Some Questions In The Wake Of A Matter Of Great Public Importance

The legal institutional response to such a complaint as mandated under the "In-House Procedure" applicable to Judges of the Supreme Court and the High Court, along with the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal Act) Act, ("POSH Act") read with the Supreme Court Sexual Harassment Regulations, 2013, is for the designated inquiry committee to take cognizance of the complaint, constitute an inquiry committee and give notice to the respondent as to the initiation of such proceedings.

Today, in an unprecedented move beyond the scope of any known procedure or principle of law - whether under the "In House Procedure" or in the POSH Act or the Supreme Court Sexual Harassment Regulations - a notice was issued on the Supreme Court website that a 'Special Bench' was being constituted to hold court at 10:30 am on the mentioning by the Solicitor General, even as the court has been on vacation since Wednesday and is scheduled to reopen only on Monday. The notice states that the purpose of the hearing is "to deal with a matter of great public importance touching upon the independence of the judiciary."

• The Notice for the Hearing

The Bench comprised three judges of the Supreme Court including the respondent himself:

1.Why was the respondent himself sitting in judgment over his own case? That no man shall be a judge in his own cause is one of the most sacrosanct principles of natural justice that the court routinely preaches and enforces in the hundreds of cases it adjudicates every day. The Chief Justice as master of the roster has the sole authority to constitute the Bench. Did he not think it fit to exclude himself from its composition. 

2. Why were no women justices on this Special Bench? Justice Indu Malhotra is the Chairperson of the Internal Complaints Committee of the Supreme Court and was not included in this Special Bench. None of the other women justices of the Supreme Court were included either. Given that the POSH Act is crystal clear that the committee inquiring into sexual harassment must be headed by a woman and must comprise of a majority of women, why was this principle not followed when constituting a Special Bench to respond to the complaint?

3. What was the purpose of this hearing? If the Special Bench was not assembling to deal with the complaint (and hence not following the "In House Procedure"/POSH Act/ Sexual Harassment Regulations) then what was the purpose of convening a Special Bench of the Court? Given that the inquiry is meant to take place behind closed doors while following a prescribed procedure, could these allegations ever be adjudicated in open court?

4. Can this matter be taken up on the judicial side? There is a special "In-House Procedure" governing inquiry into allegations against sitting Judges of the Supreme Court and the High Court. While the said In-House Procedure does not envisage a mechanism to be adopted in the event a complaint is received against the Chief Justice of India themselves, it is pertinent to highlight the procedure laid out otherwise. Upon receiving a complaint against a Judge of the Supreme Court, the CJI shall examine it first, and if it is of a serious nature involving misconduct or impropriety, they shall ask for a response from the concerned Judge. Upon receiving his response, if the CJI is of the opinion that the matter needs a deeper probe, he would constitute a Committee consisting of three Judges of the Supreme Court, which shall then conduct an inquiry into the said Complaint. As such, because the "In House Procedure" prescribes no mechanism for complaints against the CJI, it is clear that a person aggrieved by the acts of the CJI, as well as the inquiry that will follow, will be guided by the procedure as laid down for other Judges in the "In House Procedure", which mandates the constitution of a Committee. The Supreme Court Sexual Harassment Regulations, 2013 also has a specific procedure to be followed in the event of a complaint and do not envisage any open court hearing on the judicial side as a procedure for responding to a complaint.

• The Hearing

At this hearing, as reported on Twitter by legal news websites, the respondent claimed that the complaint is a part of a plot to attack the independence of the judiciary. The complainant was stated to have criminal antecedents and the allegations were stated to be not worthy of any response. Several serious questions arise:

1. Why was the respondent, while he was sitting in his official capacity as the Chief Justice of India as a presiding officer of a Special Bench responding to personal allegations against him?

2. Why did the respondent make personal statements about his bank balance and reputation during a court hearing, where he was speaking as the Chief Justice of India (and not a press conference, where he could have spoken in his personal capacity)? Furthermore, what was the relevance of these statements, apart from prejudicing the case of the complainant by appealing to irrelevant facts to create sympathy?

3. What fair process allows the case of the complainant to be prejudiced even before the start of any inquiry by allowing the respondent himself, in his official capacity and from his position of power, to declare mala fides against the complaint to the public at large?

4. What due process allows a public hearing in a court of law without the presence and participation of a representative of the complainant while statements about the merits of her case and her bona fides are pronounced upon?

