The Supreme Court of India. (Source: PTI/ BloombergQuint)

Credibility Of The Supreme Court Has Been ‘Seriously Dented’, Says Advocate Arvind Datar

Senior advocate Arvind Datar has rued how the Supreme Court—one of the last credible institution in India—is losing its sanctity. And today’s events, where people questioned the apex judicial body’s handling of sexual harassment allegations against the Chief Justice of India, only adds to the damage.

“Today there were women standing out of the Supreme Court and protesting about it with slogans, which was unheard in my 40 years of practice,” Datar told BloombergQuint in an interview. “I have not seen this kind of protest outside of the court against the system. They may have protested a verdict or a particular move. But protesting the way Supreme Court has conducted itself was rather unfortunate and it has never happened before.”

Datar said the “brutal fact” is that the Supreme Court’s credibility has been “seriously dented” over the last four to six years. “There is no doubt that the credibility or the reputation of the institute has suffered a serious damage,” he said.

Datar was referring to a myriad set of events - notably, the press conference by four sitting judges in January 2018 to express dismay over then Chief Justice Dipak Mishra’s handling of case assignments and conflicts of interest. Late last year there was also controversy around the appointment of Justice KM Joseph. But the worst damage has been caused by the allegations of sexual harassment made against current Chief Justice Ranjan Gogoi and the court’s handling of the case.

“It seems very difficult to climb up the mountain and gain the reputation but so easy to slip and go downhill, and once you go downhill it’s very difficult to climb up the path. I don’t think that what has happened in last two years has done any credit to the institution which is very unfortunate.”

The moment the public loses confidence, you are doing incalculable damage to institutions. Ultimately, Supreme Court has to raise the level of confidence because that was the only pillar of constitution that seemed to be working well. And now if you do down the path, then it is going to be sad story.
Arvind Datar, Senior Advocate, Madras High Court

Watch Arvind Datar in conversation with BloombergQuint’s Menaka Doshi here:

Also read: #BQDebates: Supreme Court Chief Justice Gets Clean Chit But Due Process Questions Persist

Here’s the edited transcript of the interview:

Three sitting judges constituted in-house committee of Supreme Court to probe or to inquire into these sexual harassment, and yet today where we stand, we are raising questions on the due process at the highest court or apex court of this country. What exactly has gone on?

In an article I wrote today that the worst period in our 70 years history is just over. And I personally feel that enquiry should have been conducted by an independent team of judges, who are not sitting judges. And I have given an example, if there are allegations against the chairman of the company or a managing director of a company, then it would be rather absurd to have the inquiry done by three other directors of the same board. It would normally go to an independent committee. So, the first thing was that they should have perhaps constituted the committee of judges outside the court. For example, in the Karnataka episode in 2003 when the allegations about some sexual misconduct outside Mysore and Bangalore, they constituted the committee of three judges other than Karnataka judges. That would have lent some amount of credence. And I felt that when she has sworn to an affidavit with so many paragraphs and almost 30 or 35 annexures, I think it would have merited some legal help or some assistance to that young court staff. I don’t think the procedure is fair and there is already a public outcry at the way in which the proceedings have gone on.

Editorially, the problem with this situation aroused when the Chief Justice himself first held the hearing at that Saturday morning. An emergent hearing if one may call it that and debunked the allegations. But at the end of it we had three sittings judges of the Supreme Court constitute this in-house committee. Are we not to believe them and if cannot believe three sitting judges of the Supreme Court of India today and we have doubts on the Chief Justice and the due process that he has employed then who are we to believe?

