SC Panel’s Clean Chit to CJI Gogoi Sadly Comes as No Surprise
The response to the allegations of sexual harassment against the Chief Justice has been problematic from the start.
(On 16 March, President Ram Nath Kovind nominated former Chief Justice of India Ranjan Gogoi to be a member of the Rajya Sabha – to be one of the 12 President’s nominees with special knowledge/practical experience. This article is being republished from The Quint’s archives in light of this development.)
“The In-House Committee has found no substance in the allegations contained in the Complaint dated 19.4.2019 of a former employee of the Supreme Court of India.”
With this economical use of words, the Supreme Court inquiry committee headed by Justice SA Bobde gave a clean chit to Chief Justice of India Ranjan Gogoi, and firmly closed the door on the allegations of sexual harassment against him by a former junior court assistant.
The report of the three-member panel, which also includes Justices Indu Malhotra and Indira Banerjee, was completed on 5 May and forwarded to the next most senior judge (which should mean Justice NV Ramana) and also to the CJI – but it will not be made public.
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A Series of Unfortunate Events
It’s been a draining, despair-inducing couple of weeks for not just those associated with the courts, but the people of India as a whole – and its women in particular.
Immediately after the allegations went public on 20 April, we watched in amazement as the Chief Justice utilised his unique position to set up a special bench of the Supreme Court that included himself, and then proceeded to conduct a hearing where he defended himself and claimed the allegations were part of a “larger conspiracy”.
Two days later he set up another special bench headed by Justice Arun Mishra to continue looking into this threat to the independence of the judiciary. Details of the threat were fortuitously provided by advocate Utsav Bains who claimed he had proof of this “larger conspiracy” and submitted a slew of affidavits to the court in sealed covers that had the judges summoning heads of the Delhi Police, CBI and Intelligence Bureau to their chambers to urgently take action.
While all this was happening, there was still no word on any probe into the allegations of sexual harassment and intimidation made by the complainant.
The public narrative had been hijacked, refocused on the alleged conspiracy to frame CJI Gogoi. This was not just thanks to the comments of CJI Gogoi, but also the public stances on the issue taken by the Solicitor General and Attorney General of India, the Bar Council of India, and Cabinet minister Arun Jaitley – without any investigation or inquiry, one might add.
By the time the Justice Bobde panel was set up on the evening of 23 April to actually look into her complaint, the message from the establishment was clear: Not only would the allegations be doubted (as is wearyingly inevitable in such cases), the weight of the judiciary and the executive would be behind the accused, and conspiracy theories were more of a priority than the complaint.
This litany of missteps was hardly likely to inspire any confidence in women observing the whole thing, let alone the complainant. The subsequent constitution of the three-member committee, with two male judges on it, presided over by a male judge and made up of sitting judges rather than retired judges (as the complainant had requested), certainly didn’t help improve things.
One thing that has often been lost in all of this but also didn’t help make the panel reassuring is that the head of the panel, Justice Bobde, is someone next in line to become CJI – for which to happen he will need to be recommended by the very person he is investigating.
Even though Justice Ramana recused himself after the complainant raised concerns about his presence on the committee, the inquiry always looked like it would raise more questions than answers when Justice Bobde clarified that neither party would be allowed to bring a lawyer. Again, the complainant had specifically requested this, citing the power differential between her and the CJI as well as the three judges, but again, her request had fallen on deaf ears.
And continued to fall on deaf ears when she raised the request during the hearings, where the judges failed to provide her with a copy of what was being recorded as her statement, and also refused to inform her of the procedure the inquiry would be following.
It was no surprise, therefore, when the complainant decided she would no longer participate in the inquiry after three hearings.
The procedural controversies from the very beginning of this whole sordid saga had grown and grown till they almost overshadowed the allegations themselves, so it was understandable that she felt she would not get justice by working within that framework.
The panel decided to continue its inquiry ex parte, and CJI Gogoi attended at least one hearing where he presented his defence. And so we come to the conclusion announced on Monday: That there is no substance to the allegations.
An Inescapable Conclusion?
When the response to the allegations had so little regard for procedural propriety or even the principles of natural justice (hello there ‘no man shall be a judge in his own cause’ and ‘right to a hearing’), could we really have expected a different result?
Not that we even know what the result really is here. The committee isn’t making its report public, which means we can’t even know for certain if the complaint has been found to be false or just unsubstantiated. There’s a wide spectrum between the two, and a finding by the committee that there is insufficient evidence to hold the CJI guilty can hardly be taken to mean that she made up the claim.
