A discussion on the manner in which allegations against the CJI have been dealt with in the past week

On April 20, when a complaint of sexual harassment against the Chief Justice of India (CJI), Ranjan Gogoi, became public, he responded by constituting a special Bench comprising himself and two other judges. This invited sharp responses from many in the legal fraternity. Three days later, the Supreme Court instituted a panel headed by Justice S.A. Bobde to examine the charges against the CJI. In a discussion moderated by Anuradha Raman, Karuna Nundy and Mihira Sood examine the implications of the decisions taken by the apex court. Edited excerpts:

What do you think of the Supreme Court’s move to set up a three-judge panel, including Justice Indira Banerjee, to examine the sexual harassment complaint against the CJI?

Mihira Sood: I have some reservations. For one, it is not in keeping with what the composition of a sexual harassment committee should be. The committee should be headed by a woman. The present committee is slightly flawed in its composition. The complainant had requested a special committee of retired judges, and the reason for that is simply that they would not be beholden to the CJI in any way.

While one hopes that the committee will display some independence, it is difficult, because these are judges who are still under the administrative control of the CJI. It would be better if this committee were to go about setting up an external committee comprising a majority of women, chaired by a woman, retired Supreme Court judges as well as others who are committed to the cause of gender equality. The committee should inspire confidence that it is going to be independent and not beholden to the CJI in any manner. What happened last Saturday was highly irregular. That Bench had no jurisdiction under the Supreme Court rules or under the Constitution to have conducted the hearing.

Karuna Nundy: I think there are two problems with the setting up of the panel. One is that that the committee is under the administrative control of, and junior to, the CJI. Ideally, you should have someone senior to the CJI (retired judges, for instance) or an unimpeachable decision-maker who has no connection to the person whose actions are being examined. Then there is also another Bench examining the affidavit filed by a lawyer who claims that he was asked to frame the CJI. Essentially, the two Benches will be looking into the same issue and they are in danger of contradicting each other. It is not that any of the judges are not trusted. That’s not the point. The point is that the robustness of the mechanism has to be above any allegation of bias.

Last Saturday, the Supreme Court registry said in a notice that the Bench was being set up to deal with a ‘matter of great public importance touching upon the independence of judiciary’. What do you make of that remark?

MS: In terming it as such, the CJI is equating himself, an individual, with the institution, the judiciary, which is extremely worrying. What he should have done was acknowledge that these allegations had been made and submitted himself to an inquiry.

KN: Last year, Justice Gogoi and three other judges stood for the same principles that constitutionalists are asking them to stand up for now — that you cannot be a judge in your cause; that however high you may be you are not above the law; and that there must be predictability in the allocation of Benches. These principles must be followed, and have not been followed so far. Justice Gogoi has been a great judge in so many ways and I think there is an opportunity to admit that a mistake has been made. This is also a time for our judges to dissent.

What do you mean by dissent? Are you saying that the judges should have protested against the CJI’s decision?

KN: I am saying that this is exactly the principle that brought the four judges out to protest — the arbitrary allocation of Benches by former CJI Dipak Misra. The judges were saying you cannot choose your own Benches. This is now about the integrity of the institution. This is also about the reputation for fairness of the senior-most decision-maker of the court.

MS: I think he has done far more damage to his own reputation and to the integrity of the institution by his conduct on Saturday. I don’t think the allegations bring that much disrepute to the institution as to him.

KN: If the judges had demonstrated that even if they were scurrilous allegations, the process has been fair, that nobody can say that every side has not been heard properly, it would have been okay. There appears to be verifiable evidence that definitely needs an answer.

MS: The allegations certainly bring the judiciary into disrepute. But the act of making the allegations cannot undermine the judiciary.

Should the CJI have stepped down instead of presiding over his own matter?

MS: The affidavit was sent to various judges of the Supreme Court. The in-charge of the court’s internal committee should have taken it up and taken on the task of setting up a committee. In her affidavit, the complainant had requested that a special committee of retired judges should look into it.

Is there a formal procedure to deal with allegations of sexual harassment involving the CJI?

