The case that made India’s judiciary lose pride'

When the former employee of the Supreme Court sent a complaint to all the Judges and an In-House Committee was constituted to enquire into the same, it was thought that the Supreme Court was acting under rule of law and Justice could be rendered without any discrimination, be it a pauper or a prince.  The aggrieved woman employee only asked for the assistance of a lawyer to help her in enquiry which was promptly rejected. Her further request or video recording and summoning of telephone call records were also denied. When she walked out alleging denial of reasonable opportunity, the committee proceeded with the enquiry exparte. The Chief Justice of India, it is told came up before the Committee.  The Committee quickly submitted its report.  But to whom is a mystery.  A two sentence statement came from registrar of the Supreme Court that the report will not be made public.  To justify its disclosure, surprisingly he quoted a 2013 judgment of the same court which was rendered before the advent of the RTI Act.

The aggrieved female employee promptly remarked “it is highly disappointing”.  Hundreds of activists who held demonstration in front of the court protesting against the denial of reasonable opportunity being denied to a female employee were rounded off.   Promptly prohibitory orders were issued to prevent any further demonstrations in the vicinity of the court. The request of the aggrieved woman to furnish a copy of the report prepared on the basis of her complaint is yet to be conceded. Has the sentinel of justice acquitted itself with glory? is the question haunting the minds of millions of the peoples of this country.

The statement of the aggrieved woman that she was disappointed with the proceedings of the in-house committee reminded me of a scene from the Madurai canto of Silappadikaram (The Tale of an Anklet), the famous Tamil Epic (written 17 centuries before) describes the heroine of the story Kannagi walking out of the Pandian court in disgust and while walking in the streets questions the people of Madurai about their keeping silent on the injustice meted to her. Ilango Adigal, the author captures the scene and wrote:

"Are there good men here ? Are there good men 

who cherish their children 

and guard them with care?

Are there men here? Are there such men?”

I used to be proud of our judicial system.  The main reason that while the neighbouring countries in the sub-continent got their judiciary in a shaken state, our judiciary walked with majesty for the last seven decades. Sri Lanka’s Supreme Court Chief Justice Shirani Bandaranayake was impeached for not toeing the line of President Rajapaksa.  Bangladesh Supreme Court Chief Justice Surendra Kumar Sinha now exiled in Canada was forced to resign since he delivered a judgment striking down 16th amendment of their Constitution and held that no judge of the higher judiciary can be impeached by the Parliament.

We have had cases of Supreme Court Judges misbehaviour (while in service or retirement) being enquired into by in-house committees of the court.  This is the first time a Chief Justice of India is faced with serious charges levelled by a Class III female employee.  The charges are not merely sexual harassment, but also subsequent denial of employment not only to her but also to her cousin.  Matters did not end therein. Her husband as well as her brother-in-law who were members of the police force were facing suspension.  Besides she is facing criminal case and arrest.  Even the organised Bar is itching for a contempt action to be initiated against her.

In normal course an enquiry  relating to sexual harassment would have to be enquired into by an Internal Complaints Committee (ICC)  constituted under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.  The reason for enacting the Act was the directions given by the Supreme Court in what is known as the Vishaka’s case wherein every employer must enquire into the complaints made by their women employees alleging sexual harassment.  The court said until the Parliament makes a law their judgment will be the law of the land. Even before the Parliamentary Act was enacted, the Supreme Court framed regulations to deal with all concerned.  It was under these regulations complaint made against Justice A.K.Ganguly was enquired by a Committee.  When allegations of similar nature  were made against Justice Swatanter Kumar, he promptly moved the Delhi High Court and got a restrained order from proceeding with any enquiry and also publications in media. The case is still pending.

