Justice on trial

The Supreme Court’s defence of the CJI, Ranjan Gogoi, while dealing with his alleged offence of sexual harassment of its former employee, provokes outrage over its internal mechanism.

Chief Justice of India Ranjan Gogoi.

IT has been an unequal battle from the beginning.

On the one hand is the Chief Justice of India (CJI), Ranjan Gogoi, who is the administrative head of the entire judiciary in the country and who continues to exercise power and authority over the nature and scope of the in-house disciplinary mechanism and the composition of benches and cases heard by them within the Supreme Court. On the other hand, there is a former woman employee of the court, aged 35, who allegedly suffered sexual harassment at his hands when she was posted at his residence last October and had the courage to narrate her ordeal in an affidavit she sent to 22 judges of the court on April 19 and who continues to battle criminal charges and insinuations over her character.

The apparent inequality in the power relations between the accused and the complainant in this case could have been easily addressed by the Supreme Court, which in most other cases not concerning itself does not shy away from using its extraordinary powers to render justice to the victims. But in this case, it did not. Rather, it invited the criticism that it did not practise the oft-quoted aphorism that it preaches: “Justice must not only be done, but it must also be seen to be done.”

The complainant was a junior court assistant in the Supreme Court from May 1, 2014, to December 21, 2018, when her services were terminated. Rather than the allegation itself, it is the sequence and the narration of her official work from the beginning that makes her story credible. The alleged incidents of sexual harassment took place on October 10, and 11, 2018, and these dates mark a turning point in her relationship with the CJI. Until then, she sensed nothing amiss as the CJI was all praise for her work and her accomplishments, both in public and in private.

She had obtained a law degree from Chaudhary Charan Singh University, Meerut, and Justice Gogoi began to ask her to prepare case briefs, which she considered a privilege. She claimed that from noting down his instructions to preparing a “Hindi film song list” to be played at a lunch party, she did whatever he asked, like a devoted employee. Therefore, his invitation to her and her husband to important events where the CJI was the chief guest or when he was being sworn in as the CJI on October 3, 2018, or when she was asked to report for duty at his residence from August 2018 made her feel happy that the CJI extended these privileges to her because he found her work satisfactory.

But things took an awkward turn when the CJI insisted on deleting his WhatsApp messages to her and offered to help her differently abled brother-in-law to get a job under the CJI’s discretionary quota in the Supreme Court on October 9, 2018. On October 10, 2018, the CJI, she alleged, acknowledged her gratitude for the help but went on to compliment her on her looks and attire, and then touched her in a way that made her uncomfortable. He got up from his chair and asked her to come and stand next to him, asking “What can you do for me?” She told him that she was very grateful and that everybody in her family was very happy.

To quote her: “The CJI then slid his hand from the back of my head, along my back to my hipline, till my lower back. I immediately froze and my body stiffened. I think the CJI sensed this, and so he immediately pulled both my cheeks, like one would to a child. He told me that he is like this with his daughter too.” Although she was extremely tense, she told herself: “ Bade log , may be this is normal behaviour.”

On October 11, 2018, she went back to the CJI’s residence to report for duty. She showed him a notepad on which she had written how grateful she was to him, as he had asked her to do so the previous day. To quote her again: “The CJI read the note. He then got up from his chair and walked across and came and stood to my left. Since he was standing I too stood up as I could not continue sitting when the CJI is standing. He took my notepad from my hands and put it aside on the desk, he then took my hands into his and told me that my hands smell nice, he then pinched my cheeks, he then put his arms around my waist from the front, he said, ‘I want this from you.’ When I had stood up, I had put my hands behind my back. He hugged me around the waist, and touched me all over my body with his arms and by pressing his body against mine, and did not let go. He told me ‘hold me’, he did not let go of me despite the fact that I froze and tried to get out of his embrace by stiffening and moving my body away. Since he did not stop forcibly hugging me, I was forced to push him away from me with my hands. When I pushed him away, he hit his head against a bookshelf/cabinet on my left…. I immediately left the room and was in a state of complete shock and was unable to think clearly after this. I sat at my desk” (as published in The Wire).