MS: There isn’t. The permission of the CJI is required to proceed with any complaint. Barring the CJI, all other judges and employees of the Supreme Court as well as lawyers functioning in the court and any court under the Supreme Court are theoretically subject to proceedings under the Gender Sensitisation Internal Complaints Committee. The CJI’s permission is required before anyone can proceed with any complaint. The CJI has to sign off his belief in the authenticity of the complaint. So, while it does cover other employees, it does not cover the CJI.

KN: In the case of criminality or corruption or sexual harassment charges against the judges, the processes are deeply and woefully inadequate. The complaints go to the senior-most judges and some sort of closed door decision is made. The second thing that happens is there is talk of impeachment when the charges are serious. But nobody has been impeached so far.

What the present problem brings us is the absence of predictable structures when serious allegations are made against judges. We have to begin with the premise that judges are human and fallible. There are three layers to deal with sexual harassment at other workplaces: workshops to transform the sexist entitlement and sexual attitudes of people; frame policies; and set up the Internal Complaints Committee. The Supreme Court does not have that structure. The day-to-day dealing with such issues is absent.

At the end of the hearing, an order was passed that seemed like a gag order on the media.

MS: It was intended to be a gag order. I would say that you have already decided that the allegations were wild and scurrilous and were clever in saying that that you leave it to the wisdom of the media to exercise their wisdom, knowing well that large sections of the media would be too terrified to say anything. This is what is called a chilling effect. Also, in the order, the CJI did not record that he was present. On what basis did they say it was wild and scurrilous without a hearing? It boggles the mind that these are the same people who decide on matters of justice and they see no injustice in pre-deciding the matter.

KN: The order on the media is against the spirit of the Mirajkar judgment, which says there must be a law even if you are seeking to gag the media. You cannot by a court order suo motu directly or indirectly gag the media. This isn’t a direct gag but it has a chilling effect. When we look at the courage of the four media houses, the courage is not just in this case but also in a large number of cases where they have been sued for defamation. These cases will come before the same judges, hence the chilling effect.

What was the purpose of the special hearing last Saturday?

MS: There are three women judges in the Supreme Court and their absence on the Bench says a lot. The two other judges who were hand-picked were not the senior-most. I find it difficult to believe that the judges were unaware of this. One can conclude that the purpose was to give the CJI a platform to proclaim his innocence.

KN: That is what is so striking about this hearing — it was to quash the temerity of anyone who makes such a public allegation and, of course, that comes from a place of entitlement. We really miss the presence of more women on our Benches. That’s why the complainant has requested for a special inquiry committee external to the Supreme Court. What this also brings out is that our Benches have to be more diverse. It is also important to separate the patriarchy from the gender of the individual. It is also true that men can be more feminist than women. We also have women judges on the Bench who have been very conservative and have a different idea of justice. Feminism founded on the principles of justice needs to find an outlet in the composition of the Benches of the Supreme Court.

The role of the Attorney General (AG) and Solicitor General (SG) have also come under scrutiny for their unwavering support to the CJI in the matter. What do you have to say about this?

MS: The manner in which they conducted themselves in this proceeding has been shameful. The Bar Council chair and Supreme Court Bar Association president, who condemned the allegations and termed them scurrilous, have no authority to speak for the rest of us.

KN: Their conduct in this manner was not right at all.

Is sexual harassment in the highest judiciary one of the worst-kept secrets?

MS: I think it is a problem wherever there is a high concentration of power in the hands of very few people. In the legal profession, sexual harassment is rampant. It is extremely difficult for women to come forward. Most prefer to put such incidents behind them or leave the profession rather than seek justice for fear of repercussions. The proceedings on Saturday as well as the allegations detailed in the affidavit, if they are true, justify that fear.

KN: It is wrong to suddenly think of our senior-most judiciary as a hotbed of sexual harassment. The question is, should such a thing happen, is there impunity? The answer is, yes. It is that impunity that needs to be addressed. But we are going through a churn. We have women who are much more aware of bodily integrity, and entitled men in positions of power. We have to strengthen the system to check impunity and ensure that due process is followed.

(Mihira Sood and Karuna Nundy are advocates, Supreme Court of India)