You have been vocal in your criticism of what is happening in the Judiciary today. Why do you feel the need to intervene, through your public statements or otherwise, every time the judiciary stumbles?
As a practising lawyer of more than 50 years, I feel committed to the institution of the judiciary. It is literally the court of last resort when we face victimization at the hands of the executive. It is therefore very important to maintain the credibility, integrity, and the functioning of the institution in accordance with the rule of law.
People like you and me have nothing to depend on judges and the judiciary to protect us when we are victimized. This is the reason why when I could see the judiciary crumble before my very eyes, I feel we must intervene to help its course correct and re-affirm its commitment to the rule of law.
It is not my intention “destabilize” the judiciary or any individual. It is my belief that strict compliance with the rule of law will only enhance the credibility of the judiciary.
After all, if a sitting Chief Justice is not guilty as he claims he is, it is important that his version be heard in a manner prescribed by law and a decision taken by the in-house committee in accordance with the law and be made public.
There have been many cases of sexual harassment against judges before. What is the difference in this case?
There is nothing that makes this case different. I agree that there have been many cases. It seems to me that sexual harassment in the judiciary is endemic. In terms of complaints, lawyers have complained, sitting judges have complained, and employees of the court have complained. It is just that we have blinded ourselves to these complaints in the past and there is a conspiracy of silence in relation to these cases. Therefore, what is different is only that we have managed to break the silence around the issues of sexual harassment alleged against judges. It is true that till date no judge has been found guilty of sexual harassment, but it is equally true that few people in authority have been found guilty of sexual harassment. This is what explains the birth of #MeToo movement.
There are some important reasons for this. One of them being that sexual harassment normally happens behind closed doors where there is no witness. The victim faces a crisis of credibility and is often not believed when the harasser is in the position of power. The judiciary enjoys impunity over and above the ordinary individuals in as much as there are gateways to making a complaint such as obtaining a sanction from the appropriate authorities before any complaints can be filed.
So what exactly are the problems in the existing procedure?
When it comes to the Chief Justice of India, the issue is complicated beyond belief for the reason that he is first amongst equals. It is therefore difficult to discuss the proposition that he would be judged by his peers, no matter they be women. It will forever remain the fact that he is first among equals, and his relationship with them will be more than cordial. Very often he would be responsible for their appointment in court as a part of the collegium.
What changes would you like to see?
I would like to reverse the damage done to the rule of law by questioning the legality of various orders passed on the administrative side by the Supreme Court of India, which are contrary to the rule of law in as much as the orders were made by the Chief Justice of India (Ranjan Gogoi) in his capacity as master of the roster when he was himself accused of sexual harassment. It is not possible for a person accused of sexual harassment to pick and choose the composition of the bench which will hear the case.
In your view how should the Justice Bobde in-house enquiry have been held?
In my view, the composition of the committee must be in a participatory manner giving the complainant the choice to nominate one member onto the committee, giving to the person complained against the right to nominate one member, and the two of them choose a third member. This is a well-known procedure in the law of arbitration and I fail to understand why it can’t be applied in a case of such profound importance.
If commercial disputes can be settled in this kind of participatory manner, why can’t an enquiry committee similarly composed so as to instil confidence in the decision-making process? It is not my suggestion that such a committee should function under the arbitration process. Let us be clear that any decision under the in-house committee is capable of challenge. Being an administrative committee, it is not only capable of a challenge but leaves open to the affected parties to approach a competent court of law, civil or criminal. At the end of the day, an in-house committee is only an in-house committee. Participation in an in-house committee is purely voluntary. The complainant has an undisputed right to participate, leaving it open to her to choose any competent forum.
