The former Supreme Court staffer who accused CJI Ranjan Gogoi of sexually harassing her refused to participate in the three-judge bench’s in-house committee proceedings, citing lack of trust about a fair hearing.
In the last two years, the SC has witnessed a series of controversies – open revolt by four senior-most judges against then CJI Dipak Misra, followed by an impeachment notice signed by 64 opposition MPs, corruption allegations against former CJI Jagdish Singh Khehar, and the row over the elevation of Uttarakhand High Court Chief Justice KM Joseph.
ThePrint asks: CJI Gogoi sexual harassment case: What can SC do to regain credibility after latest crisis?
Factions within the system are making every effort to tarnish the image of judiciary
Managing partner, GaMa Legal, Advocates & Solicitors
There are certain elements in the judicial system who are going out of their way to malign the Supreme Court. The latest controversy surrounding Chief Justice of India Ranjan Gogoi also hints towards this.
Despite repeated efforts by senior judges to be accommodating of the woman complainant’s demands, it seems the complainant simply doesn’t want to cooperate. Justice NV Ramana, who happens to be one of the most reputed senior judges, recused himself from the case purely because he wanted the complainant to have a free and fair hearing. Despite this, the complainant still alleges bias. For instance, her remark that the only possible witnesses are all Supreme Court employees who will obviously not speak against the CJI, is another cop-out.
The panel hearing the case includes Justices SA Bobde, Indu Malhotra, and Indira Banerjee. All three all extremely venerated judges. The complainant has claimed that her family has been harassed for months, and so she should ideally be cooperating with the panel in order to expedite the proceedings.
Judiciary is considered to be a very noble profession. But lately, factions within the system have emerged and they are making every effort to tarnish the image of the judiciary. It is very easy to claim that a judge has been bought, but such claims are far from reality.
The credibility of the SC judges is very much intact, and a mob making baseless allegations shouldn’t be paid heed to.
It’s worth asking if SC judges have courage and credibility to walk the talk when it matters most
Lawyer and researcher, Centre for Law and Policy Research
The Supreme Court has been lecturing for decades on substantive due process. It has always made the case for a fundamental right to legal representation; it has cautioned us repeatedly about suffocating the spirit of the law; it has refused to treat ‘unequals’ equally; it has wanted justice not only to be done but also seen to be done; and, of course, it has repeatedly proclaimed its commitment to preserve public confidence in the judiciary. Therefore, let the judges not pretend they do not know what needs to be done in this case. The only question worth asking is if they have the minimum courage and credibility to walk the talk when it matters the most.
While the Supreme Court has tried very hard to craft a public relations disaster for itself, this crisis still presents an opportunity for partial redemption. As a first step, the Supreme Court needs to allow meaningful legal representation to the complainant to tackle the power differential in the case. It needs to appoint an external member to the in-house committee, perhaps even two. It needs to record the proceedings of the committee.
CJI Ranjan Gogoi has to ensure he does not engage or involve himself with the committee judges in any formal, professional or personal capacity until the investigation is over. It would be ideal, though not expected of the CJI, to delegate all his administrative duties as the head of the institution to the second senior-most judge. Like in all cases, the judges have to be prepared for the possibility that this case might turn out either way.
Frankly, there is no great legal or analytical difficulty presented by this case. Any second-year law student could tell you what needs to be done. This is actually a test of character and integrity, not a test of legal knowledge. By following due process, the Court has to show it is not just ‘constitutionally’ but ‘legitimately’ Supreme.
Bad enough that judges appoint each other, we should not encourage them to probe each other now
Senior Fellow, Vidhi Centre For Legal Policy
The credibility of the Supreme Court has taken a battering over the last few years with allegations of corruption, abuse of power and, now, sexual harassment against the sitting Chief Justice of India. The fact that none of these allegations are being credibly investigated is further sullying the image of the Supreme Court.
There is no quick fix solution to restoring the credibility of the Supreme Court. At the very least, we must all agree that the solutions cannot come from within the Supreme Court. It is bad enough that judges in this country appoint each other. We should not be encouraging them to investigate each other because it will further destabilise the court.
Under The Judges (Inquiry) Act, 1968, sitting Members of Parliament can petition the Vice-President to initiate an investigation into the conduct of judges, after which the judge may be impeached by both Houses of Parliament. While the Lok Sabha MPs are busy with re-election campaigns, we must question our parliamentarians, especially those in the Rajya Sabha, on their reluctance to petition the Vice President to initiate the inquiry process under The Judges (Inquiry) Act, 1968 into the very serious allegations against the CJI.
Timing of the sexual harassment complaint against CJI Gogoi is suspect
Milan Deep Singh
Managing partner, Ace Law Offices
We have complete and utmost faith in the Indian judiciary. Most of the incidents that have ‘tarnished’ SC’s reputation have been politically motivated.
Given how CJI Ranjan Gogoi had a series of important cases to hear, the very timing of the sexual harassment charges against him becomes suspect. Even if one agrees that the initial reaction of the judiciary – a bench presided over by the CJI himself to hear the case – was inappropriate, they have made enough amends. A panel of senior-most judges has been constituted to hear the complainant’s grievances. But she has withdrawn herself. She claims she wanted the proceeding to be video-recorded, but the whole reason it isn’t being video recorded is to ensure the privacy of the woman is kept intact.
She has thorough knowledge of the law, and should’ve known how procedures work. If she didn’t trust the judiciary, why didn’t she just send her affidavit to the President instead of sending it to 22 senior judges and to the media?
She is now claiming she doesn’t feel a fair trial will be meted out to her. This way, judiciary won’t ever be able to function because someone or the other will accuse respected judges of prejudice.
SC needs to show it has procedures in place to respond to different kinds of crisis
Advocate and member, Women in Criminal Law Association
The only way the Supreme Court can regain its credibility in the present scenario is by setting up an inquiry committee that is in line with the best international practices followed in cases of sexual harassment and by incorporating provisions encapsulated in the POSH Act and the Vishaka guidelines.
This would require specific steps to undo the tremendous inequality and imbalance in power in the positions of the complainant and the respondent — the Chief Justice of India. The presence of external members is imperative when the person under inquiry is the administrative head of the institution and has extraordinary discretionary powers as an administrator. The complainant must be allowed to have legal representation, particularly when the CJI is indisputably a highly skilled legal mind and the complainant has no experience as a lawyer.
To claim institutional credibility, the Supreme Court needs to demonstrate that it functions as an institution – that it is deliberative and takes careful decisions with the judges acting in consultation with each other; that it does not act in a knee-jerk manner but has procedures in place to respond to different kinds of crisis; that it values accountability and transparency and applies the same strict standards of inquiry into allegations of misconduct that it enforces for any other institution. The Supreme Court needs to walk the talk. Soon.
By Fatima Khan, journalist at ThePrint.
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