The CJI, she claimed, later asked her not to disclose anything about what had happened to anybody lest her family be greatly disturbed. She felt scared. Despite her distress, the CJI asked her to write a note suggesting that it was she who tried to hold him.

Resisting the CJI’s overtures proved to be costly to her career and her family, she claimed. She was transferred thrice to different wings of the Supreme Court before being dismissed on December 21 on a flimsy charge of abstention from work without approval, following a sham departmental inquiry in which she was not given the right to defend herself through her nominee. Worse, the inquiry was held in her absence, as she had fainted outside the inquiry room and needed to be hospitalised. She was suddenly found unfit to continue in her job although her successive annual confidential reports earlier found her “good” or “very good”. Her husband and brother-in-law, both of whom are head constables in the Delhi Police, were suspended on December 28 in connection with a criminal case involving a residential colony dispute dating back to 2012 that had been mutually resolved.

On January 11, a police officer accompanied her to the Chief Justice’s residence apparently for a “compromise” where, she alleged, Justice Gogoi’s wife asked her to apologise by prostrating on the floor and rubbing her nose at her feet. Her differently abled brother-in-law, whom the CJI appointed in his discretionary quota, too suffered dismissal without reasons on January 14. As if these were not enough, she suffered further humiliation when a complainant, Naveen Kumar, alleged to the Delhi Police that he had paid her Rs.50,000 in 2017 in return for a job in the Supreme Court and that she had cheated him.

On March 10, she alleged that the Delhi Police forcibly brought them from Rajasthan where they had gone, tortured her and her family members at the Tilak Marg police station, New Delhi, in connection with this criminal complaint. She has submitted video evidence of this incident at the police station and the audio record of the conversation between the police officials and her relatives. After spending a day in police custody, she also spent a day in judicial custody before securing bail. The Delhi Police has since sought cancellation of her bail before the Delhi High Court.

These are verifiable facts, although considering the power imbalance between the CJI and her, witnesses are unlikely to support her version before an in-house inquiry.

The unusual Saturday hearing

On April 20, four websites, The Wire, The Scroll.in, The Leaflet and The Caravan , published the story on her allegations, along with the CJI’s denial, simultaneously at 9 a.m. after cross-checking the facts. The Secretary General of the Supreme Court denied the allegations to the four websites as follows: “The registry of the Supreme Court of India had posted this individual, who was employed at a level equal to a lower division clerk, in a routine manner at the residence office of the Hon’ble The Chief Justice of India, where in addition to her, there were several other employees also working as a part of the home office of the CJI, and at any given point of time, there were at least 5-6 other present as a part of the home office of the CJI.” He added: “She worked as part of the home office of the CJI only for a short period, and as informed, given the nature of her duties, she had no occasion to interact directly with the CJI.” A careful reading of this response shows it hardly contradicts her specific allegations.

The Secretary General saw a wider conspiracy in the woman’s allegations. He said in the emailed response to Scroll.in : “It appears that these false allegations are being made as a pressure tactics to somehow come out of the various proceedings which have been initiated in law, against her and her family, for their wrong doings. It is also very possible that there are mischievous forces behind all this, with an intention to malign the institution.”

What followed this, however, dismayed even those who considered her version with scepticism. The CJI constituted a bench, presided over by himself and including Justices Arun Mishra and Sanjiv Khanna, to assemble at 10:30 a.m. by taking suo motu notice of the matter after Solicitor General Tushar Mehta mentioned it. Titled “In Re: Matter of Great Public Importance Touching Upon the Independence of Judiciary–Mentioned by Shri Tushar Mehta, Solicitor General of India”, the case gave CJI Gogoi an opportunity to present his “denial”. He spoke about his poor bank balance to drive home the point about why his detractors had to “cook up” this story to discredit him. But it hardly explained why a judge with a poor bank balance could not be accused of sexual harassment.

This was unbelievable, he said. Again, he did not say whether an allegation could be dismissed merely because it was unbelievable to listeners. He claimed that the websites that carried the story gave him 10 hours to respond, and that this showed that the judiciary was under serious threat. Again, it was not clear how judicial independence could be better defended if the CJI got more time to respond.