The in-house committee constituted to enquire into misbehaviour of Judges of the higher judiciary was a invention by the court itself. It is a judge made procedure.  If any complaint against a sitting judge is made, the Chief Justice of India will constitute a committee known as the in-house committee which will enquire into the complaint and give a report. If the report is adverse to the judge concerned, then the Chief Justice of India will ask the judge to resign from his office.  In case of refusal, then he may request the heads of the parliamentary bodies to initiate impeachment proceedings against the judge concerned.  So far so good. But when the Chief Justice of India himself is accused of misbehaviour, then what is the procedure is not set out in the case evolving in-house procedure method (C.Ravichandran Iyer’s case ,1995) . In this episode, even before an in-house committee was constituted (who constituted the committee is yet another mystery) to suo motu proceedings were initiated by the Chief Justice of India against whom the allegations have been made by the  female employee. The first suo motu proceedings was without any case before them and was labelled as a case relating to saving of independence of judiciary.  To the shock of many the Chief Justice of India himself sat as a bench with two other Judges and made many comments during the proceedings. Finally the order released did not contain his name and signature.  If he cannot pass an order, then why at all sit in a bench is a question asked by many.

The next suo motu case was on the basis of a complaint given by an advocate Utsav Bains who alleged that there was a greater conspiracy to implicate the Chief Justice by making false complaint so that his office can be compromised. Again a three judge bench hurriedly summoned four Chiefs of the Police force including the CBI, IB & NIA. Then they appointed one retired Supreme Court Judge A.K.Patnaik to go into the larger conspiracy. When it was pointed out that if they presume there is a conspiracy involved even before enquiring into the complaint made by the female employee, the bench observed that their proceedings will not hamper any enquiry into the complaint made by her.

It was thereafter the in-house committee was constituted.  In the three member committee, the inclusion of Justice N.V.Ramana when objected to by the complainant alleging that he was a close family friend of the CJI, he recused himself being part of the bench. Thereafter another woman judge was included in the in-house committee.  The committee did not let out its procedure and modalities in making the enquiry.  They simply summoned the female employee who sent the complaint.  Intimidated by the presence of three highly learned judges of the highest court, the woman employee demanded that she be assisted by a lawyer of her choice.  This was a very elementary demand and certainly part of affording reasonable opportunity in making an enquiry into a complaint.

Even four decades before a Class IV employee pitted against a move house and faced with a charges of misconduct when she demanded the assistance of a lawyer in her enquiry, the same was denied.  When finally she was dismissed after conducting an exparte enquiry, she moved the Kerala High Court.  Justice Bhaskaran ruled that it was a fight between the two unequals and in such a circumstance she must have been provided with the assistance of a lawyer.

The press reports shows that atleast one sitting Judge of the Supreme Court Dhananjay Chandrachud wrote to the committee that they should not conduct exparte proceedings after the walking out of the female employee and that she should be given all opportunities. The in-house committee’s proceedings even after the exit of the female employee will make a court martial proceedings conducted by the armed forced against an erring army man put to shame.  At least members of the armed forces are denied any fundamental right in terms of Article 33 of the Constitution.  But in this case, a dismissed female employee of the court had sent a written complaint alleging serious charges against the CJI and the whole world awaits as to how the court is going to handle such an issue as it has no legal precedents laid before.

As and when the exparte report of the enquiry made by three Hon’ble Judges of the Supreme Court is given to the female employee, she will have the only legal course of challenging it before the Delhi High Court in which event this will be the second time the Supreme Court will be arrayed as a Respondent in a case filed before an High Court. If the enquiry was conducted as per the 2013 SHW Act, atleast the Act provides for an appeal against the findings of the Internal Complaints Committee. In this case, by labelling committee as an in-house committee and not specifying any procedure or modalities, one wonders where the report of the committee will be sent and even if it is sent to the CJI whether he will convene a meeting of the full court for discussing the same is a moot question.  Even if the meeting of the all the Judges of the  Supreme Court wanted an action against the CJI, it can only be done by way of impeachment by the Parliament. There are no other method evolved so far and even the Judicial Accountability Bill which was introduced in the Rajya Sabha to deal with such matters is gathering dust.

The pride one took in the survival of the Indian Judiciary and delivering goods over the last seven decades, has at last failed. Once again Robert H. Jackson of the U.S.Supreme Court found proved:

“We are not final because we are infallible, but we are infallible only because we are final”