New Delhi: Former Supreme Court judge Justice Indira Banerjee, who was part of the inquiry panel formed in 2019 to look into sexual harassment charges against then Chief Justice of India (CJI) Ranjan Gogoi, has defended the manner in which the committee proceeded with its probe that gave a clean chit to the CJI.
In an exclusive conversation with ThePrint, Banerjee — who demitted office on 23 September — said the inquiry committee was not “constituted simply to inquire into whether the complainant had been sexually harassed and decide what relief she would be entitled to”, but was to “look into the issue of whether the CJI had committed such gross misconduct that he should be recommended for impeachment” or “whether he should be requested to resign”.
The former judge had, on behalf of the panel, authored the final unanimous report that gave a clean chit to CJI Gogoi in May 2019. She stressed on the need to make the report public, saying it would clear many “doubts” about the proceedings. The Supreme Court (SC) had then said the report was not liable to be made public going by a 2003 judgment.
In April 2019, a 35-year-old staffer, who worked as a junior assistant in the SC, had alleged that she had been sexually harassed by Gogoi in October 2018. She wrote to 22 judges seeking an inquiry against the CJI.
On 23 April, 2019, a three-member panel led by Justice S.A. Bobde — who succeeded Gogoi as CJI — and comprising Justice N.V. Ramana (who retired as CJI this August) and Banerjee was set-up to verify the allegations. However, due to the recusal of Ramana, Justice Indu Malhotra was nominated as the third member.
The panel had come under criticism for “conducting ad-hoc proceedings, not disclosing the evidence that was examined and denying the complainant the help of a lawyer”.
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‘Wasn’t necessary for Gogoi to respond to allegations’
Banerjee opened up extensively on the controversy surrounding Gogoi and the criticism the inquiry panel faced.
She said the former CJI had no role in the constitution of the committee, which was formed with the consensus of all judges of the top court. However, in her view, Gogoi committed one “blunder” and that was “to sit on a Saturday” and respond to the allegations that were published in a section of social media.
“It was not necessary for the CJI to respond to the allegations. He possibly lost his cool because of the way he was hounded,” the former judge said. According to her, it was this hearing that sparked protests against him.
She maintained that the inquiry panel followed a legitimate procedure, one adopted by the SC in 1999, according to which the position of the complainant was that of an informant.
Given that the committee was to decide whether there was enough evidence to recommend impeachment of CJI Gogoi, it gave the latter a chance to depose before it. But it was not necessary to give the complainant a hearing, Justice Banerjee explained.
The scope of the inquiry was to look into the question of whether the allegations in the complaint “read as a whole constitute such misconduct on the part of the CJI that called for his removal from office”, she added.
Talking about the remit of the panel, she said it was not for the committee to “look into the question of whether the complainant had wrongfully been harassed by the police or whether the complaint lodged against her by some resident of Haryana, accusing her of taking money to procure him a job in the Supreme Court, which led to her harassment by the police, was false or true”.
According to the laid-down procedure, a written complaint was sufficient to conduct the inquiry. Yet, the committee issued notice to the complainant to appear before it to “substantiate her allegations”, Banerjee pointed out.
After appearing before the panel on the first hearing, the woman left the inquiry because she was not permitted to be accompanied by her lawyer. On this, the former judge clarified: “The 1999 resolution (related to conducting an in-house inquiry against a sitting judge) does not provide for the assistance of a lawyer, so she was told to appear without one.”
Banerjee denied that the inquiry was handled unfairly, and asserted that principles of natural justice were followed and parties got adequate opportunity to present their case.
She added that criticism against the panel was probably because there was misunderstanding related to the scope of the inquiry. “The nuances of the inquiry in this case and of an inquiry under the sexual harassment laws were not appreciated,” she said.
The panel was not set-up to see what relief the woman would be entitled to or if her termination from service was wrongful or if she should be reinstated in service, Banerjee said.
As for the allegations against Gogoi, she reiterated the panel’s findings — that the charges were “unsubstantiated”. The report, she said, was written in a manner of a judgment, and had reasons for the unanimous conclusion reached by the three panel members.
‘Legal profession insensitive to women’
Banerjee also spoke about her 20-year journey as a judge and the obstacles she faced as a young woman lawyer in one of India’s busiest high courts — the Calcutta High Court.
She also shared her view on the current collegium system of appointing judges, saying that since no “straightjacket formula is followed for appointments”, many “very competent senior judges” do not make it to the apex court or are superseded by their juniors.
In her opinion, the fact “that the government may also have a role in appointments does not in itself affect the independence of the judiciary”.
Elevated to the Calcutta High Court on 5 February, 2002, Banerjee went on to become a judge in the Delhi High Court in August 2016, and headed the Madras High Court as its chief justice from April 2017 for 16 months. In 2018, she became the 8th woman judge to make it to the apex court.
As a first-generation lawyer, and a woman, she faced major obstacles since the start of her journey. With great difficulty, and after being turned away by three to four seniors, she got an opportunity to work with a leading constitutional lawyer of the Calcutta High Court, Samaraditya Pal and his wife, Ruma Pal, who went on to become a judge of the Supreme Court.
Hence, Justice Banerjee does not regard becoming a judge as a “breaking the glass ceiling moment”.
“Making a break in the profession, overcoming the obstacles and hurdles was more difficult,” she said.
Barring a few exceptions, the legal profession is insensitive to women, if not inimical, she recollected, adding “members seldom took women lawyers seriously, getting work took time and, to make things worse, snide remarks, suggestive jokes and embarrassing insinuations often followed when a senior backed a junior woman lawyer”.
“This could be demeaning and disconcerting. Many of the men in the profession hesitated to back otherwise meritorious women juniors to avoid unwarranted attention and gossip,” she said.
She suffered other disadvantages as well. As a woman lawyer, she could not attend late evening conferences with clients because it was not safe for her to take a cab late at night.
For more than four years, Banerjee was the only woman in the Calcutta HC. She remembers how she felt left out at gatherings until her near contemporaries in the Bar got elevated. She describes her stint as Madras HC chief justice as one of the best phases of her judicial career.
(Edited by Nida Fatima Siddiqui)
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