It was clear that the CJI was unable to distinguish between a verifiable allegation, and defamation that a judge may be subjected to. There are remedies available to a judge who faces baseless allegations. If the independence of the judiciary is the issue, the court can invoke its powers under the Contempt of Courts Act against an accused. The CJI’s speaking in his own defence as the presiding judge in a sexual harassment case makes a mockery of whatever the Indian Supreme Court has stood for all these years. But Attorney General K.K. Venugopal, the Solicitor General and the two judges who joined the CJI on the bench did not find anything amiss. At the end of the hearing, an order, purportedly signed by only two of the three judges present (excluding the CJI), was uploaded as if the CJI had recused himself, while he had not. “Having considered the matter, we refrain from passing any judicial order at this moment leaving it to the wisdom of the media to show restraint, act responsibly as is expected from them and accordingly decide what should or should not be published as wild and scandalous allegations undermine and irreparably damage reputation and negate independence of judiciary. We would therefore at this juncture leave it to the media to take off such material which is undesirable,” the order signed by Justices Arun Mishra and Sanjiv Khanna read.

Larger conspiracy

In the subsequent days, the composition of this bench changed, perhaps because of the outrage it led to. Justices Arun Mishra, Rohinton Fali Nariman and Deepak Gupta continued the hearing of this bench, taking note of an affidavit filed by a young lawyer, Utsav Bains, who alleged that some people approached him to frame the CJI in the sexual harassment case. The bench hinted that this was part of a larger conspiracy and wanted to go to the root of the matter as Bains alleged that two former employees of the Supreme Court, dismissed for tampering with the records, had conspired with the woman in question and a fixer who dealt in cash for judgments.

The bench’s continued hearing of the matter despite clear procedural irregularities raised eyebrows. It refused to accept the submission of senior counsel Indira Jaising that its hearing would prejudice the outcome of the in-house inquiry initiated by the three-member committee comprising Justices S.A. Bobde, Indira Banerjee and Indu Malhotra into the woman’s complaint against the CJI. Justice Bobde, the senior-most puisne judge of the Supreme Court, constituted the committee following a request from the CJI. Justice Indu Malhotra was inducted into the committee after Justice N.V. Ramana, who was Justice Bobde’s initial choice, recused himself following the woman’s claim that Justice Ramana had already rubbished her allegations against the CJI and that he was a frequent visitor to the CJI’s home.

The Arun Mishra bench later requested the former judge of the Supreme Court Justice A.K. Patnaik to examine the allegations of a larger conspiracy and submit a report. Justice Patnaik, however, preferred to await the findings of the in-house committee in the sexual harassment matter before taking up the inquiry into the larger conspiracy, as alleged.

On April 30, the complainant woman, after attending the in-house committee’s proceedings for three days, decided to boycott its further sittings, citing three procedural flaws: one, she was not allowed to have her lawyer or a support person; second, the committee did not accept her plea for video or audio recording of the proceedings; and third, she had not been given copies of her depositions or informed of the procedure that the committee was following.

Her initial plea to the Supreme Court judges was to constitute a special inquiry committee of senior retired judges of the court and not a committee of sitting judges, who are junior to the CJI. She referred to the infamous Saturday hearing of the court on April 20, in which various allegations were made against her in her absence by the CJI and others. Both the Vishakha Guidelines laid down by the Supreme Court to deal with sexual harassment cases and the Prevention of Sexual Harassment Against Women at the Workplace Act allow her the assistance of a lawyer/support person of her choice and for video recording of the proceedings. She claimed that she had lost hearing in one ear completely owing to stress and was undergoing treatment. She also submitted that she felt quite intimidated and nervous in the presence of three judges without a lawyer or support person with her.

Irrespective of what the findings of the in-house committee are, the response of the Supreme Court as an institution to allegations of sexual harassment against the CJI has been found to be extremely wanting and disappointing. It will require majestic steps on the part of the court to restore its credibility, which has suffered a serious dent following the allegations.