We have, since 20 April 2019 been witnessing strange and troubling times. In all the troubles we have been through in the recent past in this country, despite very mixed results, the one bastion that stood undiminished and full of hope and constitutional imaginings was the Supreme Court of India. There have been good judgments and bad, there have been well-reasoned ones and others not so seamless or robust in constitutional articulation, but the balance has tilted without doubt in favour of the court as the institution that keeps the idea of justice embodied in the Constitution, in view and within reach of every citizen.
On April 19, a former employee of the Supreme Court of India brought charges of sexual harassment against the Chief Justice of India (CJI) – she mailed copies of her affidavit to all the sitting judges of the court, demanding a fair enquiry and due process. Clearly, this was a very simple demand placed on the majestic court. There is a detailed account of how the harassment is alleged to have started, culminating in her dismissal and the dismissal of her brother-in-law from employment in the Supreme Court on grounds that would have prompted this very court to slap hefty compensation on any other employer in its place. There were also other details of harassment by the police and a forced appearance before the wife of the CJI.
A turning point in our constitutional history
After the Rupan Bajaj and Vishaka cases, the Supreme Court had heard innumerable petitions setting out guidelines and procedures for all workplaces – government and non-government, mandating compliance. This was followed by the Prevention of Sexual Harassment Act (POSH) in 2013, but by this time, the idea that sexual harassment constitutes a violation of the dignity of women in the workplace had got firmly entrenched in the bedrock of constitutional common-sense, with the Supreme Court playing a central role in receiving the learnings of women’s groups since the late 1970s and absorbing it into constitution-speak.
The refusal of the CJI to allow due process in this matter and the refusal of the 27 other judges of the court to publicly insist that justice must be done is therefore not a simple matter. In 1980, we were on the streets in front of the Supreme Court screaming for justice in the case of Mathura. Three law professors of the University of Delhi wrote an open letter to the Chief Justice of India, which is now one of our rare constitutional treasures. But 2019 is not 1980. A thousand women demonstrating in every city and town asking of justice in the case of Mathura in 1980, is very different from all of us pouring into the streets today. We are at a very different point in our constitutional history.
Even if we set aside the affidavit of the complainant for a second, the official response issued by the Secretary-General on April 20is deeply offensive to constitutional sentiment:
“The allegations regarding 11 October 2018, as well as other allegations as can be discerned from your emails, are completely and absolutely false and scurrilous and are totally denied.
… The motive behind these false and scurrilous allegations is obviously mischevious (sic). As referred to in your letter, there is a criminal case pending against her, where very serious allegations have been made, of her having taken a bribe to assure employment in the Supreme Court of India. It has been learnt that there is an application for the cancellation of bail earlier granted to her, which is listed for hearing on 20.04.2019 on account (sic) of her having made threats to the complainant of the said case.
It would be extremely relevant to mention that the concerned individual (sic) and her family have criminal antecedents…
It appears that these false allegations are being made as pressure tactics to somehow come out of the various proceedings which have been initiated in law, against her and her family, for their on wrongdoings. Its (sic) is also very possible that there are mischevious (sic) forces behind all this, with an intention to malign the institution.”
This statement comes at the end of a day of bizarre proceedings in the court before a bench of three sitting judges (including the CJI-Respondent) of which the Attorney General and Solicitor General are part: “to deal with a matter of great public importance touching upon the independence of the judiciary.” The CJI-Respondent through this action pre-empted any deliberations in the court by judges who had received the affidavit, by hastily constituting a bench of which he was part, but whose order he did not sign – both of which are bad in law and procedure.
To make unsubstantiated derogatory and defamatory remarks before any investigation or inquiry into the matter reeks of the methods of public morality that this very court has uprooted unequivocally. It can scarcely be forgotten that this is a complainant who has carefully set out her case supported by documentary proof and specific details of time, place and nature of the harm suffered in a sworn affidavit.
A challenge to the impeccable character of the judiciary
It can scarcely be argued that the Secretary-General, located as he is on the administrative side, need not be conversant with the language of constitutional morality — it is reasonably presumed that this response had the full approval of the CJI-Respondent. 2019 is not 1980. It is no longer a question of ‘how can a CJI conduct himself in this manner’. This is also no place to hold forth on the “impeccable” character of the apex judiciary nor the time to counsel the court to adhere to the procedure from which it will surely emerge honourably.
On the contrary, the challenge is to safeguard the impeccable character of the judiciary – and every individual judge within in – by calling the institution to account and demanding compliance to constitutional principles. The challenge also is the insistence that no complainant shall be pre-judged merely because she is powerless and has decided to speak truth to power – in this case, the complainant is a Dalit woman. It is now our assertion that anyone with such a poor understanding of the fair procedure, the question of dignity and constitutional morality, is unfit to lead the highest court in the land.
