In case you missed it, a woman came forward with sexual harassment allegations against a powerful man, which included testimony about having dealt with intimidation tactics and criminal charges for months. Would you like to venture a guess as to who got vilified in the Supreme Court of India today? Who out of the two was publicly decried for threatening the sanctity of the institution?
Spoiler alert: Not the man.
A junior court assistant at the Supreme Court of India wrote to 22 judges of the court on 19 April, testifying to sexual advances made by the Chief Justice of India, Ranjan Gogoi in October 2018, as well as the subsequent dismissal from her job, harassment of her family and finally, criminal charges being filed against them – one of them leading to verbal and physical abuse at a police station.
The entire allegation is horrific and can be read in detail here, but if anything could have made matters worse, it was the reaction that followed.
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Due process under the Sexual Harassment at Workplace Act (2013) dictates that in the event of such an allegation, the Supreme Court’s Internal Complaints Committee must inquire into the allegation and furnish a report within 90 days. The process must be confidential. The woman has asked for a special enquiry committee of retired Supreme Court judges to investigate her complaint.
Another spoiler alert: neither of those happened.
Conspiracy Theories and Character Assassinations
What did happen was a ‘special sitting’ of a 3-judge bench (including the accused, CJI Gogoi himself, and two male judges), to deal with a ‘matter of great public importance touching upon the independence of the judiciary’. What does a sexual harassment claim have to do with the independence of the judiciary, you ask? I’d love to know too.
Alright, what happened in the special sitting then? Did the CJI gracefully express grief at the allegations and announce an independent investigation by the ICC? Alternatively, perhaps an open court hearing while preserving the anonymity of the complainant? Perhaps recuse himself entirely and let the senior-most judges (after him) decide what to do? Get the female judges of Supreme Court involved?
You know where this is going, and the right answer is: none of the above.
What did happen was that the Supreme Court gathered its most powerful figures – the highest judicial officers and the legal officers from the executive, namely the Attorney General and Solicitor General, president and members of the Supreme Court Bar Association (all male, by the way) – and engaged in conspiracy theories before proceeding to character assassinate the accuser.
Pointing out her ‘criminal background’ and cases pending against her (reminder: possibly filed as a result of the harassment itself, in order to intimidate the accuser and her family), the CJI went on to point out his service to the country and his bank balance (?) to assert his innocence.
Whither Due Process?
How is the bank balance relevant? How does any of this refute the allegation that he put his hands on her, asked her to hold him, and demanded she text him every day? Leave your answer in the comments below.
Not only did this sitting violate the fundamental principle of no man being a judge in his own cause, it also blew all semblance of due process out of the water.
If that wasn’t enough, this pity party proceeded to wear tin foil hats and tut-tut at the ‘very serious threat’ to the independence of the judiciary, and how this will hinder good people from working in this office. Indeed, while it is undeniable that good people might want to stay miles away from sexual harassers, CJI Gogoi went in an entirely different direction to warn us of a ‘bigger plot’ to ‘deactivate the office of CJI’.
This howling at the moon was joined by the AG and SG, who decried these allegations as ‘blackmail’, stating that even they have been under attack for doing their jobs. By whom? How is this relevant?
Finally, after warning us that no judge will decide cases if this kind of attack happens, the CJI selflessly assured everyone that he, personally, will continue to function regardless. The judiciary is saved! Everyone go home.
To summarise, after the CJI dismissed the allegations as ones not worthy of a response, he gathered the most powerful legal figures of the country in the highest court of the land to give a shockingly terrible response. The response itself is nothing new – men have vilified the victim and pointed to their selfless service to humanity since time immemorial – but the manner and platform used is an egregious violation of due process.
What’s in a Name? And Who Cares About Procedure?
For starters, under what jurisdiction was this hearing convened? There seems to be no procedural basis for convening this bench. The matter was titled “In Re: Matter of great public importance touching upon the independence of the judiciary – mentioned by Shri Tushar Mehta, Solicitor General of India”, and the hearing is ostensibly that of a suo motu writ petition.
The writ jurisdiction of the Supreme Court is for redressing a violation of fundamental rights – whose fundamental rights are violated here? Who is suing whom? How is the accused on the bench?
Next, the court claims that no ‘judicial order’ was passed, but (a) it was, (b) every order passed by the court is a judicial order and (c) it very much was.
If you need more evidence of how sketchy this has been, despite the CJI presiding over the bench, the records deliberately omit his name – neither the Court order nor the record of proceedings mention his presence on the bench. So very gracious of the CJI to erase his name from the records after having used his office and the court to convene a ‘special’ hearing and cry foul of the allegations against him.
To cap that off nicely, the bench also urged the media to ‘show restraint’, so that the precious judiciary isn’t affected by ‘wild and baseless’ allegations. How do we know that the allegations are wild and baseless despite no investigation? You tell me.
An Abuse of Power?
“To defend democracy, we need not only independent judges and noisy journalists, but independent journalists and sometimes noisy judges.”Justice Gogoi, January 2018
Finally, setting everything aside, true allegations or not, legally sound or not, using your incredibly powerful platform to convene a judicial hearing is the worst thing an accused can do. The balance of power is already heavily skewed in such cases, and the Chief Justice of India using the Supreme Court to narrate his side of the story against a former junior court assistant screams abuse of power.
It implies a systemic complicity with the accused – that the powerful man will always have an audience, a platform, and can use his office, the hallowed portals of the court, to speak up and vilify anyone who dares speak against him.
By choosing to use a highly inappropriate and legally questionable formal hearing instead of a personal press conference, the message is clear – don’t speak out unless you’re willing to take on the might of the institution itself.
Not only does this harm the accused, it creates a chilling effect on people who have been harassed by those in power (and let’s face it, the number is endless) and gives a carte-blanche reassurance to those who have institutional might and a vast platform backing them.
Every judge dreams of setting a precedent that will echo for years to come, and here’s hoping that CJI Gogoi has not succeeded in this regard.
(The writer is a lawyer currently completing an MPhil in human rights law at the University of Oxford. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)