With the whole drama of the conspiracy claims and the Justice Patnaik inquiry to look into Utsav Bains’ conspiracy theory, clarity on whether or not the committee thinks the allegations are false increases in significance.
And yet clarity on this is the last thing we’ll get.
The notice on the court website cites an old decision of the apex court in Indira Jaising vs Supreme Court of India (2003) to claim that the report of a committee constituted under the ‘In-House Procedure’ isn’t to be made public. Jaising has actually contested the use of this precedent to justify keeping the report secret, given it came before the Right to Information Act 2005.
Justice KM Joseph argued that the RTI Act changed the position on transparency in India for the better as recently as 10 April in his Rafale review interim order, so she does have a point, but it’s still very unlikely that the judges will change their mind and release the report anytime soon, despite the public interest.
At the end of the day, the ‘In-House Procedure’ is king here, and the In-House Procedure leaves a lot to be desired when it comes to good sense and obligations in the public interest.
This is a procedure, after all, that does not contemplate the possibility, at all, of a complaint of misconduct against the Chief Justice of India, as all complaints against Supreme Court judges are to be evaluated by the CJI, who has the final say over what is to be done. Even the reports of the in-house inquiry committees are considered “preliminary in nature, ad hoc and not final” and are meant only to advise the CJI on what to do next.
This is a procedure, after all, that allows inquiry committees to formulate their own rules of procedure, with no strings attached. Which allowed Justice Bobde to specify that the complainant couldn’t be allowed a lawyer and that it was ok for them to not inform her the procedure the inquiry would follow. And which also allowed the panel to proceed ex parte after the complainant decided to opt out of it.
That these decisions rendered the process unfair was pointed out not just by many commentators and women advocates, but also (reportedly) by Justice DY Chandrachud of the Supreme Court. Justice Chandrachud is supposed to have written to the judges on the inquiry panel counselling them against proceeding as they were, asking them instead to allow the woman to bring her lawyer along (or at least appoint an amicus curiae), and to appoint a retired woman judge as an external member.
This clearly shows that the future CJI (as per custom) clearly understood how this probe could affect the reputation of the Supreme Court as an institution in the minds of the public, and how important it was that the inquiry be conducted in a manner that shows they are “fair-minded” and “even-handed”.
Because that is indeed what was at stake here. Regardless of the merits of the allegations against CJI Gogoi, it was crucial that the manner in which the allegations were investigated was fair and inspired confidence. Confidence that would allow other women facing sexual harassment at the court and elsewhere to come forward and know that they would at least be given a fair hearing, that the case wouldn’t be pre-judged, that the lessons of the #MeToo movement had been learned.
The in-house committee, however, doesn’t seem to have got that memo. And when Justice Chandrachud reportedly sent them the memo, it decided to ignore or reject the memo, and instead exonerated the CJI in no time.
Which, sadly, is the only result that we should have expected, after everything that came before. Did we really think that a process so opaque, so devoid of a level playing-field, so oblivious to conflicts of interest and the lack of natural justice, could ever have yielded a different result? The tragedy of it all is that the panel may well have made an incredibly well-reasoned decision, but we’ll never know that.
Nor will the complainant, by the way. If you needed any further proof of the flaws in this process, here it is: The committee won’t send her a copy.
So What Happens Now?
The complainant has released a statement in which she has said she is “not just highly disappointed and dejected” with the committee’s decision, but that she also feels that “gross injustice has been done to me as a woman citizen of India.”
Given everything we’ve said above, that’s hardly a surprise.
On top of all that, this decision isn’t the end of the ordeal for her and those who helped her. The Justice Patnaik inquiry into Utsav Bains’ claims of a plot to frame the CJI will now begin, and this could be influenced by any findings of the Justice Bobde panel that the complaints were false – findings that the complaint won’t even be able to rebut since they are not being conveyed to her.
There’s also another petition filed by advocate ML Sharma, asking for action to be taken against the lawyers who assisted the complainant, including, according to Prashant Bhushan, Shanti Bhushan, Vrinda Grover, Indira Jaising, Kamini Jaiswal, and Prashant Bhushan himself. On Monday, Justice Bobde surprisingly agreed to hear Sharma’s petition.
We can only hope that the way it proceeds will be fairer and more accordance with the rule of law and propriety than what has come before.
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