That really raises very serious doubts about the highest court. The three judges who constituted the committee are, individually, very fine judges. I have nothing against them personally, but I think the manner in which the inquiry was conducted is rather surprising. What is more improper, in my opinion, if I may use the word, is that to say that they will not communicate the decision to the complainant also. Now you have come the conclusion that there is no substance in the allegations. This is a lady who has made the allegations with a very detailed affidavit with 30 annexures. Now are all the allegations false or are some of the allegations false? What was the defense of the person she accused of? What was his stand? How he dealt with those allegations? What are your findings of the allegations? Now nothing is known, everything is in sealed cover and ironically a copy is given to Chief Justice Gogoi and Justice Mishra, but not to the complainant. I think she should have right to know on what basis the court held, the committee held, that there is no substance in the allegations and that is the least they could have done. Because if her affidavit was false then it is an offence under IPC, and I think its section 177 to 182 of the IPC. It’s punishable, two years imprisonment, if her affidavit was false. So, I think in those circumstances the way in which this was conducted, it would have been better if they would have either given it to some retired judges or they have allowed her some help. Worst of all, they should have at least made the report public, because here is the case where you have made allegations against the highest judicial officer of the country and there have been so many press reports and press comments. So, the least that could have been done was to make the report public and say that, look we have considered all these allegations, we have considered all these responses and we find that these allegations are baseless. For all you know the allegations may be really baseless, nobody knows the truth. That was what the committee is for. But now everything is going to be in perpetual mystery. What was the report, what was the finding, nobody will know.

There has been much debate on what the process should be in such an unprecedented case. What exactly are the rules that applies to the apex court of this country and its judges?

Speaking for myself, I don’t know why there should be difference of rules. For example, between an employee of a private company and the judges of the court. Because ultimately it is the same master-servant relationship. You will send a better message if you say that these judges are subject to same rules, same discipline as the other citizens in the country. As far as procedure is concerned, only thing which tallies with Vishaka is that there are two women judges, so the majority were women.

It turned out to be two women judges only when one of the judges formally appointed to that committee recused himself because the complainant raised an issue. When the committee was first constituted, it was two male judges and one female judge. There was no external member and no predominance of women.

It has happened that when Justice Ramana recused himself then they thought that they will appoint two judges. What is important is not just the question of fairness but the perception of fairness. In the rule of bias, it is not the actual bias but the appearance of bias which results in the loss of confidence in the justice system. Supreme Court should have had an enquiry committee which would have instilled confidence and put the complainant at ease. Have a clean examination as in any other court. Supreme Court keeps on giving lofty sermons on importance of fair play or due process or procedure of fairness and they say that reasons are the heart of law and they are foundation of administrative order or judicial order. But yet, we have don’t know any reasons, we don’t know the result of the order. In the end this entire process instead of restoring confidence in public, ultimately, we are concerned with what the public think of Supreme Court. That is most important than how you deal with the complaint. The moment you lose confidence in public, you are doing incalculable damage to institutions. Ultimately, Supreme Court has to raise the level of confidence because that was the only pillar of constitution that seemed to be working well. And now if you do down the path then it is going to be sad story.

Why would you think they would have agreed to this kind of process?

I thought there was an in-house committee because maybe they feel that being Supreme Court judges, they should not be subject to outside enquiry. There is no logic to that but that’s what they felt. Then they said that Vishakha rules won’t apply to Supreme Court and I don’t know why. If there is case of sexual harassment, why should a complainant who suffered sexual harassment in an ordinary employment have a different rule than when she suffers sexual harassment in the Supreme Court? There was no precedent in court to follow. We had some precedents in High Courts where there was issue in Madhya Pradesh and Karnataka which was handled by external committees. As far as Supreme Court is concerned, it was unprecedented. They may have been completely baffled as to what has to be done. But I don’t see why they can’t have a simple experience of appointing retired lady judges like Uma Pal, Sujata Manohar and Ranjana Desai. They could have constituted a committee and could have a male member also and they could have had a proper enquiry. Their report would have done great deal to instill confidence in public.

Why do you think the judges played along with this?

