Chief Justice of India Ranjan Gogoi. (Source: Supreme Court of India Annual Report)

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

BloombergQuintOpinion

A three-member panel of the Supreme Court has found “no substance” in sexual harassment allegations against Chief Justice Ranjan Gogoi.

A notice by the office of Supreme Court secretary general said the report of the in-house inquiry committee—headed by Justice SA Bobde—is not liable to be made public.

BloombergQuint spoke to legal experts:

Also read: Chief Justice Of India Faces Sexual Harassment Charges - The Story So Far

‘Procedure By Which This Finding Was Reached Is Illegal’

Indira Jaising, Senior Advocate, Supreme Court

In my opinion the foundation of justice has been polluted at its source. The original sin if you can call it that, was the constitution of the bench on April 20, constituted by the Chief Justice of India on which he sat himself. The most basic principle that no person can be a judge in their own cause, has been violated. Widely reported comments were made, casting doubts on the integrity of the complainant, by virtue of which the most subsequent decisions suffer from the vice of bias. On April 22, suddenly from being a case brought by a complainant, it became a case brought against her.

Ustav (Bains), who is not a member of the Supreme Court Bar Association, was allowed entry into the Supreme Court of India, without proper security clearance, and it appears he was enabled to file an affidavit, in which he claimed that there was a conspiracy by “fixers” against judges who were taking bold decisions of cleaning up the judiciary. The name of Manav Sharma and Tapan Chakraborty, two employees of the Supreme Court, who were dismissed earlier, for manipulating an order which benefited Anil Ambani, were mentioned in open court by Justice Arun Mishra.

What surprises me, is while the two employees were dismissed, the beneficiaries of the order, which enabled Anil Ambani to not remain present in court, was not investigated.

I do not believe that the court has a genuine desire to look into the question of fixers.

In any case, this has nothing to do with the allegations made by the complainant, against the Chief Justice of India, and I fail to understand why suddenly an inquiry has been ordered into the fixers. It may just be a diversionary tactic.

The final blow to the justice system came today, in a report which appears to absolve the Chief Justice from all wrongdoing.

While it is not my place to comment on the merits of the allegations, or the truth or otherwise, of the allegations, the procedure by which this finding was reached, is illegal. Reference has been made to the case of Indira Jaising versus the Supreme Court—a decision of 2003. It will interest the readers to know that this was also a case of sexual harassment at the workplace, made against the sitting judge of the Karnataka High Court. The report was not allowed to be made public despite the fact that I approached the court for a copy.

The Supreme Court has failed to notice one of its own judgments in ADJ versus Registrar Madhya Pradesh in 2015 when a sitting woman judge complained about sexual harassment by a high court judge. She was given a copy of the in-house inquiry report.

I hope that the report is given to this complainant because it is capable of legal challenge.

I believe that the right to representation by a lawyer in all forums, particularly where the balance of power is skewed against the complainant and there is no level playing field, is a fundamental right. The denial of this right to the complainant, is a gross violation of her fundamental rights.

The decision is capable of challenge and will surely be challenged. The court has failed the nation and is in danger of losing its credibility, unless there is immediate course correction by acknowledgment of the failure of justice.
Indira Jaising, Senior Advocate, Supreme Court

As an immediate measure, the Chief Justice of India must withdraw from all administrative work so that the court is enabled to function without being dominated by the shadow of the Chief Justice of India as the master of the roster.

At the end of the day, and finally, the judiciary is meant for the people. We do not want to see it becoming a judiciary for the judges, by the judges.

‘An Unfortunate Way Of Dealing With An Inquiry’

Arvind Datar, Senior Advocate

I feel that it is a very unfortunate way of dealing with an inquiry. Not giving reasons is totally unacceptable. If anybody is conducting an inquiry, it is to arrive at the truth. The decision-making process is as important as the decision.

Here is a case where the lady has given a detailed affidavit running into many pages and giving detailed annexure. She has withdrawn because she says that the statements have not been recorded properly. She didn’t have the service of a lawyer and so on. It’s on record that one judge of the Supreme Court has said that she should be given at least some opportunity to present the case.

Why do you say there is no substance (in allegations of sexual harassment levelled against the Chief Justice), there should be a 5-10-line order to say what the reason is. I don’t understand this thing of relying on some Indira Jaising statement saying we need not make it public.

If you want the confidence of the public, then you will make it public. Then why have an inquiry at all? If you’re going to have an inquiry, at least the findings should be made public. 

Suppose there is an inquiry against the chairman of the company or the managing editor of the company, the inquiry is not conducted by other three directors. It should be conducted by a completely independent board.

What has happened is we have exonerated the Chief Justice and incalculable damage has been done to the Supreme Court’s reputation. 

Whoever I speak to, people feel this is some kind of operation to suppress the truth, and somehow close the whole chapter.

It would have benefited the Supreme Court if the complainant was given a lawyer. She is a low-level staff and has been questioned by three Supreme Court judges and has nobody to help her. With this kind of pressure, how do you expect her to defend herself? The allegations have been made public. We know the allegations, but we don’t know the responses of the Chief Justice.

I think it’s a very unfortunate situation. It’s like going from one crisis to another.

‘The Process Has Been Deeply Disappointing’

Karuna Nundy, Supreme Court Advocate

The point of robust due process, especially in a case where there is such an imbalance of power, is that the final decision be beyond approach.

Here a court assistant has accused the Chief Justice of India–so that the quality of justice must truly be beyond reproach.

Despite number of iterations to the panel, there was no external member. Not only should there have been a former woman judge on the panel, but also the complainant herself withdrew, as she was not allowed any assistance before the panel. Without the complainant’s participation, the odds that the decision would be any different would not be high anyway. The process has been deeply disappointing.

‘Affected Party Should Get A Copy Of The Report’

Mohan Parasaran, Senior Advocate, Supreme Court

They have said that the copy of the report will not be made available to anyone. At least the affected party should be given a copy.

If someone has to challenge the order, it can’t be challenged without a copy.