SUPREME INJUSTICES
08 May 2019

Today on the 8th of May, 2019, on a second day in succession, people protesting at Connaught Place, against the “clean chit” given to Justice Gogoi by an in-house inquiry that violated established procedures and principles and demanding an independent inquiry, were detained at Mandir Marg PS. The police came in large numbers armed with a water cannon. These events are an action replay of yesterday, 7th May, when a large police force that too was equipped with water cannons forcibly picked up and detained about 50 women activists who were protesting on the same issue outside the Supreme Court. One of the issues in today’s protest was the crackdown on yesterday’s demonstration.

While the police is clamping down on protest demonstrations against the “supreme injustice”, a plethora of cases have been filed against the complainant and those supporting her rights. These pleas and affidavits echo the refrain set up by none other than the accused, Justice Ranjan Gogoi, the Chief Justice of India. On 20th April in a special hearing purportedly on “the independence of the judiciary” that he himself ordered, the CJI sat on a three-member bench, denied all charges of sexual harassment, maligned the complainant, and declared that a “bigger conspiracy” was afoot to “deactivate the CJI’s office.” The very same evening SC advocate Utsav Singh Bains alleged a “conspiracy against the CJI by a lobby of disgruntled judges, SC fixers…” etc. and filed an affidavit before the SC on 22nd April. In marked contrast to its response to the sexual harassment charges, the Court appointed a retired judge to look into Bains’ charges, and also directed the CBI, IB and NIA to help. On 6th May, the day the CJI was given a “clean-chit”, SC advocate ML Sharma filed a petition asking for an SIT into a “planned conspiracy” against the CJI by democratic rights lawyers Prashant Bhushan, Indira Jaisingh and others through “a concocted, false sexual harassment case”. Justice Bobde, who headed the in-house inquiry, agreed to list it. Not surprisingly the Bar Council of India, which extended unconditional support to the CJI when the news of allegations first broke, has now declared its stand vindicated by the findings in the Committee’s report (a report which the Committee has refused to release, even to the complainant). It has called for protecting the “independence of the judiciary,” warning of a larger conspiracy and deeming the woman’s allegations “fishy.”

The government has thrown its weight behind the CJI from day one. The Union Finance Minister, Arun Jaitley, asked for support for the CJI on 21st April, calling the complainant someone with a “questionable track record”, and the media that published her affidavit “institutional disruptors”. At the 20th April “special hearing,” both the Attorney General and Solicitor General, whose role is to appear for the Government and who had no locus in the matter, rubbished the allegations and carried out a character assassination of the complainant. Both offices are expected to assist the Court and Government in fulfilling their constitutional obligations, not participate in proceedings violative of natural justice. They later even asked for an SIT to be constituted to probe the “conspiracy”.

Except for a handful of judges, and advocates of whom a large number are women, the judiciary has chosen not to criticise nor express any disquiet over the CJI’s abuse of authority, and the brazenly flawed inquiry. The functioning of the inquiry committee in fact illustrates why the Court’s own guidelines emphasise the presence of external members in panels inquiring into sexual harassment at the workplace. The mere presence of two women Justices did nothing to ensure a fairer procedure, as the CJI was senior to them, besides of course being the highest judicial authority in the land. The committee continued with its inquiry even after the complainant had walked out, and has not even given her a copy of its report.

Voices from within the legal fraternity, which argued that the principles of natural justice and Vishaka guidelines should be upheld, were at best marginal. There could scarcely be clearer proof that the judiciary itself is far from fair and impartial, and certainly not when it comes to gender-based harassment. The immediate banding together of the judicial and legal fraternity, the executive and the administration speaks of an immense insecurity regarding sexual harassment at the workplace. If a complaint can be brought against someone as powerful as the CJI by a lowly ex-staffer working directly under him, the dual power of gender and public office are threatened, and hierarchy has to be reinforced in no uncertain terms.

The balance of power could not be more stark. The judiciary, the legal fraternity, the government and the police have bonded to protect the CJI in response to a most basic demand: that the minimum guarantees the Court itself has made should be upheld, most prominently the Vishaka guidelines, PoSH at the Workplace Act, and fundamental constitutional principles regarding a fair hearing. The “independence of the judiciary” has been given new dangerous meanings. A separation of powers to ensure checks and balances necessary to democratic functioning has morphed into a call for the judiciary, government and administration to rally together so that they can evade all accountability.

What the women of India are being told is that one judge is synonymous with the judiciary; that gender-just laws brought in after long struggles by women can be shortly dispensed with; that high public office continues to place men above the law; that women employees have no rights and women are not entitled to constitutional freedoms; and that no matter how basic, the principles of the rule of law and natural justice can and will be flouted if we question the powers that be. It is a cause to rage collectively when hard-fought rights can so easily be thrown to the winds by none other than the highest body meant to defend them. Today these are the rights of a working woman, but they set a precedent for the decimation of fundamental rights of all citizens and not just those who are already disadvantaged. We have looming before us a society and polity where individuals become larger than institutions, and where all arms of the state are complicit in silencing all challenges to an arbitrary exercise of power by the authorities.

