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Chief Justice Sexual Harassment Allegation Controversy: Rule Of Law Thrown To The Wind With Parallel Hearings 

BloombergQuintOpinion

The judiciary is an ‘institution of integrity,’ and judges are expected to maintain probity in public life and in their private behavior, and keep a distance from the litigating public and draw lines between their personal and professional life. Outlining the critical role played by the highest judiciary in the effective functioning of the democratic polity in India, the Supreme Court, in N. Kannadasan v. Ajoy Khose, opined:

“People’s faith is the very foundation of any judiciary. Injustice anywhere is a threat to justice everywhere and therefore the People's faith in the Judiciary cannot be afforded to be eroded.”

“Accountability is one of the facets of the rule of law. If anyone is found to have acted in breach of law or abused his position while exercising powers that must be exercised only within the parameters of law, the breach and abuse must be punished.”

It is in this context that the functioning of the judiciary, when confronted with the complaint of sexual harassment by the Chief Justice of India of a former employee who admittedly worked at his residence, must be evaluated both on the judicial side and the administrative.

I believe the court has failed on both sides.

The Saturday hearing has been much-criticised by the media as being an act of erosion of the rule of law and due process to a complainant. The hallowed precincts of Court Number 1 were used to defame a complainant and to question her character. This was a judicial order and is there on the website of the court for all to see. The record of the court has been falsified and the name of the Chief Justice of India does not reflect in the order. Presumably, this bench sat on a matter of public interest on the publication of an affidavit of a complainant of sexual harassment on that very morning, to protect the independence of the judiciary. The title of the case reads as follows:

“SUO MOTO WRIT PETITION (CIVIL) NO. 1/2019 IN RE: MATTER OF GREAT PUBLIC IMPORTANCE TOUCHING UPON THE INDEPENDENCE OF JUDICIARY – MENTIONED BY SHRI TUSHAR MEHTA, SOLICITOR GENERAL OF INDIA”

While we were still recovering from the shock of the abuse of the authority of law, using the courts to make announcements which are better made in a press conference, another affidavit surfaced, this time by Utsav Bains who claims to be privy to information relating to “fixers” and suggesting the woman who complained was being used by fixers to “deactivate” the judiciary, meaning thereby her allegations were false.

What happens next is even more mysterious. A bench presided over by Justice Arun Mishra, and consisting of Justice Rohinton Nariman and Justice Deepak Gupta convened on Tuesday, April 23 to hear Bains on his affidavit.

Incidentally, no one knows where this affidavit was filed, it does not reflect on the website of the Supreme Court.

Suddenly the narrative now was of how “fixers” are destabilising the judiciary and the complainant is being used by them for this purpose. This is clearly the narrative and defence provided by the CJI from Court Number 1 on Saturday.

Then comes the announcement that Justice Arvind Bobde—the soon to be Chief Justice of India, if all goes well for him—has constituted a committee consisting of himself, Justice Ramana and Justice Indira Banerjee. We now know that the complainant has written to Justice Bobde and complained of the presence of Justice Ramana on the Bench given his closeness to the current chief justice. Reports indicate he has recused himself from the committee.

Meanwhile, the court is alarmed and continues to enquire, on its judicial side, into the affidavit of Bains, which too has the defence articulated by the CJI on Saturday.

So, there we have it, the judicial side and the administrative side of the Supreme Court are hearing the same matter.

The administrative committee will hear the victim and on the judicial side, alarm bells are ringing on getting rid of “fixers” who are using the lady to fix, meaning thereby that she is a blackmailer and her complaint is part of a “larger conspiracy”, so magically, there is no sexual harassment.

When the bench presided over by Justice Arun Mishra was told that there can obviously be no parallel enquiry into the issue of sexual harassment, we were told there was no overlap between the mandate of the two enquiries. The order, however, indicates something different:

“Mr. Utsav Singh Bains, Advocate, is present in Court today. He has given an affidavit in Court in a sealed cover. Thesame is taken on record. It is to be kept in a sealed cover in total confidentiality, as it contains highly sensitive information pertaining to the alleged conspiracy, according to him, to frame Hon’ble The Chief Justice of India into a case of sexual harassment. In that connection, he has stated to have met with certain persons at certain places.”

While there may be “fixers” in the court and this fact should have been investigated when two employees of the court were sacked, this does not mean there was no sexual harassment.

A question that I have raised at the time (when two employees had their services terminated by the CJI) is a “clean up effort by which Justice Arun Mishra was much impressed, was, why was the beneficiary of the fixing not investigated?” That was the opportune moment to investigate the conspiracy of obtaining fraud orders, not now when allegations of sexual harassment are made.

We have one enquiry into the allegation on the administrative side, and one into the defence against that allegation on the judicial side. In the latter, the complainant is missing, no notice has been issued to her.

Is this the rule of law? No, certainly not. To isolate the two enquiries is to isolate the victim of sexual harassment. While Utsav Bains gets VVIP treatment and police protection for the second time in the history of the Supreme Court, the complainant languishes in obscurity in danger of her identity being effaced from the record of the Supreme Court.

Both, the administrative as well as the judicial proceedings, have no legitimacy in the eyes of the general public. Neither complies with the spirit of the Vishaka ruling. Neither has a woman judge presiding. Let the public judge if this is due process, and what is the integrity of the enquiry on the administrative side when the Chief Justice himself continues to perform administrative and judicial functions during the pendency of the enquiry. He must desist from judicial and administrative work if the enquiry is to mean anything.

Jonathan Soeharno in his book ‘The Integrity of the Judge: A Philosophical Inquiry’ observes that:

“judicial integrity is seen as a constituent for the legitimacy of the judicial authority, as a condition for sound judicial decision-making and as a prerequisite for public trust.”

He further notes that,

“Integrity bears the connotation that the values and duties that refer to it have the function to give institutions the predicate of ‘sacrosanctity’ or ‘inviolability’ in the public domain. Much stronger than in the Greek polis, the Roman world empire, or the budding Rechtsstaat of the nineteenth century, we have to do with a democratic embedding of public institutions. With respect to democratic legitimacy, integrity is not merely an obligation of the office holder but also of the institution itself. This obligation entails that public trust is upheld, but in a specific manner.”

In democratic societies, the legitimacy of public institutions rests in part in the trust that is placed in them.

Public trust, is not in the first place, directed at the individuals holding these institutions, but at the institutions themselves.

The judiciary has lost legitimacy in the eyes of the public, only total transparency will enable it to regain its legitimacy.

Indira Jaising is a Senior Advocate at the Supreme Court of India, and is intervening before the bench presided over by Justice Arun Mishra on the affidavit filed by Utsav Bains; and the founder of The Leaflet.

The views expressed here are those of the author and do not necessarily represent the views of BloombergQuint or its editorial team.