An allegation of sexual harassment was made against Chief Justice of India Ranjan Gogoi. He reacted like every other man—denied the charge and alleged collateral motives.

But the Supreme Court was not the man accused. The Supreme Court ought not to have acted like the man accused but ought to have acted like the Institution it is. It ought to have projected itself as the protector of freedoms, as the larger than life institution that guarantees the rights and freedoms of the individual, no matter who the accused. The Supreme Court ought to have demonstrated and articulated a progressive approach to women’s rights in the workplace and gender emancipation. The Supreme Court ought to have exhibited that the mechanism to ensure an inquiry is fair to the complainant even as it ensures that there is no misuse of systems of natural justice that might compromise the independence of the judiciary.

Unfortunately, that did not happen.

The Supreme Court failed to make the right sounds. On the contrary, the only sounds we heard were all wrong. On April 24, a Times of India report was headlined: “After allegation against CJI, many SC judges ask for male staff at houses.” The Supreme Court, from where we have at other times seen great eloquence—and often very verbose judgements—this time was incoherent and awkward.

The man and the Institution became one. A committee was set up to deal with the charge. Separately, a bench was constituted to inquire into collateral motives—the larger conspiracy. Instead of making eloquent statements about the law, the Supreme Court was tight-lipped, defensive and conducting itself like it was the accused that had the power to acquit itself.

The Supreme Court ought to have separated itself from the Chief Justice, and ought to have done what the law had laid down.

The law and procedure of what is to be done in the case of an allegation of a sexual harassment against a judge had already been laid down in a previous case of alleged misconduct by the Chief Justice of the Bombay High Court (C Ravichandran Iyer v AM Bhattacharjee, 1995), and a case of alleged sexual harassment by a Madhya Pradesh High Court judge (Additional District and Sessions Judge X v Registrar General, High Court of Madhya Pradesh, 2015). Additionally, procedures are also laid out in the “In-house Procedure” that was set out by a five-judge Supreme Court committee and approved by a Full Court of the Supreme Court on December 15, 1999.

The In-house Procedure—which was applied to the allegation of sexual harassment against the Madhya Pradesh High Court judge—prescribes a two-step process. The first stage is to ascertain the prima facie veracity of the complaint. This, as per the In-House Procedure, when applicable to Supreme Court judges was to be done by the CJI. The second step—if it is determined that the allegation is of a serious nature and a deeper probe is called for—is that a three-member committee is to be constituted. The incumbents of the three-member committee are to have no nexus with the judge concerned. The procedure to be followed by the three-member committee should be consistent with natural justice. It is provided that “the inquiry shall be in the nature of a fact-finding inquiry wherein the judge concerned would be entitled to appear and have his say. But it would not be a formal judicial inquiry involving the examination and cross-examination of witnesses and representation by a lawyer”. It is then provided that if the three-member committee arrives at the conclusion that there is substance in the allegations, it would place the same before the CJI who would advise the judge to resign. If the judge did not heed the advice, the report would be placed before the President and Prime Minister (and impeachment proceedings would commence).

While the In-house Procedure does not contemplate what happens when the judge accused is the CJI, it is but obvious. The CJI cannot be a judge in his own cause—natural justice 101—and must recuse himself and the next-most senior judge should play the role of the CJI prescribed by the In-House Procedure. That should have been Justice SA Bobde. Justice Bobde should have been at the helm of the two-stage process of the In-House Procedure. The CJI should not have been seen or heard in this entire episode.

But, this is where the Supreme Court failed. The CJI did not step aside. The CJI, in fact, conducted court on a Saturday morning. Another bench was formed to deal with the larger conspiracy. Most significantly, the role of the CJI prescribed by the In-House Procedure was not taken over by the next-senior judge. In fact, Justice Bobde was made part of the three-member Committee. How could he then be the person stepping into the shoes of the CJI to whom the report of the Committee was to be tendered? Was this thought through or not? If it was thought through, was he deliberately made a part of the Committee so that the decision of what to do with the report rested with another judge? Or was it not thought through at all? Hard to say which is worse.