PUDR demands that:

  • An independent inquiry should be conducted into the charges of sexual harassment against the CJI in accordance with the Vishaka Guidelines (1997) and the PoSH Act (2013)
  • All petitions alleging that the complaint is a conspiracy against the CJI and the judiciary should be put on hold till the conclusion of a fresh, impartial inquiry.
  • The Chief Justice should not be allowed to exercise his official powers for the duration of the inquiry.
  • Existing laws and regulations, such as the Supreme Court’s “In-House Procedure” and its 2013 GSICC Regulations, should be reformed to provide a fair process for dealing with complaints against the CJI.
  • No police action should be taken against peaceful demonstrations and other expressions of dissent on the issue.

Shahana Bhattacharya & Deepika Tandon
[Secretaries, PUDR]

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PUDR CONDEMNS SHAM INQUIRY INTO CHARGES AGAINST CJI
02 May 2019

On May 1st, 2019, the three-judge inquiry into charges of sexual harassment against the Chief Justice of India decided to proceed without the complainant, with the CJI appearing before it. The complainant had withdrawn from the inquiry the previous day, describing the shocking course of action adopted by the inquiry committee, in complete violation of basic tenets of natural justice and the Supreme Court’s own jurisprudence on sexual harassment. PUDR strongly condemns the committee’s decision to proceed in her absence and demands that an impartial inquiry be conducted by a fresh committee comprising external members. Given the Court’s brazenly self-serving responses to these charges even outside the committee, there is little doubt that the complainant is right in fearing she will not be given a fair hearing.

There is no clear procedure for the present case, since the Court’s ‘In-House Procedure’ does not provide a process for complaints against the CJI and its 2013 Regulations on the Internal Complaints Committee for sexual harassment do not apply to the current complainant. The very fact that such a loophole exists is already condemnable. But for the Court to take advantage of this ambiguity by evolving a farcical procedure is an even more shameful abuse of power, severely detrimental to public trust in the institution.

The judges did not even inform the complainant what the committee procedure would be, merely telling her that it would not follow any laid-down procedure but be entirely ‘informal’. In a 2014 judgement (ADJ ‘X’ v. High Court of MP), the SC itself had stressed that, in cases of sexual harassment, its ‘In-House Procedure’ can be modified in “the sc and circumstances of a given case, to ensure that the investigative process affords safeguards, against favouritism, prejudice or bias.” But the changes to procedure in the present case, far from trying to afford better safeguards, dismantle the most universal ones. In exercising their discretion over this ‘informal’ procedure, the judges chose to deny the complainant a lawyer, though her adversary is the highest-ranking legal authority in the country. When the complainant informed them that she had a hearing impairment and could not hear how they were dictating a record of her statements, their response was to deny her a copy of her own statements. Such modifications, coming from judges who have spent decades engaging with the basic requirements of a fair hearing across areas of law, can only indicate a bias against the complainant. In addition, the very composition of the committee is of course flawed. While the Court’s judgements and Regulations recognise the importance of an external member on such committees, not subject to the same influences as those within the organisation, the three judges hearing the complainant are all junior to the accused, as are any potential witnesses.

It would be impossible to list all the norms that the Court has violated in the last week alone. In the widely-criticised ‘special hearing’ on 20th April, the CJI presided over a hearing in his own cause and essentially falsified this fact in the final order. The two other judges on the bench, without hearing the other side, joined the CJI in conflating allegations against him with an attack on the “independence of the judiciary.” The Attorney-General and Solicitor-General not only watched these legal axioms being violated, but actively participated. At the customary Monday meeting of SC judges afterwards, judges reportedly asked for all-male staff at their residential offices. There are subtler ways to deny fair process. But for high-ranking authorities to band together solely to discredit a complainant, without even an ostensible concern for rules of fairness that they themselves made, is a new nadir for its sheer brazenness.

In light of these events, and echoing demands made by several groups of lawyers and women’s rights activists, PUDR demands:

  • The present three-judge inquiry should not proceed in the complainant’s absence. The inquiry into her charges should instead be conducted by a special committee comprising and headed by external members who are not sitting Supreme Court judges.
  • The inquiry should be in accordance with the principles of natural justice, the Supreme Court’s own guidelines in Vishaka v. State of Rajasthan (1997), and the Prevention of Sexual Harassment Act (2013).
  • The complainant’s requests for video-recording of proceedings, representation by a lawyer etc. should be granted.
  • Appropriate action should be taken against functionaries of the Court and the Delhi Police based on the findings of an impartial inquiry.
  • Supreme Court regulations should be suitably amended to fill existing gaps; including the exclusion from the 2013 Regulations of employees governed by the Court’s service rules, and the lack of an ‘In-House Procedure’ for complaints made against the Chief Justice of India

Shahana Bhattacharya and Deepika Tandon
[Secretaries]