How does the Supreme Court respond when the highest judicial authority in the country – the sitting Chief Justice of India – is accused of sexual harassment and subsequently bullying the complainant through the police infrastructure?
On 19th April 2019, a former employee of the Supreme Court sent a sworn affidavit to twenty-two SC judges accusing the Chief Justice of India, Justice Ranjan Gogoi of sexual harassment and persecution. The former employee describes two incidents of molestation by Gogoi in her affidavit, both of which allegedly took place in October 2018, only days after he was appointed to India’s highest judicial office. “I am requesting the Hon’ble Judges of the Supreme Court to constitute a special enquiry committee of senior retired judges of the Hon’ble Supreme Court to enquire into these charges of sexual harassment and consequent victimisation,” wrote the complainant.
The complainant has backed the affidavit by sending the judges copies of video recordings of several incidents she refers to in the document—in particular, that a Delhi Police official accompanied her to the CJI’s residence in January this year, where she was asked to apologise to his wife. The videos also indicate that Rajnath Singh, the Union Home Minister, and Amulya Patnaik, the Commissioner of the Delhi Police, were made aware of the incident at least as early as 11 January 2019.
She writes that on two separate occasions, on consecutive days, the CJI touched her and embraced her against her will. During one such incident, “I was forced to push him away with my hands,” she states. The former employee further writes that Gogoi instructed her to not speak about the alleged incidents with anyone, and threatened her with dire consequences if she did so.
The complainant was subsequently dismissed from her employment. Later, her husband and one of her brothers-in-law – both employed with the Delhi police – were suspended on allegedly frivolous grounds. Finally, she herself was arrested in a case of bribery that was registered in March 2019 – almost three months after her dismissal from the Supreme Court. The bribery case was recently shifted to the Crime Branch, which has now moved the Patiala House Court to cancel her bail. On January 22, 2020, the complainant was reinstated at the Supreme Court of India, as per latest reports.
According to the Supreme Court’s “In-House Procedure” that sets out procedure to deal with allegations of sexual harassment, an Inquiry Committee must have taken cognizance of the complaint and initiated inquiry proceedings after giving notice to the respondent (the CJI in this case). However, that is not how the SC chose to respond to the allegation of sexual harassment.
On the morning of 20th April, a notice was issued on the SC website that a 'Special Bench' was being constituted to hold court at 10:30 am on the ‘mentioning’ by the Solicitor General. The notice stated that the purpose of the hearing is "to deal with a matter of great public importance touching upon the independence of the judiciary."
What ensued was the Chief Justice constituting a “special bench” of his own choosing, with him included on such bench, to respond to the complaint of sexual harassment. Such a move is beyond any know rule or principle of law—whether under the “In-House Procedure" or in the POSH Act or the Supreme Court Sexual Harassment Regulations. Furthermore, the constitution of this bench was a flagrant violation of an essential principle of natural law: ‘that no person should be a judge in their own cause.’ In an open letter, Advocates Ashish Goel and Gautam Bhatia said this was “nothing short of a travesty of justice.”
Replying to the allegations levelled against him, the CJI said in a statement that he would not stoop so low to even deny the charges. He added that independence of judiciary is under a very serious threat and there is a “larger conspiracy” to destabilise the judiciary. He defined the charges as "unscrupulous allegations” and pointed out that the complainant has a criminal background.
In a letter by the Women in Criminal Law Association (WCLA), a collaborative group for women in criminal litigation, several pertinent concerns were raised about the procedural contraventions by the CJI:
“Why was the respondent, while he was sitting in his official capacity as the Chief Justice of India as a presiding officer of a Special Bench, responding to personal allegations against him?”
“What fair process allows the case of the complainant to be prejudiced even before the start of any inquiry by allowing the respondent himself, in his official capacity and from his position of power, to declare mala fides against the complaint to the public at large?”
It is further astounding that neither the Solicitor General, nor the Attorney General (as law officers of the Government of India) pointed out these procedural breaches. “Why did the AG and SG, immediately align themselves with the Respondent-CJI (as may be gleaned from the records of the proceedings that are available on social media)? This immediate unwavering support for the respondent expressed by President of Supreme Court Bar Association without there having been any form of inquiry sends out a clear signal: that there is no space for a woman, especially a woman lawyer, to come out with her experiences of sexual harassment without having the doyens of the legal fraternity immediately turning upon her,” notes the WCLA letter.
The CJI repeatedly invoked the shield of “independence of judiciary” in order to evade accountability and concoct fears of a larger plot to “destabilise” the judiciary. However, it must be noted that the phrase “independence of judiciary” has generally been deployed to protect the judicial wing from undue influence of the executive. In the given case, however, both the executive and judiciary seem to be in mutual agreement that the allegations are mischievous and untrue.
Gautam Bhatia notes,
“What the CJI and his bench – along with the AG and the SG – did today, however, was to accentuate the already-existing power imbalance by a very public denunciation of the complainant and her motivations. This makes the prospect of a fair process remote at best, and farcical at worst.”
At the end of the hearing, the Special Bench passed an order observing as follows:
"Having considered the matter, we refrain from passing any judicial order at this moment leaving it to the wisdom of the media to show restraint, act responsibly as is expected from them and accordingly decide what should or should not be published as wild and scandalous allegations undermine and irreparably damage reputation and negate the independence of the judiciary.”
What was further surprising was that the CJI did not sign this order. Which raises the question of why the CJI sat on the bench in the first place? If the intention was to recuse himself later on, why were such elaborate comments in self-defense made previously?
It is also to be noted that the implicit impact of this order is to create a chilling effect in the media. It is to pre-emptively decry all complaints against the CJI as “wild and scandalous allegations” (although the complainant in this case has given a detailed account supported by evidence). This is another attempt at institutional silencing of complainants of sexual harassment. By this disguised gag-order, the court has set a terrible precedent on how to deal with complaints of sexual misconduct against highest judicial officers.
The judiciary’s instinctive response in this case reiterates two extremely sad realities of our legal and social environment: first, that procedure is a tool of convenience that is weaponized when it comes to harassing the vulnerable, but often forgotten when it is needed to confront the powerful. Second, that in spite of traces of a powerful #MeToo movement, our society’s first response to a complaint of sexual harassment is to still de-legitimize, shame, and silence the victim.
UPDATE (January 22, 2020) - News reports emerging out of India suggest that the woman making the accusation in this case has been reinstated at the Supreme Court of India. This is a developing story and updates will be provided here as and when they come in to keep this post updated. This information was not mentioned in the original article, which was published on April 28, 2019. The edited version of the article now mentions this fact.
This article has been updated to ensure accuracy. Updates are mentioned separately as well, in the section above.
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About the Author
Parth Maniktala holds a Bachelors in English from Hans Raj College, Delhi University, where he also served as the President of the Debating Society. He has been recognized as one of Asia’s top 10 speakers at the United Asians Debating Championship held in Cambodia. He has also been the chief adjudicator of the annual national schools debating championship of Nepal. Apart from debating, he has a keen interest in cinema and literature.