Clean chit to ex-CJI in harassment case leaves room for corrections

“Nobody in the world, nobody in history, has ever gotten their freedom by appealing to the moral sense of the people who were oppressing them.” – Assata Shakur

The 46th Chief Justice of India, Mr. Ranjan Gogoi, has retired with full state honours. Earlier this year, a former Supreme Court staffer accused him of sexual harassment in the workplace. The Bar Council of India quickly declared the allegations as baseless, pronouncing the victim guilty of mischief and conspiracy.

Social workers, activists and women lawyers have been expressing anger over the unchecked power men enjoy at the workplace that allows them a free ride with impunity. We have seen this far too often. Women have to fight against men more powerful than them, to achieve any semblance of justice. In our social work circles, we often say that filing a complaint on harassment to seek justice is often another round of harassment in itself.

On the eve of 2020, India is facing the worst female labour force participation rate. In the Supreme Court, women employees are outnumbered three times by men. Gender theories have repeatedly stated that lower participation of women leads to a rise in sexual harassment in the workplace in any organisation. Widespread sexual harassment further lowers female labour force participation.

Also read | CJI sexual harassment: Ex-SC judge Madan Lokur finds ‘bias’ in panel probe

The manner in which sexual harassment allegations against the CJI were dealt with was callous and unworthy of the same court which gave us the path-breaking Vishaka judgement. An issue of sexual harassment was quickly portrayed as an attack on the judiciary. It is perhaps anti-justice to seek justice against alleged sexual harassment by a CJI. The accused constituted an in-house committee for his own case and sat on the bench of his own hearing. This was a colossal mockery of the standards upheld by the Supreme Court itself. For reasons best known to him, the CJI even put out his bank balance details! The victim was shamed by the bar and declared false without a credible hearing. As someone who works on prevention of sexual harassment in the workplace, this was deeply defeating.

I was recently asked to step down as an External Member in an investigation of sexual harassment in the workplace because of the possibility of a bias. Initially scheduled to conduct an employee awareness workshop, I was referred to this organisation by a colleague who happened to be close to the complainant, a month before the alleged sexual harassment. My contact details are public and I met my referrer two years back in another professional setting. Still, concerns about bias were raised. The Chairperson could have easily concluded this concern, but the organisation was worried about any backlash on social media. In the words of the accused, “Even if there is a 0.01% chance of a bias, I don’t want to take it.” Finding a new External Member at the last minute was highly inconvenient for the organisation, but it had to be done. Principles of natural justice, a basic requirement, had to be respected and followed. One cannot be a judge in their own case, and any potential of bias has to be eliminated (nemo judex in causa sua). Apart from being painfully obvious, any first-year law student will know this.

Being the chief upholder of justice in India then, I’m sure Mr. Gogoi knew this well. He was among the four judges who dissented in 2018 against the previous Chief Justice Dipak Misra because under his rule, it was established that the CJI alone can decide which case will be allocated to whom, including cases against the CJI themselves. A year later, Mr. Gogoi was on the bench in the hearing on the sexual harassment case against him.

A chairperson of any sexual harassment investigation must be higher in designation and power than the accused. Who is higher in power than the CJI? None. This leads to the argument that principles of natural justice can be revoked under conditions such as impracticability.

Also read | Justice Patnaik’s probe into larger conspiracy against Gogoi

Currently, there are three ways in which Supreme Court judges can be inquired into. First, set up an in-house inquiry committee, but this is constituted by the CJI. Second, the sexual harassment committee set up under Vishaka Guidelines, but this again is set up by the CJI. Third, an impeachment motion in the Parliament, signed by no less than 100 Lok Sabha members or 50 Rajya Sabha members.

If you’re a woman experiencing sexual harassment from a person holding the post of the Chief Justice of India, right under the very roof of our apex institute of justice, which option among these three would you choose? Remember, in the first two options, they send the inquiry report to the CJI, who then takes required action.

Since there are no viable procedures to investigate a CJI, we can conclude that the CJI could not possibly be held accountable by any law in India unless they attract Parliamentary impeachment.

This meant that the CJI could throw his weight and summon the entire institution to defend himself.

Attorney General (AG) K.K. Venugopal had let slip a recommendation that senior retired judges must be roped in to investigate claims of sexual harassment. Such a committee would not be subjected to the control the CJI has over senior judges appointed for the in-house committee. But the AG’s recommendation was not considered.

This lapse along with Justice S.A. Bobde’s swearing-in is a perfect opportunity to establish procedures and set guidelines. Akin to the provisions of a Local Complaints Committee under Sexual Harassment at Workplace Act, 2013, there must be a standing committee of senior retired judges to investigate complaints of sexual harassment against the CJI. This standing committee should follow all the provisions and rules, such as having a female chairperson and an external member. For the sake of ‘independence of the judiciary’, the findings from this standing committee must be made public after submitting the report to the President of India.

For every woman who dares to speak up and is silenced through institutional harassment, there are ten other women watching her journey, and believing that speaking up about sexual harassment is not worth the pain.

It is critical that our apex court leads the way and ensures that justice is “not only done, but (is) also seen to be done”. Here, justice starts with believing women. When we feminists say ‘believe women’, it does not mean that what she says must be the absolute truth. It simply means that her admission has merit and is not inherently non-credible.

(Sonam Mittal is a feminism activist and writer who has worked on issues regarding the environment, human rights and gender equality.)