Dealing With Allegations Of Sexual Harassment Against The CJI

In the past, there have been allegations against sitting Chief Justices but no one has been accused of sexual harassment till recently. Extremely unfortunate and unprecedented incidents happened in the past few days. For the first time, serious allegations of sexual harassment have been leveled against the sitting Chief Justice of India (CJI) Justice Ranjan Gogoi. A lawyer wrote a post on social media (facebook) that he was offered a hefty sum to help in falsely implicating the CJI by someone and many people including disgruntled judges and politicians were involved. Two mutually exclusive proceedings have been instituted. One, an in-house committee headed by Justice Bobde, Justice Indira Banerjee and Justice Indu Malhotra. Second, in a suo motu writ petition, Justice A.K.Patnaik (Retd) has been assigned the task to probe the contents of the affidavit filed by the lawyer leveling a conspiracy theory of attempt to falsely implicating the CJI. The two proceedings, one administrative and other judicial are running parallel to each other and are said to be mutually exclusive. But on the face of it, the two committees are essentially probing a similar issue and there is a potential danger of reaching contradictory results which will lead to another crisis, if so happens.

Issues

Three very relevant issues arise – One, what is the law dealing with allegations against sitting judges (High Court judges, Chief Justices of High Courts and Supreme Court judges). Second, is there a law dealing with allegations against the Chief Justice of India or does CJI constitute a separate class. And third, if not, how should the gap be filled.

Status of CJI

Before we venture in, we must bear in mind that the Chief Justice of India is the senior most judge of the country and of the Supreme Court. Unlike High Courts, where the Chief Justices are of the respective High Courts and not of the States, i.e. Justice XYZ is the Chief Justice of the High Court of Gujarat and not the Chief Justice of the State of Gujarat; the CJI is the Chief Justice of India and not the Chief Justice of the Supreme Court of India. Clearly, the founding fathers and mothers wanted to give a special status to the post of CJI and that is why a different nomenclature. The CJI holds administrative control of the Supreme Court and has a variety of powers including allocation of work to other judges. But one must remember when allegations of sexual harassment are made against an individual, those being offence against the human body, those are not against an institution. Allegations of offences against human body, even if made against the CJI do not attack or threaten the independence of the judiciary. CJI, afterall, is a member of judiciary and not judiciary in himself.

Key provisions and documents

To look into this issue, and to see how judges hold a special position under law, one needs to examine few provisions and documents – Section 77 of the Indian Penal Code 1860, The Judges (Inquiry) Act, 1968, The Judges (Inquiry) Rules, 1969, The Judges Protection Act, 1985, Veeraswami judgment ((1991) 3 SCC 655), Vishakha Case ((1997) 6 SCC 241), X v High Court of M.P ((2015) 4 SCC 91), Prevention of Sexual Harassment at workplace Act, 2013 (POSH), Gender Sensitization & Sexual Harassment of women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013, Gender Sensitization and Sexual Harassment of Women at Supreme Court (Prevention, Prohibition and Redressal) Guidelines, 2015 and the Report of the Committee on In-House Procedure by the Supreme Court (dated 1999 but notified on the website in November 2015 after a judicial order).

