There is a need for immediate remedial steps to deliver justice to victim, says Dushyant Dave

“Supreme Court must heed its own judgments in the CJI sexual harassment hearings; It should also be fair to the judge concerned, and restore public confidence”

May 02, 2019 09:29 am | Updated 09:29 am IST

Dushyant Dave

Dushyant Dave

Four centuries ago, Chief Justice Sir Edward Coke during King James I’s reign demolished the theory that “the king can do no wrong”. He held that the “king should be under god and the law”. Thus was established the supremacy of the law or the rule of law.

Yet, the Supreme Court of India appears to think that it is above the law as an institution on its administrative side. It is acting clearly as if the judges and not the law is supreme. The ‘in-house procedure’ committee of three honourable and distinguished judges is proceeding post-haste to complete its task. In the process, it is negating everything that the Supreme Court has stood for on its judicial side. Irrespective of the report it submits, the conduct of the in-house inquiry by the committee raises extremely disturbing and far reaching questions.

‘Constitutional mandate’

The Supreme Court has consistently prided itself as “a court which stands as a ‘sentinel of the qui vive’ over the rights of the people of this country”. In the celebrated Indra Sawhney vs. Union of India in 1992, a Constitution Bench of nine judges held: “therefore, judges who are entrusted with the task of fostering an advance social policy in terms of the constitutional mandates cannot afford to sit in ivory towers keeping Olympian silence unnoticed and uncaring of the storms and stresses that affect the Society”.

It also reminded itself: “When societal conditions and factual situations demand the judges to speak, they, without professing the tradition of judicial lockjaw, must speak out……”

The court unhesitatingly spoke in Visakha against sexual harassment at workplaces and commanded that till the time Parliament enacted the law, its judgment laying down guidelines to prevent sexual harassment and to punish those guilty, must hold the field. Years later, parliament stepped in and enacted the ‘Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013’.

Yet, the Supreme Court has singularly failed to apply that law to itself and prohibit sexual harassment in its own workplace. By excluding the employees and themselves from its purview, the victim’s complaint against Chief Justice Ranjan Gogoi is therefore left at the whims of the judges. In the absence of a defined procedure for redressal, the judges have followed the in-house procedure in a stereotypical fashion.

True, this procedure to inquire against a judge of the Supreme Court provides for constituting ‘a Committee consisting of three judges of the Supreme Court’ while in respect of the judges of the High Court and the Chief Justice of the High Court, the committee comprises ‘two Chief Justices of High Courts other than the High Court to which the judge belongs and one High Court judge’ or ‘a judge of the Supreme Court or two Chief Justices of other High Courts’ respectively.

Fundamentally, the procedure to inquire into a complaint against a judge of the Supreme Court is defective and not free from prejudices and bias. The Supreme Court in Addl. District & Sessions Judge ‘X’ v. High Court of M.P. speaking through Justice J.S. Khehar and Justice Arun Mishra, when they justified the constitution of a committee excluding judges of the same court, stated: “….The exclusion of judges of the same court from the investigative process, was also well thought out. In certain situations it may be true, as pointed out by the learned counsel for the petitioner, that judges of the same court being colleagues of the judge concerned, would endeavour to exculpate him from his predicament. It is not as if the position could not be otherwise. Animosity amongst colleagues is not unknown. Reasons of competitiveness, jealousy and the like are known amongst colleague judges, especially from the same High Court...”

While declining to go into the contention of the petitioner that inquiry by the two-judge committee constituted by the Chief Justice of the High Court cannot be expected to arrive at a fair conclusion, the Justices yet went ahead and responded for it being ‘just and proper’ and ‘for future reference’.

“There can be no doubt, that an investigation, would lead to consequences. The judge concerned may be found remiss, or alternatively, he may be exculpated of the charges. Whilst in the former eventuality, the judge concerned against whom the findings are recorded, would be the obvious sufferer, in the latter eventuality, the adverse consequences would be against the complainant, for it would be assumed that she had levelled unfounded allegations. It is therefore imperative that the procedure adopted for the investigative process is absolutely fair for all concerned. The procedure should be such as would ensure, that it would be shorn of favouritism, prejudice or bias. Presence of any one of the above would vitiate the entire investigative process. Recording of statements of individuals, who are subservient to Respondent 3 Justice A, irrespective of whether the statements are recorded on behalf of the complainant or the judge concerned, would most definitely render the investigative process unsustainable in law. The influence of the judge concerned, over the witnesses to be produced, either by the complainant or by the judge concerned himself, will have to be removed. It will be for the complainant to raise a grievance of the nature referred to above.….. And whenever necessary, remedial steps will be taken”.