I don’t know and it is baffling. Maybe it was perhaps a desire to protect the institution. They say that people should not lose faith in the institution and so we will have a quiet inquiry. If that was the objective, then it is certainly not being achieved. Today there were women standing out of the Supreme Court and protesting about it with slogans which was unheard in my 40 years of practice. I have not seen this kind of protest outside of the court against the system. They have protested a verdict or a particular move. But protesting the way Supreme Court has conducted itself was rather unfortunate and it has never happened before. You should have a (properly) laid down in-house procedure because we have been having crises after crises in last 4-5 years. Every time there was controversy. You had Chief Justice being on cover stories of magazines and with very unpleasant cover stories on them. This sexual harassment (allegation) was unprecedented but there (have been) other kinds of judicial misconduct. There should be a standard operating procedure and in-house mechanism where hereafter any complaint is made then it can go to a committee of retired judges. It need not be made public or need not made public beyond a particular point. But at least the public knows that if this kind of complaint is made, then this is how it will be dealt with. In all companies, you have Vishaka guidelines, you have POSH act, you have other statutes and there is standard operating procedure we follow. I personally feel that if there is procedure and there is independent enquiry and report is going to made public, then it will also instill accountability among the judges. They will know that whatever they do, they are accountable to the citizen and for whom they exist in first place. All of us exist here to deliver justice.

Why could these fine judges not draw from the core principles of either Vishaka or POSH act and apply them in whatever technical format they want to apply? Here is a complainant asking to be represented by a lawyer in front of three sitting judges. What could be justification on the other end for doing what it did in this fashion?

This has been bothering me over the last few days and till today I didn’t write anything about it. For example, when she made a request for the lawyer, there are judgements which say that in Vishaka type of enquiries, there is no right to be represented by a lawyer. Generally, it is typical in-house committee where the complainant and the accused are both represented. The general rule in departmental enquiries is that if one party doesn’t have the lawyer, then the other doesn’t. In many cases and if it is case of sexual harassment, lawyers are not necessarily permitted. In this case, the complex nature of allegation she made, she referred to some criminal prosecution and handcuffing. There are very unpleasant facts in her affidavit. In that case, the committee should have allowed a lawyer. My point is if they didn’t want to allow a lawyer, there must be reasons for it that look this the complaint before us and these are the reasons where we feel she doesn’t require legal help. At least, the public knows that there are reasons and the court acted in reasoned manner and for known reasons they have decided not to give a legal representation and then we can understand it. But just to say that you are not entitled to lawyer makes matter worse. You are baffled at why they didn’t follow the core principles. We don’t know what they have followed because the order is not known. Suppose they had passed a very detailed order, setting out all the reasons for saying that there is no substance, then we can say that there were three judges, they have applied their mind, they have seen the allegations and response of the person accused, they have considered all the facts before them and they have come to a conclusion. The conclusion could be right or wrong but at least there is a reason for the conclusion. The entire mystery is primarily because nobody knows what the report contains. So, you, I and the entire bar is surprised on what basis have they said that there is no substance in her allegation. You can’t tell the public that since we are Supreme Court and we say there is no substance - you just accept it. People won’t accept it. The irony is that they rely on a2003 judgement in the Indira Jaising case which came out of Karnataka to say that the report will not be made public, which is judicial precedent which is binding on them and there is no problem. But Indira Jaising judgement does not say that the complainant won’t get a copy of the order. If I lodge a FIR and the case is dismissed, at least the order is communicated to me. I should know why my complaint is lacking substance. There is no judgment in the country, according to my knowledge, which says that a complaint made for misconduct or against a superior, which is subject matter of departmental enquiry, that the enquiry report will not be given to you. If it is an ordinary report, there is legal redress like you can go to writ court, High Court or Supreme Court. But against this report what is the remedy. What does the complainant know? On what basis, the complaint is being rejected? And that baffles you and me.

Was there any other route available to complainant to make her complaint known given that she was making allegations against the highest judge in this country? Was there any other way she could have registered her compliant?

There is no laid down in-house procedure, no grievance committee or no complaint cell where you can go and complaint that I have got a complaint against this particular judge for this reason. There is no mechanism and that was a gaping hole in procedure. The allegations were against the highest officer, which is the Chief Justice, so whom does she complaint to. The media reports that whatever happened, she had kept quiet about it but its only when the police harassment came and when she was handcuffed and taken to jail then she finally decided to make an affidavit and make it known to public. When she was pushed to wall and didn’t have recourse, I don’t know the facts, but that is what media reports, that she was driven to it because of harassment. That has been the stand that because of police harassment and her husband being jailed, her brother in law losing a job and so on. Again, the arrest took place because something happened in 2017 and complaint is filed and after two years within 48 hours, police arrested her. All these things are very strange. But this must have led her to file the process. I don’t think so she had another route. Should she have given the affidavit to 22 judges? I don’t know. Whether she should have given it to five collegium judges or to all? But the way she had done it, it has been done. Since there is no procedure you can’t say what she did was wrong. She wanted to address it to full court saying that this is the way I have been treated and this is my complaint. But it went viral and went in media. There was all the more reason why the inquiry should have been in public glare, so that the allegations are shown to be false and then they are rejected. Or if they are true then other consequences need to be said.