After all this, many had lost faith.  But some us had pinned our hopes that the three-member Committee will be a genuinely independent fact-finding committee and would act fairly and justly in finding the truth.  

But the three-member Committee which was to be a “fact-finding inquiry” closed its proceedings within a few days despite the complainant having withdrawn from the proceedings. The three-member committee was reported by the complainant to be insensitive. The complainant cited these reasons for withdrawing: (a) She was not allowed to have the presence of her lawyer/support person, (b) There is no video or audio recording of the Committee proceedings, (c) She was not supplied a copy of her statement, and (d) She was not informed about the procedure the Committee is following. She stated that the committee caused her further fear, anxiety and trauma.

While the Committee was perhaps not wrong in conducting proceedings without counsel (since the In-House Procedure mandates that it will not be formal judicial proceedings with counsel), nor was the Committee wrong in not audio or video recording the proceedings, the Committee failed in establishing that a fair process was in place to find the truth. The Committee appears to have failed to make the complainant comfortable enough that she could freely and fairly depose the whole truth. The Committee does not seem to have examined other evidence or witnesses, or maybe they have—but no one knows. No one knows who the Committee has submitted its report to since it cannot be the CJI, the second senior-most judge or the third senior-most judge. Is it the fourth-senior most judge, i.e. the judge who presided over the bench that was constituted by the CJI to find the collateral motives/conspiracy? It’s all very opaque.  

The three-member committee has failed to restore faith. The manner in which the proceedings were reported to have been conducted and the hurried manner in which the CJI was given a clean chit leaves everyone feeling that the justices of the Supreme Court have placed their loyalty and friendship above and beyond their call of duty, to stand by their brother judge.

The Supreme Court of India is meant to protect the vulnerable against the powerful. This Court acts as the protector of freedoms, as the institution that upholds the values of equality and safety. As a result, people are screaming for external members to be on a committee. For a Vishaka inquiry or a POSH inquiry is to be conducted. Even Justice DY Chandrachud, the one Justice standing tall on this issue, has suggested an external member. But it must be said that there are dangers in setting the precedent of having external inquiries unleashed on our judges. It is imperative that judges are given the freedom to be bold without the fear of a political backlash.

The In-House Procedure was devised after the Full Court of the Supreme Court considered and noted that is the role of the judiciary to stand strong against the government in power—keeping its abuses of power in check and upholding the fundamental rights of the liberties of individuals. It is the role of the judiciary to be fearless of other power centres, economic and political. Keeping in view the importance of judicial independence—which can only be ensured if there is the security that a judge cannot be punished or removed for taking bold and independent decisions—it was resolved that “judicial self-regulation” is the only permissible Constitutional means (apart from impeachment) to ensure that judicial independence is protected. I daresay that while it is dangerous to set the precedent for an external inquiry on our judges, it seems the judges have left us with no choice. They have failed to provide faith that they can judge their own freely and fairly.

The Institution of the Supreme Court has failed us. The Supreme Court needs to take a look at itself from the outside to see the result of this entire process that started on April 20, 2019, and culminated in the report of the three-member committee. Does anybody believe that the CJI is innocent despite the Supreme Court’s clean chit? The Supreme Court has lost its credibility. The Supreme Court has done a great disservice to the discourse of women’s rights in the workplace, fair process and natural justice. People are screaming that the Supreme Court must be judged from the outside. If this really was a larger conspiracy to compromise the independence of the judiciary, then dear Supreme Court, you have played right into the hands of these so-called conspirators.

In the words of CJI, as said during the Saturday morning hearing: “The judiciary of this country is under very, very serious threat”. It was not then, but it is now.

(The author, a Delhi-based lawyer who practises in the Supreme Court and High Court, wishes to remain anonymous.)