“If only wishes were horses, beggars would ride”
(Scottish proverb, 1628)
An anganwadi worker, Bhanwari Devi, was gang-raped by men of a higher caste while she was out on her work. In the criminal trial that followed, all the men were predictably acquitted. In fact, one of the outrageous defences taken was that they were men placed in a higher social status and it was inconceivable that they would engage in an act of sexual nature with a woman of such low station.
Bhanwari’s tears ensured that the cry of India’s women for a safe workplace reverberated in India’s highest Court. The Court did not disappoint and its landmark guidelines on addressing sexual harassment at the workplace laid down in Vishakha’s Case ensured that an issue, hitherto brushed under the carpet, was mainstreamed into India’s public life.
The Court had exercised its inherent powers under Article 142 of the Constitution of India to lay down “guidelines” to fill in the legislative void, clarifying that these norms would give way to the law which Parliament would frame in future.
Until Parliament got around to doing so by enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (2013 Act), several institutions, public and private, modified their internal norms to institutionalise “sexual harassment” as a “misconduct”.
While like many of the rushed legislation in the dying days of the UPA Regime—the law on unorganised workers, on street vendors and the right to food, to name a few—the 2013 Act leaves much to be desired and suffers from glaring inconsistencies.
One such deficit is the ambiguity on whether it would apply to Constitutional post holders such as the President, Vice President, Speaker, and justices of Constitutional Courts. Section 28 of the 2013 Act, further complicates matters by saying that this law shall operate in addition to other applicable laws.
Is In-House Procedure Sufficient for Sexual Harassment Complaints?
This becomes vital when holders of such office sadly stand accused of sexual harassment as happened with Shri Rajan Gogoi, Member of the Rajya Sabha, when he was holding the post of the Chief Justice of India (CJI). Judges of constitutional courts enjoy protection from removal. Even their conduct cannot be discussed in Parliament unless a motion of impeachment is being considered.
In fact, the Judges Inquiry Act, sets out the procedure for an inquiry before an impeachment is taken up. When cases of judicial misconduct cropped up over time, the Supreme Court evolved an “In House Procedure”. Under this procedure, the CJI would constitute a committee of judges which would informally inquire into such complaints.
The jury is still out on whether the Court is out of the ambit of the 2013 Act and whether the “In House Procedure” is an efficacious substitute.
What Happened When CJI Gogoi was Accused of Sexual Harassment?
A lady employee of the clerical staff of the Court, who was then assigned to the home office of Shri Gogoi, shook the nation when she publically accused the holder of India’s highest judicial office of sexually harassing her and then contriving her expulsion from service of the Court. If this was not enough, she complained that her husband and relations were also being targeted in an effort to silence her.
The public attention on this scandal was ironically invited by the CJI himself when he inexplicably sought to hold court on a Saturday to address a “MATTER OF GREAT PUBLIC IMPORTANCE TOUCHING UPON THE INDEPENDENCE OF JUDICIARY - MENTIONED BY SHRI TUSHAR MEHTA, SOLICITOR GENERAL OF INDIA” and preside over the same.
The order passed on 20.04.2019 was not signed by the CJI. Thereafter another bench took over the hearing and developments got even more bizarre. One lawyer, Utsav Bains, claimed he had explosive information that would substantiate a deep-rooted conspiracy to embarrass the CJI and destablise judicial independence.
Parallel to this, the CJI submitted himself to the oversight of his successor Justice Bobde who constituted a committee of three justices of the Court including himself and two lady justices Indira Bannerjee and Indu Malhotra. Present CJI Ramana had recused from this Committee.
This committee exonerated the CJI and yet the complainant was not permitted any legal assistance to represent her case before the Committee nor was a copy of the report made available to her.
Bizarre Twists and Turns in the Case Continue
The twist and turns were not over. The Court dealing with the suo moto case constituted a single member committee of Justice AK Pattanaik to inquire into the “conspiracy” angle.
In the public domain some brave journalists hinted that a “senior bureaucrat” was in “settlement” talks with the complainant. The CJI at that time was hearing some of the most important cases affecting the fortunes of the regime such as the PIL seeking inquiry into the ‘Rafael Deal’ and the Ram Janmabhoomi Dispute.
The developments that followed, skeletally narrated, would read like this-the complainant withdrew her complaint-her husband was reinstated in the job-the CJI decided all these cases in favour of the government-the CJI retired-the lady was given her job back after a month-the CJI was nominated to the Rajya Sabha.
Even if it is conceded that these events are random and unconnected, for an institution which for decades has sermonized to the world the norm that “Justice must not only be done but be seen to be done”, the damage done was permanent and irreversible.
We are still not done with the bizarre. Inexplicably the first and only suo moto case of the Top Court involving “great public importance touching upon the independence of the judiciary” received a quiet burial on 18.2.2021. The “public,” sadly, was not given access to the report of Justice Pattanaik who had inquired into Gogoi’s claim that the sexual harassment charge was a motivated attack on the independence of the judiciary.
Questions to be Asked About Sexual Harassment Case After Pegasus Leaks
It is in this backdrop that the Pegasus revelations are jaw dropping. In the galaxy of celebrity journalists, businessmen and politicians, what sticks out as a sore thumb are the 11 phone numbers belonging to the complainant and her family members. Some unknown force, as the government has denied any involvement, has spent about Rs 1.5 crore per phone on 11 phones to spy on the accuser of the CJI and her near and dear ones!
Many questions arise.
What was the motive behind expending such a large sum of money to spy on a clerical employee and her family? Was the motive to seek out information which would embarrass the CJI or make him vulnerable to blackmail or dictation? Was the motive to pressurize the complainant or make her vulnerable to settlement or surrender or compromise?
Who are behind this surveillance? Are the actors State or Non-State?
Who were aware of this surveillance? Was the CJI at any time aware of this, was it undertaken with his direct or tacit approval? What would have been his reaction to such an action? If indeed he was, or at any stage became aware, why has he himself not brought this into the public domain?
Has Justice Pattanaik in his report been able to get a whiff of this mischief?
In every possible scenario, this act of snooping has impacted upon the “independence of the judiciary” and is indisputably a matter of “great public importance”.
The fact that a complainant of sexual impropriety by the sitting CJI was so extensively snooped especially when he was in the process of deciding several sensitive cases having larger political ramifications, in normal times, would have provoked an outrage of Tsunamic proportions. The reactions predictably are muted. The Bar has hardly reacted. There is no concerted call for investigation and accountability!
In the light of the Pegasus scandal, would the Supreme Court make public the Pattanaik Committee Report or the Bobde Committee Report which exonerated Shri Gogoi of sexual harassment allegations, albeit with suitable redactions to protect the privacy of the complainant? After all the proceedings were outside the purview of the 2013 Act and the injunctions on publication may not strictly apply.
Would the Supreme Court reopen its suo motu “in the matter of great etc. etc.” case and examine the Pegasus angle to satisfy itself on not only that the judiciary was not compromised but also on what remedial/preventive measures should be put in place so that such acts do not recur?
Pegasus was this mythical Greek horse who arose out of the remains of Medusa, the woman with an ensnaring gaze and snake hair. As I said in the very beginning “if wishes were horses….”
(The author is a senior advocate practising in the High Court of Delhi and in the Supreme Court of India. He tweets @advsanjoy. This is an opinion piece and the views expressed are the author's own. The Quint neither endorses nor is responsible for them.)