Who will Judge the Judges?

A special feature on the controversial allegations against the CJI

Amidst the political din in the wake of elections and several high-profile cases lugging before the apex court, things seem to be getting murkier by the day.

The allegations: On Friday, April 19, a former employee of the Supreme Court, in an affidavit addressed to 22 judges of the court alleged sexual harassment at the hands of Chief Justice of India at his residence office on October 10 and 11, 2018. She requested the Hon’ble Judges of the Supreme Court to constitute a special enquiry committee of senior retired judges of the Hon’ble Supreme Court to enquire into these charges of sexual harassment and consequent victimization.

The Special Bench: The Supreme Court took suomotu cognizance of the affidavit treating it as a writ petition and next morning a Supreme Court notice announced that the court had exercised its inherent jurisdiction and constituted a special bench of judges (not senior most but handpicked by the CJI) to hear a matter of great public importance touching upon the independence of the judiciary. The bench comprising Justices Arun Mishra and Sanjeev Khanna was headed by Justice Gogoi himself, who after harping on bigger forces behind the allegations, said that he did not want to stoop so low as to answer these charges. Dismissing charges of sexual harassment against him, Justice Gogoi hinted at a bigger conspiracy intending to destabilise the CJI considering the important cases coming up for hearing next week in the wake of elections. He later recused himself when it came to passing orders in the case. Soon after that, the secretary-general of the Supreme Court, in response to queries from reporters, issued a statement denying the incident. He said “The allegations regarding 11 October 2018, as well as other allegations as can be discerned from your emails, are completely and absolutely false and scurrilous and are totally denied.”

Disregard of Principles of Natural Justice: Merits of the case apart, the manner in which the bench was constituted with the accused himself at the helm, leaves much to be desired. Nemo judex in causa sua, a Latin phrase meaning "no-one should be a judge in his own case" is one of the cardinal principles of natural justice, the disregard of which renders the proceedings invalid. Fairness is the cornerstone of justice and it must be apparent that there was no influence on, or interest of, those who were judging. This is necessary because, in order to inspire confidence, any action taken must not only be just but must also appear to be just to all concerned.

Another principle of Natural justice, Audi Alteram Partem which means hear the other side was also totally disregarded. The complainant was not served a notice to attend the proceedings, where she was lambasted in absentia. Here it is pertinent to mention that, the earlier departmental enquiry against her which resulted in her dismissal, was also conducted in a similar fashion.  She couldn’t attend the proceedings owing to a medical emergency, but the Registrar who was leading the enquiry continued with the proceedings in her absence and she was denied an opportunity to explain her side of the case.

Contrary to the SC notification proclaiming the constitution of special bench to look into a matter of public importance touching upon the independence of judiciary, the allegations were against one particular individual and not the institution itself and what was complained against was the act of an individual in his personal capacity. The complaint nowhere points towards the conduct of the lordship in his judicial capacity.

Panel to look into allegations: On Tuesday the Supreme Court appointed Justice Bobde the, second senior most judge of the SC to look into allegations of sexual misconduct against Justice Gogoi, the CJI. Justice Bobde has formed a panel consisting of two senior most judges and one female judge to conduct an ‘in-house’ enquiry into the allegations. The bench has issued a notice to the woman requiring her to be present before the bench on Friday the 26th of April. The complainant, on her part has expressed reservations about the fairness of the panel. According to her, one of the judges on the panel is very close to the CJI, almost like a family member. The Secretary General of the Supreme Court has also been asked to be prepared with relevant material.

Counter-allegations: In the meantime, an advocate posted on facebook and also filed an affidavit before the apex court alleging conspiracy against the CJI by a lobby of disgruntled judges, SC fixers, corporate scamsters and few corrupt politicians- all who have meticulously planned the conspiracy to force the CJI to resign. The reconstituted special bench is now looking into the claims of this advocate. Since he was not present in the Court on tuesday, the hearing was deferred to wednesday when he submitted the requisite evidence in a sealed cover containing some documents and a CCTV footage to the court. His Facebook post seems to have stirred a hornet’s nest with people asking the lawyer to disclose names of the disgruntled judges and SC fixers, all of which are of grave significations. But now he seems to have changed his mind as the affidavit submitted by him before the apex court makes no mention about the lobby of judges. He admitted that he is scared for his life and also fears persecution at the hands of those judges, if he was to disclose their identities.  The Bench said that the matter raised serious issues about the independence of judiciary and acknowledged the necessity of constituting a SIT to probe into the details. The court also called for a meeting of IB chief, CBI Director and the Delhi Police Commissioner to seek assistance in uncovering the truth in this case.