Analysis

• Section 77 IPC holds that nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law. For eg – A judge punishing an accused to be hanged is not guilty of murder as he does so by virtue of his office.
• The Judges Inquiry Act and Rules were framed under Article 124(5) of the Constitution dealing with the impeachment of judges. Interestingly, the expression 'Judge' for the purposes of this legislation includes Chief Justice of India. No special treatment is given to the CJI.
• Section 3 of the Judges Protection Act, 1985 mandates that no court shall entertain or continue any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function. However this shall not debar or affect in any manner the power of the Central Government or the State Government or the Supreme Court of India or any High Court or any other authority under any law for the time being in force to take such action (whether by way of civil, criminal, or departmental proceedings or otherwise) against any person who is or was a Judge.
• Thereby, the government can initiate criminal proceedings against a sitting or former judge of a superior court under sub section (2) of Section 3 of Judges (Protection) Act, 1985 if it can produce material evidence to show that a judgment was passed after taking a bribe.
• In Veeraswami's case, the Supreme Court held that no criminal case shall be registered under Section 154, Cr.P.C., against a Judge of the High Court, Chief Justice of High Court or Judge of the Supreme Court unless the CJI is consulted in the matter and that due regard must be given by the government to the opinion expressed by the CJI. If the CJI is of opinion that it is not a fit case for proceeding under the Act, the case shall not be registered. If the CJI allows the FIR to be registered, the government shall, for the second time, consult him on the question of granting sanction for prosecution.
• It was further held that if the CJI himself is the person against whom the allegations of criminal misconduct are received the government shall consult any other Judge or Judges of the Supreme Court.
• Therefore, this judgment does not completely prohibit registration of FIR against a judge; what it requires is that consent of the CJI is required for registering FIR against a judge of High Court or of Supreme Court. Moreover, if the FIR is to be registered against the CJI himself, then the Government may consult any other judge or judges of the Supreme Court.
• This case specifically dealt with the Prevention of Corruption Act in judiciary, but the majority judgment had extended its ambit to "any criminal case".
• We have an 'In-House Procedure' specifically designed by a dedicated committee and notified by the Supreme Court to deal with charges of misconduct against sitting judges of the High Court, Chief Justices of High Courts and judges of the Supreme Court. In allegations against judges of the Supreme Court, it requires the CJI to constitute a three-member panel of Supreme Court judges to enquire into a complaint of misconduct received by the CJI against a sitting judge. The CJI supervises and enforces the outcome of this inquiry.
• This In House procedure, however, does not expressly provide for a mechanism to constitute a committee when the complaint is against the CJI himself. Furthermore, it seems that it was drafted on an assumption that no allegation will come up against the CJI as the post of CJI has been vested with huge powers under this procedure. The argument that CJI is governed by the 'In-House Procedure' by virtue of being a judge of the Supreme Court is flawed. Until and unless a procedure is laid down expressly, it cannot be extended to anyone.
• But there is a twist. In a case of sexual harassment allegations against a sitting judge of the Madhya Pradesh High Court, the Supreme Court in 2014 held that the In-House Procedure can govern the inquiry process (X v. High Court of M.P ((2015) 4 SCC 91). It also held that the inquiry procedure can be moulded in "the facts and circumstances of a given case, to ensure that the investigative process affords safeguards, against favoritism, prejudice or bias."
• Therefore, the constitution and procedure, even under the In-House Procedure can be significantly altered. The mode of alteration is again not expressed anywhere. In the present issue before us, the 2^nd most senior judge Justice Bobde has been entrusted this task who chose Justice Indira Banerjee and Justice N.V.Ramana (who has since recused paving way for Justice Indu Malhotra). An argument may be raised that Justice Gogoi recommended elevation of both Justices Indu Malhotra and Indira Banerjee therefore taking action against the appointing authority himself is a distant dream. However, this argument is also flawed as every Supreme Court judge is an authority in herself and is duty bound to take independent decision.
• The POSH Act and the Gender Sensitisation & Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal), Regulations, 2013 and the 2015 Guidelines made under it although do not expressly exclude judges of the Supreme Court from its ambit but under the 2013 Regulations, the CJI has overall supervision and control over the GSICC including nomination and appointment of members of the GSICC and the power to accept or reject the recommendation of ICC post enquiry.
• Furthermore, to trigger action under the 2013 Regulations, a complaint has to be made under it. In the present case there is no complaint made under these Regulations therefore they have no application. Even otherwise, in a significant departure, Section 2(a) which defines an aggrieved person excludes a female already governed by the Supreme Court Service Regulations.

Conclusion

Three things are clear. Firstly, there is a detailed procedure to deal with judges of High Courts, Chief Justices of High Court and Judges of the Supreme Court. Secondly, the CJI is a judge of the Supreme Court and takes no separate oath but he enjoys a special status under various laws as he is the administrative head and huge powers vest in the post including handling complaints against other judges. And thirdly, there is no dedicated law to deal with allegations of sexual harassment against the CJI.

The way forward

Neither the In-House Procedure nor the 2013 Regulations expressly apply to case where sexual harassment is alleged against the CJI. This calls for either an amendment in the In House Procedure or a dedicated separate procedure to deal with such a case. The amendment, if brought in, shall keep in mind principles for departmental inquiries into sexual harassment. In my view, the Full Court should exercise this power and lay down composition of the committee empowered to enquire into the issue. This committee shall have adequate representation and in any case not less than 50% members as women. I have reservations in inserting external members as it may lead to attempts of sponsored complaints to topple the institution of CJI. It has to be internal but should exclude judges in whose elevation, the CJI participated as a member of the collegium as far as possible. If a separate procedure is to be laid down, it should be done in consonance with powers under the Supreme Court Rules, 2013 and Article 145 of the Constitution.

Another alternate way to deal with such allegations is to use the outcome from Veeraswamy's judgment. In Veeraswamy's case, a Constitution Bench of the Court held that if the CJI himself is the person against whom the allegations of criminal misconduct are received the government shall consult any other Judge or Judges of the Supreme Court. To deal with an allegation against the CJI, a dedicated mix of sittign and retired judges including retired chief justices of impeccable integrity may be prescribed. There may be an apprehension that prescribing a procedure prior to any such allegation may lead to frivolous attempts on CJI by virtue of his post with a view to influence the members of the committee based on political inclinations. To answer this apprehension, the members of the selection committee to select the probe committee which may include sitting judges (but not in whose elevation, the CJI participated as collegiate assessor), retired Chief Justices, members of the bar and members of investigative agencies, if required, may be prescribed. Interference of the Executive however should be strictly barred. The entire episode deserves a deeper attention. I hope, this episode is never repeated, but if it is, we must be better equipped to deal with it.

Namit Saxena is a Lawyer practicing in Supreme Court of India.

Views are personal.