CJI Case: The Silence Of Good Men And Women
Let’s assume for a moment there is not an iota of truth in the allegations of sexual harassment made against the Chief Justice of India. In which case the in-house inquiry into these allegations has done Chief Justice Gogoi great disservice. Because it has failed to sufficiently clear his name.
Yes, the committee of three sitting judges found no substance in the allegations. But it ignored key principles laid down by this very court, and subsequently by Parliament, to conclude his innocence, thereby colouring the decision forever.
The landmark Vishaka judgment laid down by the apex court itself mandates that in the event of a sexual harassment allegation in the workplace (and yes, the Supreme Court is a workplace too) an internal committee with equal women members and with an external member should probe the charges. The POSH Act that followed this judgment makes similar provisions. The Supreme Court ignored both principles.
In fact, the due process failures began the very day the allegations came to light.
The Chief Justice himself held a hearing to debunk the claims. He said they were a threat to the independence of the judiciary.
The Attorney General of India and the Solicitor General were both present in court and sided with the chief justice.
Even before the court had appointed a committee to inquire into the sexual harassment allegations it gave credence to an affidavit filed by a lawyer suggesting a larger conspiracy at hand.
While the government should have played impartial, Finance Minister Arun Jaitley vouched for the integrity of the chief justice and termed the allegations “unverified” and “coming from a disgruntled person with a not-so-glorious track record…”
The Supreme Court appointed an in-house committee of three sitting judges – two of whom were male. Until one of them recused himself and a second woman judge was appointed.
No external member was appointed to the committee.
A week later the complainant withdrew from the inquiry citing several reasons. Key among them were that the committee didn’t share the procedure of inquiry with her, refused to allow her to be represented by a lawyer and didn’t provide her with a record of her statements or proceedings. It isn’t even clear if she will be provided a copy of the final report. Some of her requests may not be strictly supported by law - such as legal representation - but the in-house committee wasn’t following the law to begin with.
The three judges continued their inquiry ex-parte – without the complainant - and in six days came to the conclusion that the sexual harassment allegations are unfounded.
If it hoped this would exonerate the chief justice and restore the prestige of the court then exactly the opposite has happened.
The allegations may have clouded the chief justice, but not as much as the Supreme Court’s apparent disregard for due process, or at the very least lack of objection to the absence of due process, has clouded the decision of the three sitting judges. The fatal blow to this last standing bastion of fundamental rights is the silence of every other judge of the apex court. Except, maybe one. It signals their agreement with what’s gone on.
A judge of the U.S. Supreme Court once famously said that “We are not final because we are infallible, but we are infallible only because we are final.”
India’s Supreme Court judges know that they are the final recourse for those seeking justice in this country. If the chief justice has been falsely accused then the court has failed to clear his name. If there’s any truth to the complainant’s allegations then she’s been deprived of the one chance she had for justice.
Because where do you go when the Supreme Court closes its doors on you?
Menaka Doshi is Managing Editor at BloombergQuint.