court. In this affidavit, a former employee at the Supreme Court (“the complainant) accused the sitting Chief Justice of India – CJI Ranjan Gogoi – of having subjected her to prolonged and systemic sexual harassment, and of having victimized her family through the police. That same day, four news portals – Caravan, The Wire, Scroll and Leaflet – sent a series of queries about the issue to the Supreme Court, and received a strenuous denial from the secretary –general. The four news portals published their reports on the issue, which involved both scientific testimony, and audio-visual evidence.
However, was an object lesson in how not to deal with complaints of sexual harassment against senior and powerful constitutional functionaries. The Chief Justice – who had previously said that he would entertain “urgent hearings” unless someone was being hanged or evicted from their house- constituted a “special bench” consisting of himself and two other judges of he court. The matter was ‘mentioned” by the solicitor-general, and the attorney –general – the highest law officer in the country- was also present.
The petition- dramatically named “In Re: Matter of Great Public Importance Touching Upon the Independence of the Judiciary” – was taken up. From his pulpit, the chief justice proclaimed his innocence. He suggested that this was an organized conspiracy to undermine the independence of Judiciary. The AG and SG agreed. They then proceeded to launch a character assassination of the complainant, discussing her criminal antecedents. At the end of al this, an order was passed clarifying that “at this juncture”, it would be left to the media to “show restraint and act responsibly”. Astonishingly, the order was signed only by two judges – Justice Arun Mishra and Sanjiv Khanna. The chief Justice , it seemed – to borrow a phrase recently popularized elsewhere – “had been present but not involved.”
Saturday morning’s hearing presents a deeply disturbing spectacle of a bench of the highest court in the land riding roughshod over basic principles due process, and what is worse- setting a terrible precedent in dealing with sexual harassment complaints against the judges. There was a way to deal with this: the senior –most judge of the Supreme Court after the Chief Justice could have taken cognizance of the complaint, set up an independent internal complaints committee in accordance with existing law, and ensured that committee was allowed to work free of fear or favor, and in a swift manner.
Instead, what we got a spectacle fit for a kangaroo court: the CJI , an accused of sexual harassment, used his constitutional office to proclaim his own innocence . He summoned to his support another constitutional functionary- the country’s highest law officer. During the course of this highly irregular “hearing”- where the complainant was not even represented – the case was prejudged, a conspiracy was proclaimed, and the independence of the judiciary was invoked as a shield against accountability. In the space of a few minutes, every principle of natural justice- starting with ‘no person shall be a judge in their own cause” – was flagrantly violated . In fact, the chief justice’s bizarre refusal to sign the order only demonstrates the irregularity of this entire process from start to finish.
The consequences, however, are not merely institutional. Sexual harassment is often characterized by the power imbalance between the complainant and the accused. Procedures to ensure justice, therefore, are geared towards negating this power imbalance through a range of measures( for example, anonymity, in camera hearings, (occasional)restrictions upon cross examination, and so on ). What the CJI and his bench – along with the AG and the SG- did today, however, was to accentuate the already-existing power imbalance by a very public denunciation of the complainant and her motivations. This makes the prospect of a fair process remote at best, and farcical at worst.
Commenting upon the notorious habeas Corpus case, the great constitutional lawyer H M Seervai wrote that “ordinary men and women would understand Satan saying ‘ Evil be thou my Good’, but they were bewildered and perplexed to be told by learned judges of the Supreme Court [that] ‘lawlessness be thou our law.”