Today, as we stand as a country, when Chief Justice is on a bench, are we supposed to believe that he is blameless, or he is not blameless?

Legally speaking, he is blameless because there is finding by the committee that there is no substance in allegation. I have not seen a single report which said that this procedure was fair and proper. There seems to be criticism that this should not have been done in manner in which it was done. But legally speaking, the charges are gone, and they said that it is baseless, and they won’t communicate the reason. Supreme Court has spoken and they said there is no basis in allegations. Whether you like it or not, that’s the end of the road as far as the inquiry is concern.

What did you make of the silence of the other judges?

I don’t want to comment on it. Many of them will not speak out in public. I don’t know if there is internal grievance of the judges. I have no knowledge about it. The press conference was unprecedented in the history of India. Judges don’t go out to press and make their comments known. We are not privy to what has happened in court meetings and in-house discussions. Maybe some of them have protested, I don’t know. I don’t think law provides any place for it to be placed before a full court and being decided by majority. Internally, may be some judges are anguished. But we will never know.

We had the Attorney General and Solicitor General of India agreeing to Chief Justice that this was an attack on independence of judiciary. The Finance Minister’s blog pointed a finger at the complainant and protected the Chief Justice. This is politicisation of judiciary at some level. Or some might say that there is nothing wrong that Jaitley, who is himself a Supreme Court advocate, stood up in defense of Chief Justice. How did you read the position the government has taken in this matter?

I don’t know if the government has taken a position, unless the finance minister’s position is government’s position. The law minster didn’t say anything and there is nothing from PMO. Perhaps, Mr Jaitley expressed his view that, to his personal knowledge about the Chief Justice, it was very unlikely to have happened because Chief Justice is man of sterling character and that is his personal view. May be at that time he felt that there is attack on judiciary. I don’t think you can translate it to the attack on judiciary. If I make allegations against a particular judge, I don’t attack the judicial system. Again, the controversy of an advocate called Utsav Bains coming up and saying that there is an entire conspiracy to destabilise the judiciary and so on. That is another separate enquiry by (retired) Justice Patnaik. I don’t know what survives of it. The government has no role to play. It is entirely an in-house problem of the judiciary.

Yet, the Finance Minister is pointing a finger at complainant referring to her allegations as “completely unverified coming from a disgruntled person with not so glorious track record”. If he didn’t know her, then how has he arrived at this conclusion? Every single circumstance surrounding this matter suggests that nothing in this is as black and white as it seems or as the in-house committee is trying to make it be.

I agree with you. It would not be fair to characterise a person or disrepute or having unpleasant antecedence. It would not be fair to the complainant, particularly when she is defenseless. She is a low-level court staff. She doesn’t have any machinery and legal help. For her to say anything, she can’t retaliate. It may not have been proper when the matters are in court. But that is the statement and we can take it as the statement of finance minister saying that he doesn’t believe in the allegations of the complainant.

Should the finance minister even be offering a view on such allegations unless a properly constituted enquiry is carried out and a suitable process is followed, and the outcome has been arrived at?

The right person to answer this could be Mr Jaitley. But I personally feel that if the person (complainant) has taken the trouble of swearing to an affidavit which leads to criminal consequences if found to be false. If she has sworn to affidavits and enclosed annexures, it is not that some person just saying that she went to the room and somebody manhandled her, made sexual advances and she ran out. It is not something like that. She has given a detailed affidavit. It could be completely false. But once the complaint has been made and law has been set in motion, everybody should hold their tongue. Not just finance minister but you and I too should not have commented on it about the merits of the case. We should allow the inquiry to be completed and then come to a conclusion. Suppose they come to a conclusion and give a report, then you are entitled to the report and criticise it by saying that the find of innocence or guilt is completely wrong for some reasons. Once the matter is in enquiry and person have made a statement, you as journalist will not say something unless you have verified from other side. As we know that fundamental rule of law is Audi Alteram Partem which is - hear the other side. Without hearing the complainant, how do you come to conclusion that what she is saying is utter nonsense? It can be but it is only after an enquiry is conducted.

