Sexual harassment complaint against CJI Gogoi: Constitutional offices must be subject to constant public scrutiny

[dropcap]I[/dropcap]F a constitutional system of government has to function, its participants must have an underlying respect for the rule of law. For all the actors and players in such a constitutional system of government are merely creatures of the law. There is no person that is above the law and there must be no person outside the protection of the law. Violate this principle and the constitutional system of government fails. 

Let me illustrate that with an example. India has three branches of government. We have the legislature that makes the law, we have the executive that enforces the law and we have the judiciary that resolves disputes. Let us say tomorrow the executive branch is ordered to do a thing by a court. The executive branch can just decide not to abide by the court order for the court does not have the coercive power to enforce its own judgements. It must rely on the executive branch to do so. Then why does the executive in a constitutional system of government obey the rulings of a court, if it cannot be coerced into doing so? This is perhaps because all branches have an underlying commitment to the rule of law and this commitment transforms itself into an idea of "constitutionalism". In India, it is not the President or the Chief Justice of India or the Speaker of the Lok Sabha who is supreme, but it is the Constitution that claims supremacy, and all must act in deference to it.

The constitutional offices that constitute the higher judiciary in India are merely such creatures of the Constitution. Those who hold these offices do not gain a divine persona merely by occupying them. They, like all other people, are fallible. However, by virtue of the office they hold, they wield considerable power of the destiny of many. This is why their integrity and character should not be a question that is out of the realm of public debate but must be one that is subject to consistent and constant public scrutiny.

Unseemly response to a complaint

We have recently learnt that a former employee of the Supreme Court registry has alleged that she was sexually harassed and victimised by the current Chief Justice of India.

The complainant, in this case, has submitted a detailed affidavit narrating her complaint and has sought the constitution of a special enquiry committee of retired judges of the Supreme Court to inquire into these charges. This is perhaps the first time in the history of independent India that a sitting Chief Justice has been accused of this kind of misconduct. I will not dwell into whether the allegations in the complaint are true or false. The question of truth and falsity is the subject matter of an enquiry and it cannot be a matter that can be determined by a court of public opinion.

However, the response by the Chief Justice and senior officers of the Supreme Court is something that is a cause for considerable concern. In the early hours of Saturday morning, it was brought to everyone's notice that a special bench of the Supreme Court would be convening on Saturday morning to deal with a "matter of great public importance touching upon the independence of the judiciary". This bench would consist of the Chief Justice of India and Justices  Sanjeev Khanna and Arun Mishra.  

Before we deal with the hearing itself. Let us ask ourselves if an allegation of this nature touches upon the independence of the judiciary at all. This is an allegation of personal misconduct against someone who holds a constitutional office. The charge is not against the office but is against the person who holds that office. It does not touch upon whether the institution is capable of delivering impartial justice nor does it touch upon whether the institution is subject to outside influence. An allegation of personal misconduct against an officer is one between the officer and the complainant. The only way this can be made an institutional issue, is if the institution treats itself as a case peculiar rather than like any other institution in the country.

But what happened at the hearing and during the course of the hearing is just that. The Chief Justice of India presided over this special bench that was to deal with this issue. The Chief Justice of India is the respondent in the complaint. It is unheard of for a person who is the subject matter of an enquiry to be determining how the enquiry is handled.

At the special bench hearing, the CJI proceeded to dismiss these allegations saying that "The responsibility of calling this hearing is mine. We had to take this extraordinary and unusual step because things have gone too far. Judiciary cannot be made a scapegoat". 

There were further statements from the CJI "This is unbelievable. I should not stoop low even in denying it. Rs. 6.8 lakh is all I have as bank balance… They cannot catch me on money, so they have brought up this. This is the reward a Chief Justice of India gets after 20 years and a bank balance of Rs. 6.8 lakh. Independence of judiciary is under very very serious threat. I had to tell this from the judicial seat".  

However, even though this special bench was assisted by the Attorney General for the Union and an Additional Solicitor General, no mention was made about the correct procedure to be followed in order to deal with a complaint such as this. None of the top law officers found it fit to assist the court with the legal mechanisms in place to determine such a matter. In fact, none of the top law officers brought it to the attention of the court that it was highly improper for the Chief Justice to be presiding over a bench dealing with a matter that concerns him. 

