The hearing in open court saw the Chief Justice of India orally remark on the complainant.

The participation of Chief Justice of India Ranjan Gogoi on the Supreme Court Bench, which heard the “extraordinary” session on Saturday into the online publication of sexual harassment allegations levelled against him by a former apex court employee, raises two pertinent questions.

One, did the Chief Justice of India (CJI) become a judge in his own cause by being part of the Bench? After all, the allegations directly pertain to him. Two, is there a formal procedure to deal with allegations of sexual harassment against the CJI?

In interest of fair play

Senior advocate Indira Jaising said the CJI should have “absolutely not” been part of the Bench.

In her response, senior lawyer Vrinda Grover said it was the “cardinal and basic rule of fair play that a person cannot be judge in his own cause”.

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“In the circumstances of this case, where the charge of sexual harassment, victimisation and intimidation has been made against a person holding the highest judicial office of the country, it is imperative that for the credibility of the institution, and confidence of the people in the judiciary as well as for the right to justice of the woman complainant, no hearing presided by the CJI ought to have been held,” Ms. Grover said.

A Supreme Court notice announced the Bench would hear a “matter of great public importance touching upon the independence of the judiciary”. The case was taken up as a suo motu writ petition. The court order said the Supreme Court had exercised its “inherent jurisdiction”.

A reading of the in-house procedure applicable to Supreme Court and High Court judges, the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act and the guidelines formed under the Supreme Court Sexual Harassment Regulations do not contemplate a public hearing on the judicial side, that too, without due notice to the complainant.

The half-hour hearing in open court saw the CJI orally pass remarks about the woman in question, including that there were criminal complaints against her. The hearing mainly imputed that the allegations were meant to make the judiciary a “scapegoat”.

“Curiously, after the CJI had placed his own ‘defence’, and on this occasion aspersions were cast on the veracity and integrity of the complainant, he recused himself, and the judicial order does not reflect his name,” Ms. Grover pointed out. Usually, a judge puts his signature on the order even if he has recused from the case. Both Ms. Jaising, who was India’s first woman additional solicitor general, and Ms. Grover said there was no formal procedure to deal with sexual harassment allegations against the CJI.

‘Glaring lacuna’

“This is a glaring lacuna. In the absence of a credible mechanism that would provide a forum of inquiry to the former employee complainant, she had no option but to appeal to the Justices of the Supreme Court to create a Special Inquiry Committee comprising of retired judges of the Supreme Court. The present Supreme Court Internal Complaints Committee mechanism or the 2014 judgment in Additional District and Sessions Judge ‘X’ vs Registrar General High Court of Madhya Pradesh, are inadequate for an inquiry into the alleged misconduct by the CJI himself,” Ms. Grover said.

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In the in-house procedure for dealing with complaints against Supreme Court and High Court judges, it is the CJI who “examines” whether a particular complaint is frivolous. There is no word in it on how to deal with a complaint against the CJI.

Under the Gender Sensitisation and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal), Regulations of 2013, it is again the CJI who sets up the Gender Sensitisation and Internal Complaints Committee.