The former Chief Justice of India, Ranjan Gogoi, following his swearing in as a Member of Parliament (Rajya Sabha), spoke to the press and answered questions about his tenure as the head of the Supreme Court of India. The propriety of nominating a former head of the judiciary as a representative in the Parliament, and its ramifications on the separation of powers in a constitutional democracy, have been discussed by commentators and former judges. However, his recent statements on the many hats he donned during his judicial career (including as the accused in a case of sexual harassment) deserve a closer look.
The case relates to a woman staffer of the Supreme Court who, in April 2019, raised allegations that Gogoi sexually harassed her, and when she rebuffed his advances, she faced reprisals, including the termination of her services at the Supreme Court. Upon the filing of the complaint, Gogoi proceeded to constitute a bench presided by him, on the very next day — a Saturday — and in the proceedings, he declared himself innocent and the allegations as a ploy to “attack the independence of the Supreme Court” and bring disrepute to the office of the Chief Justice.
The allegations were, thereafter, referred to a three-member committee of the Supreme Court for inquiry. The procedural infirmities in this process resulted in the complainant eventually withdrawing from the proceedings. Armed with the complainant’s withdrawal, the three-member committee pronounced that there was “no substance in the allegations” levelled against Gogoi. The committee proceedings, the final report, and details of the procedure followed have remained obscured in ‘confidentiality’. Gogoi demitted office as the CJI in November 2019 and the woman staffer accused of making these “baseless” allegations with “an intent to destabilise the judiciary” was reinstated to the Supreme Court soon thereafter. The complainant ultimately chose not to pursue her allegations against Gogoi, however, his statements betray a disregard for the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
In response to a question about whether the procedure followed in the case pertaining to charges of sexual harassment against him was adequate, Gogoi stated that the Vishakha Guidelines laid down by the Supreme Court have been engrafted in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, but do not, however, apply to judges of the Supreme Court. He pointed to an 'in-house' procedure of the Court under which the inquiry was conducted. According to him, this 'in-house' procedure does not allow witnesses, cross-examination of the victim, or even the application of the principles of natural justice. Gogoi J.’s claims are not supported by the text or the spirit of the law.
The 'in-house procedure’, first devised in 1999, and extended to allegations of sexual harassment in 2014, is applicable to judges of the Supreme Court, but fails to effectively apply to the CJI. This is because it requires the CJI to form an opinion about whether there was merit in the allegations, ask for a response from the concerned judge, and if he is of the opinion that the allegations deserve a deeper probe, constitute an inquiry panel to investigate the matter and take necessary action pursuant to the findings of the panel.
This puts us in one of following two positions:
(A) the CJI himself plays an unarguably crucial role in how the inquiry proceeds in a matter where he is the accused
(B) there is in fact no procedure laid down for investigation into allegations against the CJI.
It is important to note that the ‘in-house procedure’ has directions for the process to be followed when allegations are raised against either a judge of a high court, a chief justice of a high court, or a judge of the Supreme Court, while being entirely silent on when allegations are raised against the Chief Justice of India. Gogoi is right when he states that the in-house procedure does not envisage examination and cross-examination of victims, witnesses or representation of lawyers. What he failed to point out is that the committee was required to devise its own procedure consistent with the principles of natural justice.
The complainant raised many issues with the procedure followed by the committee, many of which directly dealt with the violation of the principles of natural justice. Similarly, Gogoi is right when he stated that neither the Vishakha Guidelines nor the Sexual Harassment Act are directly applicable to judges. What he failed to highlight is that the guidelines, which formed the basis of the Act, were passed by the Supreme Court taking into consideration international human rights conventions and the constitutional guarantees of the right to equality, freedom and to live with dignity, with the intention of ensuring gender equality. Any procedure dealing with sexual harassment at workplaces ought to be steadfast in its commitment to the constitutional guarantees.
Gogoi said that the principles of natural justice were not violated, since he had not signed the order of the Saturday bench “to deal with a matter of great public importance touching upon the independence of the judiciary”, where he presided. He also stated that it was “usual practice” for two out of three judges to conduct the proceedings and sign the order. This is misleading. It was not the case that he did not conduct or participate in the proceedings. The former CJI made many statements exonerating himself prior to the initiation of any inquiry from the pulpit. Having thus been the presiding officer of the hearing, he chose not to have any of this recorded in the record of proceedings and chose not to sign the order. At the very outset, Gogoi ought to have recused himself from the matter.
The interview was also peppered with patriarchal tropes deployed to call into question the character of victims of gender-based violence. He stated that the allegations were levelled to “destabilise the office” of the CJI, that he was a “family man”, that it was “very easy” for women to raise these allegations, and that it has caused unspeakable “damage” to his reputation. The bogeyman of ulterior motives reduces victims to puppets in an alleged ‘conspiracy’ orchestrated by the unknown.
The irony of the interviewee referring to the allegation as an attack on the independence of the judiciary on one hand, and on the other stating that his nomination to the Parliament will “strengthen cohesion” between the executive and judiciary, is not lost on anyone.
The authors are Delhi-based advocates. Shreya is a member of the Women in Criminal Law Association.
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Updated Date: Mar 25, 2020 09:31:19 IST