Accordingly the Supreme Court held “that the Investigative Process under In-House Procedure must take into account the Rights of the Complainant, the judge concerned by adopting a fair procedure and safeguards, the integrity of the Institution”. In that judgment the Supreme Court ordered, “to make the process ‘fair and just’, it is imperative to divest the judge concerned (against whom allegations have been levelled), of his administrative and supervisory authority and control over witnesses”.

Therefore the Supreme Court should have appointed a fiercely independent committee. All this is singularly forgotten by the committee presided by Hon’ble Justice Bobde. The victim’s statement to the press published widely in newspapers demonstrates that the committee’s constitution, its procedure and its functioning are far from being fair and just. The very constitution of the committee raises serious question marks even if it be under the declared procedure. The law declared as above makes this legal position abundantly clear. Justices should have been mindful of their own law.

The Chief Justice, during the fateful hearing on April 20 proclaimed from a judicial dais his innocence, described the victim as a criminal and spoke of a conspiracy against himself and the judiciary. Equally relevant is that following the alleged incidents of sexual harassment on October 11, 2018, the victim has been visited with inhuman treatment beginning with a series of transfers within the court’s precincts from one desk to another, initiation of inquiry, suspension and ultimate dismissal in the most bizarre manner, followed by suspension of her husband and his brother and initiation of departmental enquiries against them, summoning of the victim and the husband by the SHO, Tilak Marg Police Station, registration of FIR on absurd charges, arrest of the victim and her husband and inhuman treatment including hand cuffing, are all serious pointers at a possible conspiracy by the officials of the Supreme Court Registry, the police and those in power to protect the Chief Justice.

In such circumstances, the committee was expected to allow the victim to be represented by a lawyer irrespective of a procedure adopted by them. Lord Denning in Pett vs. Greyhound Racing Association Ltd . made a profound statement on the law as to the representation of a lawyer in a domestic enquiry, “….when a man’s reputation or livelihood is at stake, he not only has a right to speak by his own mouth, he also has a right to speak by counsel or solicitor…even a prisoner can have his friend”. He observed that “a domestic Tribunal is not at liberty to lay down an absolute Rule: “We will never allow a lawyer to appear for him”. The Tribunal must be ready in a proper case to allow it”.

In Port of Bombay Vs Dilip Kumar Nadkarni , the Supreme Court justified representation by a lawyer declaring, “Now examine the approach of the Chairman. While he directed two of his law officers to conduct the enquiry as prosecutor, he simultaneously proceeds to deny such legal representation to the delinquent employee, when he declined the permission to the 1st respondent to appear through a legal practitioner. Does this disclose a fair attitude or fair play in action? Can one imagine how the scales were weighted and thereby tilted in favour of the prosecuting officer...”

Procedural safeguards

Pertinently in Nandlal Bajaj vs State of Punjab , the SC held that “the history of personal liberty is largely the history of procedural safeguards” and held: “Fundamental Right in Article 21 carries with it the inherent right to legal assistance”.

The committee consisted of three of the most respected jurists and judges with vast knowledge and experience in law. Could the victim have got a fair chance before the committee without being represented by a lawyer? She asked for it and the committee declined it.

One aspect must be remembered: the status of women in this country is still not equal to that of men. As a result more often than not sexual harassment victims suffer more than the perpetrators. The committee should have been mindful of realities prevailing in the society. The victim has every reason to demand greater fairness from the committee. Sadly, the committee failed to respond. The victim made the complaint at the end of the road, when she and her family were pushed to the wall. She could have forgotten the incidents of October 11, but successive and continuous acts of oppression against her and her family which are nothing short of sexual harassment compelled her to make the complaint on April 19.

Can she be doubted for this? Let me remind the nation what the Supreme Court itself speaking through Justice Nariman in Assam Sanmilita Mahasangha v. Union of India , to which Justice Ranjan Gogoi was party, has held, “Given the contentions raised specifically with regard to pleas under Articles 21 and 29, of a whole class of people, namely, the tribal and non-tribal citizens of Assam and given the fact that agitations on this score are ongoing, we do not feel that petitions of this kind can be dismissed at the threshold on the ground of delay/laches. Indeed, if we were to do so, we would be guilty of shirking our constitutional duty to protect the lives of our own citizens and their culture. In fact, the time has come to have a relook at the doctrine of laches altogether when it comes to violations of Articles 21 and 29”.

Sceptics must remember right to life includes right to reputation, right to life without fear, right to employment, right to fair treatment and of course right to dignity. Its expansion by the Supreme Court is historical. Let us hope the committee and the justices of the Supreme Court rethink the whole issue and take remedial steps so as to deliver justice to the victim, while being fair to the judge concerned, and restore public confidence and faith.

(The author is a senior advocate and the former President of Supreme Court Bar Association.)

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