Sexual Harassment as Constitutional Embarrassment? : Let law take its own course, My Lords!

A class-III court staff's allegation of sexual harassment against the Chief Justice of India has shaken up the apex court's elite leadership.

People are wondering whether institutional reaction reflects due process or heavy imposition on the victim and will hearing of sexual harassment result in high institutional or Constitutional embarrassment.

A complaint published in digital media led to a suo moto constitution of special bench called In Re: Matter Of Great Public Importance Touching Upon The Independence Of Judiciary with CJI as the head.

The Gender Sensitisation and Internal Complaints Committee (GSICC) can take up the complaint of the lady staff when she formally filed a complaint.

In fact, the Act provides for rendering necessary assistance to the victim in filing a formal complaint and no format is prescribed for it.

Whether justice depends upon the stature of the accused and level of the victim? If compliant is against high profile personality, will different law come into operation?

Constitution does not envisage one process for ordinary accused of sexual harassment and another for persons occupying high office like CJI.

Certain factual aspects of the entire episode are equally baffling. The former employee describes two incidents of molestation in her affidavit, both of which allegedly took place in October 2018, only days after respondent was appointed as CJI.

She wrote: "I have been victimised for resisting and refusing the unwanted sexual advances of the CJI and my entire family has also been victimised and harassed due to that, including the loss of jobs and subsequently, arrest and torture in police custody.

The CJI has misused his position, office and authority and abused his clout and power to influence the police".

While main allegation needs to be proved, certain consequential events like the dismissal from services are matters of record.

The chronology of events needs to be looked into. She was preferred to work in the residence of CJI, which means special appreciation for her skills and after alleged resistance, she was terminated on charge of 'insubordination, lack of devotion to duty and indiscipline'.

A file of criminal history against her was developed over a period of months. Finally, she says: "It now seems like the harassment, victimisation, and torture will not stop unless I speak out about the origin and motive for the harassment … now there is an imminent danger to my life that I am compelled to speak the whole truth, in order to save myself and my family."

Reportedly the videos she submitted along with complaint indicate that Rajnath Singh, the Union Home Minister, and Amulya Patnaik, the Commissioner of the Delhi Police, were made aware of the incident at least as early as 11 January 2019. Did they act on this or not?

The CJI said from Special Bench with himself, Arun Mishra and Sanjiv Khanna JJ, "There are two offices that are absolutely independent- The Prime Minister's Office (PMO) and that of the Chief Justice of India.

They want to deactivate this (the CJI) considering the sensitive cases lined up next week. And the elections; I was being targeted in this manner as there are no corruption charges against me: This is unbelievable.

I don't think I should stoop so low. After 20 years of service, I have a bank balance of Rs 6.80 lakh. Check it. I have Rs 40 lakh in my Provident Fund (PF). I used to earn more money as a lawyer.

Here I am on the verge of retirement and this is what I get. Nobody can touch me on money, so they find this; this is the reward the CJI gets; I felt should be told from the judicial seat. It's pathetic.

Judges are to work under these conditions. That is why I said good people (lawyers) are not coming to this side (judicial). Who will come?

I will not resign over the charges and will sit in this chair and discharge my functions without any fear. I will decide what I have to in the remaining seven months I have here."

While the allegation is highly sensational and sensitive, the reaction of the respondent CJI equally significant.

Chief Justice Ranjan Gogoi says it is a big conspiracy to deactivate the CJI. Office of SC says it has a bearing on independence of Judiciary.

Finance Minister dubbed the charges as "an assault on institutions". He also attacked the digital media alleging that 'they are wrecking the system from within… using free speech to destroy the judicial institution'.

A lawyer Utsav Bains says he was offered a bribe of Rs 1.5 crore to fix CJI. The BCI officially declared to stand by the CJI and supported his theory of conspiracy to affect independence of Judiciary. Which is the truth and whom to believe?

Under the Constitution, only when an impeachment motion is moved by 100 Lok Sabha MPs or 50 Rajya Sabha MPs, and Parliament accepted it to take up the impeachment process, a committee to probe into allegation against the CJI could be constituted.

There is no other way the allegation against CJI could be probed into. First time, the CJI is facing allegation. This allegation, if proved, would amount to misbehaviour and potential enough to invoke second and final phase of impeachment process.

While concluding the 'hearing' of the Special Bench, Gogoi had remarked, "We are not passing any judicial order at this moment.

We, however, ask media to show restraint, responsibility, and wisdom so that independence of the judiciary is not affected by baseless allegations."

The media reported the entire version of the CJI as part of covering special bench proceedings, where no other party was present.

Women lawyers in criminal law rightly questioned, 'Can the judiciary communicate to the media via a judicial hearing?' It is inequal treatment to the parties to the dispute.

The CJI's voice with Constitutional strength being heard all over, while the complainant-woman, a dismissed-court-staff has nowhere to be heard.

Senior advocate and president of the Gujarat High Court Advocates' Association (GHCAA), Yatin Oza, in an open letter, criticised this kind of handling saying that the impression given was the "pious chair of the Chief Justice" was utilised to prove innocence in the case through the media.

Oza has also posed queries on factual aspects of the sexual harassment allegations.

Another important question he posed was, how the accusing lady court officer was present at CJI's oath-taking ceremony on a personal invitation and her brother was allowed backdoor entry into Supreme Court employment.

The judiciary should not miss opportunity in this crisis to stand as an example to whole of the nation in tackling such an embarrassing allegation against apex judicial authority.

A team of members as envisaged by SHPPR Act, from out of concerned wing might facilitate objective hearing of the case.

Even feeble possibility of judicial bias should be carefully avoided in hearing.

If the accusation is prima facie found to be correct, the legal action as envisaged in the Constitution, that is the process of impeachment may have to be initiated.

Every public office is looking to apex court for a model deal with allegations against the heads of institutions or high offices.

Similarly, every hapless victim is anxiously waiting for a ray of hope for justice. Every step of the Supreme Court is 'the law for future'.

Let no wrong law be fixed, My Lords!

(The writer is former Central Information Commissioner & Professor, School of Law, Bennett University)