The Supreme Court of India was summoned to one of the biggest tests it will ever face as an institution. On 20th April, a former SC employee sent an affidavit to all the judges of the Supreme Court alleging Sexual Harassment by CJI Rajan Gogoi. Since then, nothing has been normal for Supreme Court. On 23rd April, CJI himself constituted a panel comprising Justices S A Bobde, N V Ramana and Indira Banerjee to probe into the allegations made against him. Later on, Justice Ramane was replaced by Justice Indu Malhotra, after the allegations made by the complainant woman on the closeness of Justice Ramane with the CJI.
On 4th May, after appearing before the committee for the 3rd time, the woman walked out of the committee claiming the atmosphere of the committee was intimidating, frightening and lacks proper procedure. Further, the committee decided to proceed ex-partee and gave clean chit to CJI Ranjan Gogoi.
Since then, the Court is facing a huge uproar from various sections of the society. Various groups of women organisations, lawyers, scholars and civil society members have criticised the judgement on various grounds. On 7th May, several women right activist, including some of the Supreme Court women lawyers, staged protest outside the Supreme Court demanding CJI Rajan Gogoi’s resignation. Activist Annie Raja said, “Women have waged a struggle for very long and will continue to do so for their rights. The SC committee has violated all existing norms. We want a transparent enquiry. We want to protect the justice system. If the SC itself is violating norms, then there will be no value in the system left.” Later on, around 55 women were detained by the police.
This criticism and backlash was not started after the judgment, instead it was there throughout the proceedings. Many questions were raised, right from the legality of the committee to the way it decided to proceed. Here are some of the major questions of law which remained unanswered throughout the process:
Members Of The Committee
Firstly, the women herself raised the question through a letter sent by her to Justice Bobde regarding the inclusion of Justice Ramane into the committee. Further, she raised the question regarding the members of the committee. The formation of the committee does not follow the Vishakha Guidelines, which is now incorporated in The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013(POSH Act). The principles laid down in the act clearly stipulate that the committee should comprise external neutral member with experience in the field of sexual harassment cases. Also, the Chairman of the committee should be a woman. Clearly, both of these basic principles have not been followed in the present case. The women organisation in an open letter to the Supreme Court suggested that the present case ought to be inquired into by retired justices as well as external members of civil society. In the event of non-application of these principles, various young lawyers have registered their protest by sending copies of POSH Act to Supreme Court judges.
Complainant Denied Legal Representation
Secondly, the complainant woman was denied the right to legal representation. She even raised the issue before the committee to allow a lawyer or support with her. She also pointed out before the committee that she had lost hearing in one ear completely due to stress and was undergoing daily treatment for the same. Since the question of legal representation is always to be decided in the context of the specific factual situation in each case.
Here are some of the reasons why it should have been allowed in this particular case:
Since the allegations were against the Chief Justice of India and the court itself has connected the issue with the independence of judiciary. It was the need of the hour to set a precedent (an example) which is backed possibly backed by utmost legal principles and authorities of the Country. Further, in a case of C.L. Subramanian vs Collector of Customs, where a civil servant at an inquiry was pitted against a trained prosecutor, the court took the fact into consideration that the case against him was being handled by a trained prosecutor. It was a good ground for allowing the appellant to engage a legal practitioner to defend him. Similarly, in the given case the complainant woman was defending herself against a person holding the highest seat of the apex court of the country. “While I am of course capable of presenting my facts and evidence but I do not have any training or practical experience of the and procedure,” she said. Therefore, she should have allowed a lawyer to accompany her.
Procedure Followed By The Committee
Thirdly, the question with regards to the working of the committee has been raised by the protestors. As the complainant made it clear that she did inquire about the procedure to be followed by the committee. However, this question was also left unanswered by the committee.
No-one Should Be A Judge In His Own Case
Lastly, one of the principles of natural justice that “no-one should be a judge in his own case” has been violated here. Since the committee was incorporate by none other than Chief Justice himself to inquire upon the allegations made against him is not an ideal application of the principle. Therefore, the question of bias is raised here. The Court in Manak lal v. Dr. Prem Chand held, “the test is not whether in fact, a bias has affected the judgement, the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal.” Thus, it was suggested by women rights organisation that the committee probing the charges should comprise of retired judges rather than sitting Judges.
Further, the report of the committee will not be made public as per the 2003 judgment in Indira Jaising v. Supreme Court of India, the report of a committee constituted as part of the in-house procedure is not liable to be made public, the notice issued Supreme Court states.
As the famous saying goes “justice should not only be done but must be seen to have been done”. Clearly, handling of this case has left grave loose ends as to the proper application of highest judicial principles.