The Supreme Court of India just told the Indian public to go take a long walk off a short pier.
In dismissing the complaint of the staffer who alleged sexual harassment by Chief Justice of India Ranjan Gogoi, a three-judge “enquiry panel” has reaffirmed what we all suspected but never said out loud: judges of the Supreme Court of India believe themselves above the law. Not only are they above the law, they believe they are answerable to no one. The two-paragraph summation of the enquiry committee report is a giant raspberry blown in the face of the public.
Unfairness and opacity
There are two particularly egregious things about what has transpired so far: the unfairness of the procedure followed and the opacity of the process.
Ostensibly the enquiry committee was set up as part of the “in-house procedure” to examine the prima facie validity of the allegations of the complainant. The complainant, however, was required to depose before the committee without any lawyer, without any minutes being recorded and in what was clearly a hostile and intimidatory atmosphere. The fact that the committee made no effort to address her concerns suggests that they saw her as the perpetrator of some heinous offence and not as the victim.
As Scroll.in has reported, the complainant’s allegations are detailed and backed up by material. It relates not just to sexual harassment but also the alleged victimisation of the complainant and her family.
The enquiry committee’s job, as per the Supreme Court’s own 2014 judgement in ADJ X vs High Court of MP – a case in which an additional district and sessions judge levelled sexual harassment charges against a sitting judge of the Madhya Pradesh High Court – is to verify the prima facie nature of the allegations. That is, whether some sort of misconduct is made out from a plain reading of the allegations. This is not supposed to be a detailed and in-depth inquiry into the truth of the allegations. Quite clearly, the enquiry committee went well beyond its remit.
On what basis then did the enquiry committee come to the conclusion that there was “no substance” to the complainant’s allegation?
We do not know and we will not be told. Why? Just so.
Why no transparency for SC?
There is precedent for this. In Indira Jaising v Registrar, Supreme Court of India, the inquiry report into allegations of misbehaviour by three sitting judges of the Karnataka High Court at a resort in Mysuru was sought to be made public.
The Supreme Court simply refused in a shoddily reasoned judgement that offered no justification for why it was not divulging the contents of the report. There too, no explanation or justification was offered as to why the report would not be made public. The court made the jaw-dropping claim that unless impeachment proceedings began, no one had the right to know of any alleged misconduct on the part of the judge.
There is absolutely no justification that can be offered at all for refusing to give the public details about the actions taken or not taken against a constitutional authority. While the Supreme Court is fond of bloviating about the importance of transparency and freedom of information when it comes to all other authorities, it has firmly and resolutely refused to apply these principles to itself.
What is the court afraid of?
Here is what is unfathomable: What does the court think will happen by making a report exonerating Gogoi from the charges open to the public? If he is innocent of the charges, would it not be in his and the institution’s interests for the public to know the full reasons?
A redacted copy of the report would only silence doubters about the fairness of the procedure and the substance of the allegations, but the court does not want to do that. Is it that the court is afraid that it will end up exposing the shoddiness of the procedure and the reasoning by which this “clean chit” has been handed out.
If the committee was going to hand out such a “clean chit” with such a shoddy procedure, one wonders why they even bothered with the rigmarole of a hearing. If it was to convince the public that the Supreme Court took procedure and fairness seriously, then the attempt has failed spectacularly.
The saga over Gogoi is only the latest in a long line of dismal failures on the part of the judiciary to address questions of sexual harassment by judges of the higher judiciary. In just the last decade, we have had one other sitting judge and two retired Supreme Court judges accused of sexual harassment with almost no consequences. Even among the recent instances, the allegations against Gogoi and the manner in which it has been dealt with must mark the nadir of the court’s reputation.
At the height of the controversy over Dipak Misra’s questionable conduct as Chief Justice of India, it was argued in some quarters that he was just one rotten apple whom we should wait for to drop from the tree.
The Gogoi episode has raised a fresh set of questions about the working of the institution itself.