Since the infamous Saturday morning emergency hearing in the Supreme Court on an “issue of great public importance”, several legal and political commentators have raised noteworthy concerns over the apparent absence of due process, and the possiblity of abuse of the office of the Chief Justice of India.
Another aspect of the Court’s approach that is disturbing is that, in its attempt to discredit the complainant, the Court and the law officers representing the Central Government, dressed the issue in the constitutional language of ‘judicial independence.’
Neither the judges nor the law officers representing the Central Government discussed the substance of the allegations raised in the complainant’s affidavit, or how the allegations would be inquired into.
Instead, the focus was mainly on how the incident represents an ‘attack’ on the independence of the judiciary. This view was then echoed by the Chairman of the Bar Council of India in a statement, and the Finance Minister on his website. The Finance Minister, in fact, claimed that “a mass intimidation of judges is on”. This approach suffers from two fundamental flaws that command a critical assessment.
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How Does A Sexual Harassment Allegation Automatically Threaten Judicial Independence?
First, how does raising allegations of sexual harassment against an individual judge threaten the independence of the institution? For such an allegation to amount to a threat to judicial independence, there would have to be some connection between the individual and the institution – apart from the fact that the individual happens to be a member of the institution.
One might argue that the raising of false allegations against a judge could be used as a tactic to prevent them from taking on judicial work, and false allegations could be used as a general strategy against judges whose ideology or integrity poses a problem for stakeholders seeking to achieve a particular political outcome. For example, in this particular case, it might be argued that these allegations are a ploy to preclude the CJI from hearing several high-stake cases that are likely to have an impact on India’s up-coming elections.
The flaw in immediately construing allegations with respect to sexual harassment against an individual judge, as a threat to the judicial independence of the judiciary is that, such a view proceeds on the premise that allegations of sexual harassment are necessarily false.
In this case, it seems unreasonable to presume that. The allegations made by the complainant are rather complex, and are seemingly reflected in a series of documents bearing the imprimatur of the Supreme Court administration. Without any detailed inquiry or investigation, it is impossible to dismiss the allegations as necessarily false, and to do so constitutes a violation of due process that the complainant is entitled to.
Therefore, it is not surprising that several lawyers associations, such as the Supreme Court Bar Association, the Supreme Courts Advocates-on-Record Association and the Women in Criminal Law Association, have issued powerful statements against the emergency hearing held on Saturday.
What About Checks and Balances?
Second, it must be asked on what basis some individuals representing the government – both within and outside the courtroom – readily argued that the allegations raised against the CJI constitute an attack on judicial independence. As per news reports, this was raised by the Solicitor General of India during the emergency hearing on Saturday, and a similar view was later taken by the Finance Minister on his website.
Just as the judiciary is supposed to play a check on the government under the Constitution, the government is supposed to play a check on potential abuse of power by judges. This check is especially crucial in this case, where the judiciary would not have an established internal mechanism to check and investigate allegations of misconduct levelled against the Chief Justice.
This is because it would be typically the Chief Justice who acts in his administrative capacity to constitute such a mechanism, to inquire into such misconduct. For individuals representing the government to assert that the allegations against the CJI are false – without demanding an impartial inquiry through proper channels – jeopardizes the system of checks and balances.
How the Language Of ‘Judicial Independence’ Can be Used to Distort a Case
The problem posed by the uncritical support offered by the government gets compounded at a another level. The government is the most frequent litigant before the judiciary, and has a major stake in how it functions, including the assignment of cases and how they are decided. When the government does not seek an impartial inquiry into serious allegations against a judge, avenues open up for the people to legitimately question whether the concerned judge could still remain nuetral, vis-à-vis the government.
Given the wide powers enjoyed by the CJI within the SC, this would open up avenues for an intimidatingly large number of questions over the functioning of the Indian judiciary.
It is thus ironic, that the easy recourse to the “threat to judicial independence” in this case, has itself endangered judicial independence. The points above highlight how the language of “judicial independence” can be used to distort a case, and lead us away from confronting important concerns thrown up by the case. We must focus on those concerns.
- How can we find out if the allegations are false?
- What if the allegations are not false?
- Does the victim’s right to access to justice deserve to be ignored owing to possibilities of other false allegations?
- Can a mechanism can be put in place for an inquiry to be carried out by an independent committee efficiently and without delay?
- What if an inquiry committee must give preliminary findings before judicial work is taken away from a judge?
- What are the possible measures that can be instituted to deter politically motivated allegations of sexual harassment?
Perceived Fragility of ‘Judicial Independence’
Instead of debating these questions, we are being asked to question the credibility of the complainant as well as the “institutional disruptors” who broke the story.
A view that sees allegations of sexual harassment as necessarily linked to judicial independence, prevents us from asking the right questions and evolving attendant solutions, and instead, misleads us to the conclusion that allegations of sexual harassment should never be raised against sitting judges.
This view of the fragility of judicial independence is now rather familiar. Earlier this month, in the case concerning whether the judiciary’s decision on judicial appointments should be subject to the Right to Information Act, the government argued that making the judiciary amenable to the RTI Act would destroy “judicial independence”, without explaining how lack of transparency is a necessary facet of the independence of the judiciary.
Similarly, in contempt of court proceedings, it is often asserted that criticism of judgments can compromise confidence in the judicial system, and therefore interfere with the “due administration of justice.” However, effort is rarely made to substantiate how all such criticism does in fact interfere with the due administration of justice.
On the contrary, it could well be argued that the use of judicial independence as a shield to prevent inquiries into the functioning of the judiciary (and judges individually) is likely to have a more detrimental impact on public confidence in the judiciary.
It is quite ironic for the judiciary to take the view that a clear look at how it takes important administrative and substantive decisions might reduce its credibility as an independent constitutional organ. The SC has itself consistently noted that the structure of our Constitution mandates that public scrutiny be the rule, and secrecy be the exception. For instance, in SP Gupta v. Union of India (1981), the Court held:
“… It is only through exposure of its functioning that a democratic government can hope to win the trust of the people. If full information is made available to the people and every action of the government is bona fide and actuated only by public interest, there need be no fear of "ill-informed or captious public or political criticism …”
Problems With Easy Recourse to ‘Judicial Independence’ Argument
It is important to remember that the judiciary consists of non-elected individuals. Its power as an institution – in terms of issues of governance – has been amassed over time, and is predicated on the trust of the people. Judicial decisions on the importance and need for openness and transparency ought to be applied with equal – if not greater force – to the judiciary.
Seen in this context, it becomes clear that easy recourse to “judicial independence” as a means to reject investigation into the functioning of the judiciary is misleading, and can in fact, be counter-productive.
To be clear, we are not saying that a sexual harassment claim can never amount to a threat to the independence of the judiciary, but that the questions we have raised above, need to be asked in order to ascertain whether such a claim truly is a threat to judicial independence.
It is not enough to assert that judicial independence will be at risk whenever any matter related to the judiciary is sought to be debated. Instead, mechanisms must be evolved to ensure due process to both parties, where protecting judicial independence is one of the factors involved. Thus, any committee that undertakes an inquiry into the allegations must not let the question of judicial independence eclipse the inquiry.
(Jahnavi Sindhu and Vikram Aditya Narayan are advocates based in New Delhi. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
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