The in-house committee was constituted by the CJI-Respondent after a public uproar. There was no external member and the complainant expressed misgivings about the presence of one judge on the committee. This is a subjective judgment that may be easily accommodated – as it was. In his letter announcing his recusal, Justice NV Ramana stated unequivocally that there was no basis for the fears expressed by the complainant. He went on to assert:
“My decision to recuse is only based on an intent to avoid any suspicion that this institution will not conduct itself in keeping with the highest standards of judicial propriety and wisdom…Let my recusal be a clear message to the nation that there should be no fears about probity in our institution, and that we will not refrain from going to any extent to protect the trust reposed in us. That is, after all, our final source of moral strength.” (emphasis added)
Long term damage
What are the steps the court has taken to “conduct itself in keeping with the highest standards of judicial propriety and wisdom”? The question is not any more about the facticity of the complainant’s affidavit. That still remains to be investigated after the matter of due process is reinstated fully. The derailing of the procedure, the summary rejection of her request for a lawyer/support person, the absolute opacity of judicial power and arbitrariness in this case and the total lack of even a minimal sense of accountability is beyond comprehension.
Justice AP Shah observed that like ADM Jabalpur, this case has caused long term damage to the court as the site of constitutional justice. The question before us today is different. ADM Jabalpur was possible under conditions of the Emergency with the capture of institutions of justice by a rogue government. Even there we had strong dissenting voices outside and a strong dissenter inside the court, Justice HR Khanna, who was reinstated with full honours by this very court in Puttaswamy. When governments suspend fundamental rights, there is hope that there will be one judge who may need to wait 40 years to be resurrected – but there will be one judge to stand unflinching on the side of citizens and their fundamental rights.
When the CJI suspends fundamental rights, and there is a deafening silence in the court on this matter, what hope is there for a future resurrection? Also, after Puttaswamy, why must we wait another half century? 2019 is not 1975.
In the case of Romila Thapar v. Union of India, we saw lawyers with a long and impeccable track record as human rights defenders being arrested for practising their profession with integrity. Neither Vishaka, nor ADM Jabalpur, nor Puttaswamyto name just a smattering of cases emerged in the judicial mind from a vacuum. The decisions were the result of months and years of tirelessly pushing for a progressive understanding of the Constitution and the questions of liberty and dignity – by “activist lawyers” and human rights defenders at enormous personal cost. This is part of the rich history of civil liberties advocacy in this country where movements played a critical role in educating the judiciary on rights and new possibilities of constitutional interpretation.
A slippery slope of arbitrariness
To allege a “conspiracy” by lawyers providing support to the complainant and accuse them of attempts to de-stabilise the court and order investigations against them is to hurtle down the slippery slope of arbitrariness. In fact, that is the only road that could open up when the first step was taken by the CJI-Respondent on April 20. He had by that single action foreclosed all constitutional routes, as we have seen.
As an aside, is the court unaware that there is an insurgent understanding of conspiracy that has developed through human rights praxis in this country? That conspiracy no longer needs to be whispered or communicated in the dead of night through signals and coded (even feminist activist) tongues.
Conspiracy is the exercise of absolute power by those in positions of unquestioned dominance to silence any semblance of resistance to the rules of power. To be aware of one’s own power and to step back from it at times like this is an essential quality of a judge. The anger at the conduct of the CJI-Respondent is not an attack on the judiciary. It is a citizen assertion to safeguard the court from capitulation to the arbitrary whimsicality of one man. For we can scarcely forget that the Supreme Court is part of our constitutional commons. It belongs to us all – lawyers, judges and citizens – and we hold it in trust.
Where do we go from here? Four judges of the Supreme Court, the CJI-Respondent among them addressed a press conference in a powerful expression of judicial dissent in January 2017. The Supreme Court in 2016 held that three particularly significant judicial dissents are in fact good law. The judges of the Supreme Court are protected by Article 19 rights to express dissent and freedom of conscience. Justice DY Chandrachud was reported to have given a letter to the in-house committee led by Justice Bobde that the views expressed therein also conveyed a sense of disquiet among at least 15 judges of the Supreme Court.
We have reached a critical moment in our collective travels with the Constitution, where an adverse inference will be drawn from any further silence. There must be an open discussion that is recorded and made publicly available on the question of procedure and fair treatment and adherence to the rule of law in this case. And this open discussion must be followed by the constitution of a committee in accordance with the statute that protects women from sexual harassment at the workplace. The records and proceedings must be made public. The dignity of the court at this point rests in revisiting this entire issue with judicial humility, acknowledging and righting the wrongs. That is the only way the constitution may be redeemed.
(Kalpana Kannabiran is Professor & Director, Council for Social Development, Hyderabad. Views expressed are personal.)