Yes, there is a good chance that the complainant may have been lying. But the discovery of truth in this case has been largely interrupted. What is the complainant now supposed to do? What recourse does she have now that the highest court of the land has shut its doors on her?

Technically speaking, her complaint has been found to be baseless and that’s the end of the matter. In the Indira Jaising judgement, the court said that report will not be made public. If the complainant feels that the action taken by the accused person is an offence under the Indian Criminal Law, then the remedy for her is to take action under the criminal law. That’s the theoretical remedy. I don’t know whether this is applicable to her. Maybe she is been represented by a lawyer and they will advise her. But this particular finding of the complaint being baseless will be a setback to her. If the reasons are not known and if she files, the complaint then she will have to start afresh. It is possible that the controversy may not end but lead to another kind of litigation. I don’t know. In Indira Jaising judgement, they said that the report will not be made public and the only remedy is to go to criminal law.

So, you are saying that the complainant has the option to take the criminal law route to file a case against the CJI in court?

I don’t know. If an offence is made out, then only remedy is to an FIR. There were allegations against the judges of Karnataka High Court. A report was given to Chief Justice by an independent panel of judges. Then, Indira Jaising filed a petition and said let the report be made known to public. At that time Justice Rajendra Babu held that there is no procedure of in-house committee and it is based on morality and ethics. You can’t say that take this complaint as a basis of further action. Depending on report, you will take further action and that is not open to you. If under the law, if some case is made out to file a criminal case you can do it. I don’t know the facts of this case and whether it leads to something, I don’t know and that is for the lady to decide.

If there is truth on her side and she feels justice has not been done, then the only route she has is to take the criminal law route. So, an ordinary court could then take on the hearing of a matter against the Chief Justice of India. Is that even a realistic option for a complainant?

I don’t know. It is very difficult to say because we do not know what the ingredients of complaint are, what offence is made out, how do you proceed, what’s the issue of sanction, permission. There are so many hurdles, assuming she had a case to approach a court. Theoretically, the in-house committee has shut the door as far as complainant’s harassment is concern in Supreme Court. Now, if she has to independently make out the case, she has to go that route. I am not a criminal lawyer and I don’t know how it will pan out. I just answered in the context of what the Supreme Court said the remedy should be for a complainant.

So, there is no clear alternate route for her, which Justices of Supreme Court of India would have known when they decided to shut the door on her. Effectively, this was her only option to go to Supreme Court and seek internal redressal if possible. Now that this door has been shut, there is no other option.

You take parallel example of Vishaka kind of case. If they go to in-house committee and find that the complaint is baseless then it is the end of the story. For that person to again go to criminal court is difficult even if technically that is available. It is sad thing but that’s how it has panned out.

What do you make of what we have witnessed in last year or more at the apex court?

One cannot ignore the brutal facts and deny that the last four-six years has not been a very happy state of affairs. There is no doubt that the credibility of Supreme Court has been seriously dented. We had, I don’t want to name individual judges, we had various examples of misconducts or allegations of misconduct or a feeling that this was not properly done at the highest level and there is no doubt that the credibility or the reputation of the institute has suffered a serious damage particularly when the Supreme Court is watching the performance of other institutions like the Election Commission. I think it’s their duty to live up to the highest possible standards. In environment law, we talk of repair and restoration. I think the way ahead is that the Supreme Court must focus its mind on repairing and restoring the dignity and majesty of the institution. It seems very difficult to climb up the mountain and gain the reputation but so easy to slip and go downhill, and once you go downhill it’s very difficult to climb up the path. I don’t think that what has happened in last two years has done any credit to the institution which is very unfortunate.

Also read: Clean Chit: ‘Gross Injustice,’ Says Woman Who Accused Chief Justice Gogoi Of Sexual Harassment