Allegations Against The CJI And Taking Up The Issue On The Judicial Side – Key Issues

I wish to highlight certain aspects surrounding the urgent constitution of the bench and ancillary issues –

1. The issue, in my view, ought not to have been taken up on the judicial side at all. The Supreme Court had vide a detailed order laid down procedure to be followed in cases where sexual harassment allegations are made against sitting judges. The same was notified in form of an order in 2015.
   ^[1] Pertinent to note that Justice Arun Mishra was part of the bench which had directed that the procedure be notified. If at all, the CJI considered the matter to have been taken on the judicial side, he could not have been part of the bench. No one can be a judge in one's own cause is the settled law. Furthermore, dealing the issue on the judicial side at the highest level puts the cart before the horse.

2. The victim was not called but vilified. Application for cancellation of her bail was listed for today (which was mentioned by CJI during the hearing) and the CJI sitting in the Chair of Chief Justice of India is calling her as a person with criminal antecedents prejudices the rights of the victim. Of course the order says that the bench does not wish to pass a 'judicial order' and left to the wisdom of the media to report it keeping in mind institutional integrity and take off 'undesirable materials'. If the objective was to convey a message to the media, a press conference should have been called. CJI Gogoi said that a conspiracy has been committed to de-stabilize the office of the Chief Justice of India. Interestingly, the order so passed in today's hearing only contains names of Justices Arun Mishra and Justice Sanjiv Khanna while Justice Gogoi was present and conducted the hearing. Name of Justice Ranjan Gogoi has been omitted from the order while he was part of the bench. Whether the allegations are true or false, this is an absolutely atrocious procedure which has been followed. The hearing looked more like a press conference.

3. There is a chilling effect to this. Even assuming the allegations are incorrect, the victim has a constitutional right to get justice by due process of law. If due process of law is not adhered to, no one could come forward easily and report an alleged crime. Hence if this is not opposed, every judge in the country against whom allegations of sexual harassment are made, may call a hearing, register a suo motu case and narrate his side of the story. This will be counterproductive to the criminal justice system.

4. It is noteworthy that the Attorney General, the Solicitor General and the President of the SCBA in a collective voice assisted the court. Unfortunately, none told the court about the existing mechanism in which allegations of sexual harassment are to be dealt with. As officers of the court, they must have brought to the notice of the court about the mechanism and they ought to followed it. Further, the Ld. Solicitor General voiced that this was a blackmail. He also said that a complaint be registered. It requires an enquiry as to veracity of the allegations and if found false, she should be prosecuted as per law. But till then, procedure established by law has to be followed in letter and spirit.

5. CJI Gogoi in recent past at a number of occasions had declined lawyers from mentioning urgent matters. On the very first day on accepting the office of CJI, Justice Gogoi had made his policy of not the mentioning and shared with the bar that a mechanism will soon be placed in. Only in extremely urgent cases, mentioning was to be allowed. The mechanism never came, and lawyers were again coerced to start mentioning. It was further informed that only matters involving death or life or such important matters to be mentioned. In a case involving direct allegations of sexual harassment against himself, Justice Gogoi found urgency and posted the matter on the judicial side constituting a bench of 3 judges and held a hearing on a holiday, which goes against CJI's own opinion about mentioning.

Since the allegations are against the highest judicial office, in the interest of independence of judiciary, the law should take its own course. In this case, "Not only must Justice be done; it must also be seen to be done" as it affects not an individual but the entire justice delivery system in the country.

It is also trite law that whosoever you may be, the law is above you. Whether the allegations are true or false and whether there is a larger ploy involved to destabilize the institution of judiciary, needs a detailed enquiry.