“Unprecedented” is a word that has been used in several contexts in the last three days. Since April 20, when Scroll.in, as well as The Wire, The Caravan and The Leaflet, ran a story based on the sworn affidavit of a former junior assistant at the Supreme Court alleging sexual harassment and abuse of power by Chief Justice of India Ranjan Gogoi, that word has been in currency.

All four media organisations had separately sent questions to the chief justice the previous day, seeking his response to the allegations. While he did not respond directly, an official statement was sent by the secretary general of the Supreme Court on the morning of April 20. Scroll.in incorporated the response in its report and ran the entire text separately as well. In other words, it waited for the response before publishing the story.

The allegations are unprecedented because such a charge of sexual harassment has never been made against any other Chief Justice of India. The mechanism that exists in the Supreme Court to deal with such matters requires the chief justice to assess whether the complaint should be heard. There is no precedent for how to deal with a complaint when the chief justice himself is the respondent.

The top court’s response to the allegations is also unprecedented. Just hours after the story appeared, the chief justice summoned a bench comprising himself and Justices Arun Mishra and Sanjeev Khanna to discuss a “matter of great public importance touching upon the independence of the judiciary”.

Speaking first, Gogoi said he believed the judiciary was under threat. He alleged that “there are bigger forces behind these allegations” that “want to deactivate the office of the CJI”. About the complainant, he said she had “a criminal background” and there were two FIRs pending against her. In fact, there is only one case against her now and the police’s application to cancel her bail in that matter will be heard on April 24.

At the end of the Supreme Court’s hearing, which was not really a hearing since there was no complainant, an order, which was not a judicial order, was issued. It was signed by Mishra and Khanna but not the chief justice. It suggested that the media act responsibly before publishing such allegations. It did not clarify what would happen if the media persisted.

In any case, the complaint had been prejudged when the secretary general, in his response to the four media organisations, called it “completely and absolutely false and scurrilous” and suggested there were “mischevious forces behind all this, with an intention to malign the institution”.

On Monday, Justice Gogoi asked Justice SA Bobde, the second-most senior judge, to decide how to proceed in the matter, The Indian Express reported. A bench consisting of Justice Arun Mishra, Justice Rohinton Nariman and Justice Deepak Gupta is slated to consider the matter on Tuesday.

Before this, to end the dramatic weekend came Union Finance Minister Arun Jaitley’s Facebook post on April 21. It contains a thinly veiled threat of contempt of court proceedings against those who have reported the contents of the affidavit. It is more than unusual, given the circumstances, for a cabinet minister to openly recommend a course of action to the court.

Ranjan Gogoi is the only Chief Justice of India ever to face a sexual harassment allegation. Photo credit: IANS
Ranjan Gogoi is the only Chief Justice of India ever to face a sexual harassment allegation. Photo credit: IANS

Backhanded compliment

My intention in this column is not to go into the complaint of sexual harassment, although it is important and cannot be dismissed in the way it was by the court, but to specifically address Jaitley’s post, titled “It’s Time to Stand up With the Judiciary”.

Jaitley begins by questioning the media organisations that ran the story. “When four digital media organisations with an unparalleled track record of ‘institutional disruption’ send similar questionnaires to the Chief Justice of India,” he writes, “there is obviously something more than meets the eye.”

To be charitable, perhaps Jaitley does not know how credible and professional media organisations work as his expertise is in law. There is no conspiracy nor anything strange about media organisations sending questions. This is a routine that all respectable media platforms follow, of giving a person or persons against whom allegations have been made, an opportunity to respond.

In this instance, the questions are bound to be “similar” because the material on which they are based, namely the affidavit of the complainant, is the same. That the questions were sent the same day merely reiterates that these media organisations did due diligence and did not rush to publish without giving the other side a chance to respond.

Scroll.in published in full the response received from the secretary general and also included the relevant portion in its story. The story itself went through an editorial process of verification, as is the norm followed for all stories. Only after that was it published.

To suggest, as Jaitley does, that “for the ‘institutional disruptors’ there are no red lines”, is disingenuous, uninformed and patently untrue. The main difference between a newspaper and a digital media platform is that one appears in print and the other only in digital form. Now even that difference has been blurred as the legacy print media has established a strong digital presence. Credible media platforms, print or digital, abide by the same journalistic norms. They are also answerable to the same laws if they fail to do so.

Indeed, by referring to Scroll.in and the other media platforms that ran the story as “institutional disruptors”, Jaitley has given them a backhanded compliment. This is precisely what the media in a democracy ought to be doing. Such disruption has opened the way for a much more lively, interrogative and informative media space, an asset in a democracy.

“Independent judiciary and free media are both essential in a vibrant democracy,” Jaitley writes. “Both have to live with each other. In order to co-exist, both must respect the respective rights of each of these institutions. One cannot take upon itself the task of destroying the other.”

That is precisely the point. Why, if he believes this, does the minister recommend clamping down on the free media with threats, such as of contempt of court proceedings, instead of suggesting that the court assert its independence and credibility by following due process in dealing with the allegations made?

Also, perhaps Jaitley and his party ought to introspect about their own record in the last five years on respecting the independence of the judiciary and encouraging a free press. Their list of transgressions is too long to be addressed in this space.

Jaitley’s post notwithstanding, readers of Scroll.in should take the time to read in full all the stories around the affidavit filed by the former junior court assistant, summed up here. Apart from the digital media, almost every major English language newspaper has carried reports, comment and editorials on the matter.

The allegation, which cannot be easily dismissed because of the detailed documentation attached to the affidavit, the response of the chief justice and the Supreme Court, the statements issued by the Supreme Court Bar Association, the Women in Criminal Law Association, and the Supreme Court Advocates-On-Record Association, together highlight the importance of this moment for the judiciary, the media and Indian democracy.

You can write to the Readers’ Editor at readerseditor@scroll.in.

Also read: Chief Justice of India sexually harassed me, says former SC staffer in affidavit to 22 judges

What you need to know about the allegations against CJI Ranjan Gogoi – and the ‘special hearing’