Former chief justice of Delhi High Court, Justice A.P. Shah, said there is a need to engage in how the Vishaka guidelines, which deal with sexual harassment in the workplace, should be made applicable to the judiciary.
Justice Shah’s comments came while delivering the 27th Rosalind Wilson Memorial Lecture on Sunday on the subject ‘Judging the Judges, Need for transparency and accountability’.
The former chief justice said the “immediate trigger” for his choice of subject for the speech was the sexual harassment allegations raised by a Supreme Court employee against Chief Justice of India Ranjan Gogoi.
Justice Shah said he did not want to pass judgment on the truth or falsity of the sexual harassment allegations, but he added they were “certain stark facts that stand out which demand consideration”.
The former judge said the complainant, a permanent employee of the Supreme Court, was removed from her post on the flimsy allegation of her having taken a half-day casual leave, and protesting against her seating arrangement. An “unusual hearing” was held on April 20 without a petition having been moved, Justice Shah said.
“In what was termed as a “Matter of Great Public Importance Touching Upon the Independence of the Judiciary”, the person holding the highest judicial office in the land sat as a judge in his own cause.
“Three judges attended that hearing, but the order that emerged was surprisingly signed only by two out of those three, with the Chief Justice choosing to abstain,” Justice Shah said.
The former chief justice termed the “process of inquiry” conducted by the Justice S.A. Bobde Committee into the allegations as “questionable”. The complainant had withdrawn from the inquiry. Shortly after, the panel concluded that the allegations against the CJI were without substance. Justice Shah said “conspiracy rumours” came even as the allegations were denied from various quarters of the Supreme Court officialdom.
On the in-house mechanism dealing with complaints against judges, Justice Shah said it has no statutory basis and certainly no constitutional blessing. He suggested that a permanent disciplinary committee with a secretariat be set up at the central level to deal with complaints against judges, and the government should have no part in this.
He said “… the Chief Justice cannot be made an exception to the procedure, as unfortunately is the case today. Any accountability mechanism must apply to all judges, regardless of status or rank. The law and the procedure must also engage with how the Vishakha guidelines can be made applicable to the judiciary, the extent to which the right to information is allowed, and so on.
Justice Shah called for a new and more detailed code of conduct guiding judicial behaviour and a streamlined process for regular performance evaluation of judges.
In a critical take on the collegium system, Justice Shah said names are “bartered” among collegium members or even finalised over a cup of tea.
“There is a fundamental need to ensure that justice is not only done but not only manifestly, undoubtedly done,” he said towards the end of his speech.