The Bar Council of India released a statement calling the allegations "cooked up" and attempted to speak for the entire country's bar and stated that the entire bar stood in solidarity with the Chief Justice

This is not the first time the Bar Council has done something like this, and it will probably not be the last. Without even waiting for an enquiry the Bar Council had passed judgement on the merits of the complaint and has determined that it ought to be dismissed. 

So much for the "fierce independence of the bar". Rather than performing their functions as officers who are cast with a duty to inform the court as to what the law is, India's senior legal institutions and officers seem to be happy closing ranks in a manner that does not inspire the public confidence.

A curious and bizarre order

The proceedings on Saturday culminated with something even more curious and bizarre. The Chief Justice of India did not sign the order of the bench and the other two judges sitting on the bench signed the order. Of a three-judge bench, only two judges signed the order. Why the Chief Justice recused himself halfway is a question that only he can effectively answer. The order that was passed by the bench was not a direction or a determination. It was a chilling reiteration of the status quo where it was left to the "wisdom of the media" to show the required restraint in reporting these allegations. From an institution that can detain people at its pleasure for contempt, such an order looks like an advisory to the media to toe the line. Such orders create a chilling effect and only act as a means of prohibiting the press from doing their job. There is no person in public life who can claim to be shielded from probity. It comes hand in hand with occupying public office. No person, even the constitutional creature that is the Chief Justice of India is immune from public criticism and investigation.

But what of this complaint? How should the Supreme Court deal with this allegation? Well, the same way every other institution deals with allegations such as this. In accordance with established law. There is an "In House Procedure" applicable to the judges of the Supreme Court along with the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal Act) Act, read with the Supreme Court Sexual Harassment Regulations, 2013. The law calls for the constitution of an enquiry committee and notice to be issued to the respondent. An institutional response must be one that acts soundly in accordance with law. Deviations from the standard process give rise to more questions than they answer. The office of the Chief Justice of India is not one that is above question or scrutiny. If there is an allegation made against the holder of the office, such allegation must be investigated in full. Not just for the sake of justice to the complainant, but in order to ensure that allegations against an individual do not become allegations against an institution.

The Minister for Finance, Arun Jaitley, who also happens to be a Senior Advocate said "Such complaints, when they are made in the ordinary course of any administrative functioning, are referred to the appropriate Committee. However, when the complainant distributes copies of her representation to other Judges of the Supreme Court and the media in order to sensationalise her allegations, it ceases to be routine."

No right to privacy for a public official

Merely because the complaint was circulated to the other judges of the court does not justify treating the matter as non-routine. A public official has no right to their privacy when allegations are levelled against them. In fact, they have no right that these allegations did not form a part of the public record. By virtue of holding a public office, all allegations, irrespective of their veracity, become a matter of public interest. Treating the complaint as routine is the correct institutional response. It is the correct response because this ensures that those who are subject matter to these allegations cannot wield power and influence in order to determine their outcome. Power can work behind the shadows, if the process of probing these allegations is kept confidential, the process is vulnerable to outside influence. 

For constitutionalism to survive and thrive, it is vital for its actors to act in conformity with the rule of law, especially those holding high public office. They are entitled to their rights under the law and this includes the right to a spirited defence. But they cannot bypass the law and settle the question on merits. Unfortunately, such an attempt was made with the hearing on Saturday. A judge sat in judgement of his own cause and the nation's top law officers stood by as mute spectators. There was a blatant attempt to assassinate the character of the complainant and there was even an attempt to hint at there being a possibility of a larger conspiracy at the foot. 

Such a response is unbecoming of India's constitutional institutions. It is also a gross disservice for the many women who work in India's judicial system as lawyers and court officials. They deserve a system that takes their safety seriously. 

It is not just the public faith in an institution that is under attack, but this could snowball into an attack on constitutionalism itself. The events at the Supreme Court have shaken the public confidence in the institution. Constitutional institutions cannot survive without the confidence of the public. Serious measures need to be undertaken to rectify this situation immediately.