GSICC: There is a Gender Sensitization and Internal Complaints Committee in the Supreme Court that has been duly constituted in accordance with its own guidelines in Vishakha (1997) later adapted into the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. All the court officials and employees excepting judges are within its purview. It is disturbing that; the lordships are not governed by the same rules that apply to the others. There is a growing dissent among the lawyer community, academics and the civil society over the constitution of the panel. They want an independent committee on the lines of the Sexual Harassment Act to probe the issue independently. Putting judges on a pedestal, and having special rules for them, is no solution, the only way is the maintenance of rectitude by the judges, both on as well as off the dais.

In-house Procedure:The ‘in-house’ procedure prescribed to examine allegations levelled against sitting Judges of High Courts, Chief Justices of High Courts and Judges of the Supreme Court of India includes an investigative process that" takes into consideration the rights of the complainant, and that of the concerned judge, by adopting a fair procedure, to determine the veracity of allegations levelled against a sitting Judge. At the same time, it safeguards the integrity of the judicial institution. In 1990’s the Supreme Court had appointed a committee consisting of three Supreme Court judges and two senior-most Chief Justices of High Courts, to lay down the “in-house procedure”, for taking suitable remedial action against judges, who by their acts of omission or commission, do not follow the accepted values of judicial life, including the ideals expressed by the Supreme Court in the “Restatement of Values of Judicial Life.” The committee drew heavily from the SC judgment rendered in Ravichandran Iyer v. Justice A.M. Bhattacharjee &Ors.(1995). A report was submitted by this committee which was finally adopted with certain amendments, in December 1999 by the Supreme Court in a Full Court Meeting. In Additional District and Sessions Judge ‘X’ v.  Registrar General, High Court of Madhya Pradesh(2014), the court had stated that, “In order to ensure, that the investigative process is fair and just, it is imperative to divest the concerned judge (against whom allegations have been levelled), of his administrative and supervisory authority and control over witnesses, to be produced either on behalf of the complainant, or on behalf of the concerned judge himself. The accused ought not to be associated with the ‘in-house procedure’. In cases where the Chief justice of a High Court is accused then the Chief Justice of India may reinitiate the investigative process, under the ‘in-house procedure’ by vesting the authority required to be discharged by the Chief Justice of the concerned High Court, to a Chief Justice of some other High Court. Or, alternatively, he may himself assume the said role.”  It is unfortunate that we do not have clear guidelines on who is to conduct inquiry when allegations are against the CJI himself. In K. Veeraswamiv. Union Of India and Others (1991),it was observed by a constitution bench that, “In the case of the Chief justice of the Supreme Court, the  President shall consult such of the Judges of  the Supreme  Court as he may deem fit and proper and shall act  in accordance  with  the advice given to him by  the  Judge  or Judges of the Supreme Court.”

# MeToo: This case, once again, puts the spotlight on the ubiquity of sexual harassment. Since allegations and counter allegations are flying thick and fast, the issue of women’s employability in courts has itself been mired in controversy. There is a lobby rallying for removal of women officials working at residences of judges. There are others who are against employment of women altogether. People are skeptical of the oblique motives whenever a woman chooses to go public with her story. Actually, the # Me Too movement highlights the collective anguish of women due to which, women took to the social media to share their experiences publicly thereby naming and shaming the offenders. It is all about the disillusionment of women with the justice delivery mechanism. The procedure, which is highly technical and formalistic is a punishment in itself.  “Me too” is a movement to express solidarity with other victims and leverage collective empathy for institutional as well as non-institutional reforms. Here the question is not about whether the medium adopted is right or wrong. The bottom line is that women have lost faith in the due process and have resorted to collective action which is preventive rather than being curative in nature. When you come across such instances where the high and mighty thwart the due process to suit themselves, one cannot help but agree more with the # me too crusaders.

Without going into the merits or demerits of the allegations, it is difficult to refrain from commenting upon the manner the special bench was constituted on a non-working day and in utter disregard of the due process. All this clearly indicates that the rule of law has been circumvented by those who are supposed to uphold it. Now the dilemma is, who will judge the judges? The courts have always displayed a reluctance while dealing with their ilk. The judiciary has come under a lot of flak for its initial handling of the case, although later on suitable amends were made.  In the present case, the special bench has requested the media to exercise restraint in this matter.

The way ahead: CJI, the office as well as its incumbent are held in high esteem. These allegations have put Justice Gogoi in a precarious situation. He has been a man of impeccable integrity throughout his long and illustrious career. The committee has a momentous task on its hands. It is the first time in the Indian Judicial history, that the sitting CJI has been accused of misconduct. They have to be wary of unscrupulous elements jumping onto the bandwagon to claim their moment of fame; and ensure that truth prevails without compromising on the judicial dignity. A clear signal has to go that no one is above the law, while at the same time there can be no laxity in safeguarding the institution against malicious indictments. Although the panel has not been instructed to complete the proceedings in any fixed time frame, still it’s the need of the hour that proceedings are concluded as early as possible in an extremely transparent manner so as to restore the faith of people.

By: Dr. Vageshwari Deswal.
Dr. Vageshwari is a senior faculty member at Faculty of Law, University of Delhi.