How The Handling Of The Sexual Harassment Case Against CJI Gogoi All Went Downhill

The handling of the case filed by a junior court staffer against CJI Gogoi is a prime example of how a position of power can be mishandled leading to a travesty of justice.

The said woman staffer stated, “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.”

This is all that allegedly happened, as reported.

Faced with the never ending harassment, she decided to go public with her ordeal, by submitting the affidavit. The affidavit submitted includes video footage showing her husband in handcuffs.

The CJI then allegedly constituted a bench consisting of himself (against whom the allegation of sexual harassment has been made), Justice Arun Mishra and Justice Sanjiv Khanna. This was as Solicitor General Tushar Mehta said, after four web portals had published the allegations by a dismissed woman from the court staff. And hence, it was a matter of great public importance.

And then the bench headed by CJI slayed the allegations – the CJI allegedly said that this allegation was the price he was paying for having an honest career (a PF of little more than 40 lacs and savings of nearly 7 lacs). He went on to add that this allegation was apart of a big conspiracy as he was slated to hear important cases in the next week namely… Meenakshi Lekhi’s petition against Rahul Gandhi’s distortion of the Supreme Court’s last order regarding Rafale deal, a petition against the ban by the Election Commission on the biopic on PM Modi, and another one asking for changing election date in Tamil Nadu because of large scale bribing of voters. The CJI went on to say that, since he was too honest and could not be faulted on that account, this type of insinuation was being hurled at him. The CJI said that the allegations are so low that they are unworthy of a response.

And to add insult to injury, the Solicitor General, the Advocate General, and the President of the Supreme Court Bar Association agreed that the allegations were an attempt to undermine the independence of the judiciary. It appears as if this case is going to give tough competition to the M.J. Akbar versus Priya Ramani case which had 97 lawyers listed for M.J. Akbar as per the legal notice

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And now Finance Minister Jaitley has penned a blog post defending the judiciary.

So, women need to wait and watch this… What is that frightens men so much about any sexual harassment allegation/s that they go into a huddle across all lines, the executive (FM Jaitley) hobnobbing with the judiciary (the Supreme Court)? Moreover, many SC judges are saying that they would prefer male staff at their residential offices in light of the sexual allegations against the CJI.

This is what patriarchy is all about. Blame the victim. Not just the specific victim, but all women! On second thoughts, if a male staff member had alleged sexual harassment charges, it would not be termed straight… pun intended!

The way the harassment case was dealt with by the Supreme Court is a sham. It is not a trial. There was no due process of law that was followed. The lady complainant was absent when this “matter of great public importance” was taken up, only  to be hushed up. The CJI against whom the allegations have been made became a judge in his own case.

These two things go against the rules of natural justice. The rules of natural justice demand that no one should be condemned unheard…in other words, there must be proper hearing. In this case, the woman was not heard at all. Another rule of natural justice says that no man shall be a judge in his own case. In this case, the lady has accused the CJI of sexual  harassment, and the CJI himself heard the case  against himself. This is most unjust. This makes a mockery of justice.

Thankfully, before this travesty of justice continued, the advocates & lawyers of the Supreme Court demanded that an independent investigation of the sexual harassment charges were the only way out of this unfairness. Even a group of distinguished citizens like Arundhati Roy, Aruna Roy, Medha Patkar have said that the serious charges of sexual harassment need an independent probe.

And therefore, it’s now emerged that the senior most Judge (next in line to the CJI Ranjan Gogoi) Justice Bobde will conduct an investigation into the sexual harassment allegations. Justice Bobde has formed a 3 member committee consisting of himself, Justice N. V Ramanna and Justice Indira Banerjee. And a notice has been issued to the woman who made the allegations.

And yet, will this investigation be fair and just? Because Justice Bobde has said that the investigation will be an in house procedure, and so no lawyer  needs to represent the parties. This seems unfair to the complainant woman as she is a commoner. She will be pitted against others who are experts in the law, and these experts will try their best to protect their colleagues, and especially so, when the CJI is involved.

Justice Bobde has said that no time period has been set in which the probe needs to end. And further action is dependent on the findings of the probe. And most important, the findings of the probe will remain confidential. This sounds unreasonable as the public have a right to know the outcome. The CJI publicly assassinated the woman complainant’s character in her absence when he dismissed the allegations. The woman complainant has a right to know what the Supreme Court committee headed by Justice Bobde unravels.

After all, as the late eminent jurist Nani Palkiwala used to say, “Justice should not only be done, but should be seen to be done.”

In the end, it all leads to the fact that there is no procedure laid out for dealing with a case where any judge of the SC or the CJI is accused of sexual harassment. The gender sensitization committee as also the in house mechanism does not state what needs to be done in case a complaint is filed against the CJI. In the Veeraswamy case, the SC opined that as the CJI is involved with the fairness and integrity of the judiciary, the CJI must not be part of evidence of either the defence or the prosecution. The President of India, in such a case, will consult the CJI. The SC had added that after going through the materials placed before the CJI, the CJI will advise the President either about sanctioning prosecution or filing the FIR as the case may be, against any constitutional judge after being satisfied in the matter. Accordingly the President will act upon the CJI’s advice. This is to prevent frivolous complaints and unnecessary harassment to the constitutional judges, including the CJI.

This case will perhaps force the Parliament to make rules of procedure to follow in case such situations arise in the future, wherein, complaints of sexual harassment or any other crime are hurled against the CJI or other constitutional judges. Because as Article 14 of the Indian Constitution states, “the state shall not deny to any person Equality before the law or the equal protection of the laws in the Territory of India.”

A version of this was first published here.

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