5. Why did none of the officers of the court (AG/SG) or the officer bearers of the Supreme Court Bar Association who were present highlight to the Special Bench the In-House Procedure or the Supreme Court Sexual Harassment Regulations, 2013? While the AG was quick to point at confidentiality obligations upon participants in an inquiry under the POSH Act (which has not even begun at this stage) and therefore decry the public naming of the Chief Justice as the respondent in the complaint, the actual process under the Act to deal with the complaint was not deemed to be important enough to mention.

6. What was the role of the Attorney General and Solicitor General? As per reports, the matter was 'mentioned' by the Solicitor General. 'Mentioning' is a procedure used for urgent listing of cases, which incidentally the current CJI has repeatedly discouraged and criticised. Clearly, there was no matter to be listed on an urgent basis and certainly no matter concerning the Government of India (since the Attorney General and Solicitor General are law officers of the Government of India). Additionally, the order passed by the Court shows the case as a 'Suo-Motu Writ Petition (Civil) under the Court's inherent jurisdiction'. This indicates that the Judges instituted this writ petition themselves, which is contrary to the reports that it was mentioned by the Solicitor General. Why did the AG and SG, immediately align themselves with the Respondent-CJI (as may be gleaned from the records of the proceedings that are available on social media)? This immediate unwavering support for the respondent expressed by President of Supreme Court Bar Association without there having been any form of inquiry sends out a clear signal: that there is no space for a woman, especially a woman lawyer, to come out with her experiences of sexual harassment without having the doyens of the legal fraternity immediately turning upon her.

• Judicial Independence

The serious question of judicial independence was raised both as the alleged purpose for conveying a hearing by a Special Bench as well as at the hearing itself with no less than the respondent himself stating this the complaint is only a plot to attack the credibility and independence of the judiciary.

However, the idea behind an In-House Procedure, adopted by a Full Court Meeting (all the Judges) of the Supreme Court on 15.12.1999, was to safeguard the independence of the judiciary since the complaint would be examined by the peers of the respondent Judge; and also "preserve the faith of the people in the independence and impartiality of the judicial process" since it would demonstrate that there exists a machinery for the examination of complaints against a Judge, and that members of the higher judiciary are also accountable for their conduct.

Therefore, convening a Special Bench in order to allege an attack on the independence of the judiciary, instead of following due process and adopting the In-House Procedure is not only ironic, but also raises important questions about fair procedure:

1. Why are specific allegations against a specific individual Justice of the court necessarily conflated with attacks against the institution? Judicial independence cannot mean that no complaints of misconduct can ever be made against a specific individual justice of the court. In fact, the Supreme Court has itself in the past experienced and adjudicated upon instances and allegations of sexual harassment by sitting/retired Judges, without ever branding it as an attack on judicial independence. In the instance of one particular retired judge, the Supreme Court fact-finding committee found that the allegations of sexual harassment, were prima facie made out. The #MeToo movement showed us how powerful men hide behind the safety of their institutions when faced with allegations of sexual harassment. But that the highest court of justice of the country would allow that is a smite on the constitutional promise of dignity, equality and due process of law.

2. Independence from what?: The history of the phrase 'independence of the judiciary' evolved as a safeguard against undue interference by the executive. It appears that in the present moment, the executive and judicial wings are completely in tandem with their mutual contempt for complainants and due process to be followed when adjudicating complaints of sexual harassment. The matter of great public importance appears less to be about judicial independence and more about the now established fact that the legal profession operates as a men's club where any woman who speaks up will be collectively shamed and sullied without any expectation of constitutional justice.

3. Does Judicial Independence mean an embargo on sexual harassment complaints against judges? Judicial Independence does not and cannot mean 'independence' from any inquiry when serious allegations such as those outlined in the present complaint are made against a specific judicial officer. None of the highest ranking judicial and legal officers of this country have explained which institution/person/external influence they foresee this threat from. The manner of handling the complaint against the CJI by the Supreme Court today also raises an important question: having adjudicated upon cases of sexual harassment by Judges and other matters of judicial impropriety in the past without it becoming an issue about the judicial system as a whole, what was the need to adopt an unprecedented method of convening a Special Bench to address a personal allegation against the CJI (without committing to the adherence to due procedure in its adjudication)?

• The Order

At the end of the hearing, the Special Bench passed an order observing as follows:

"Having considered the matter, we refrain from passing any judicial order at this moment leaving it to the wisdom of the media to show restraint, act responsibly as is expected from them and accordingly decide what should or should not be published as wild and scandalous allegations undermine and irreparably damage reputation and negate the independence of the judiciary. We would therefore at this juncture leave it to the media to take off such material which is undesirable."

This raises further questions:

1. Why did the corum in this judicial order not include all three presiding members? The order passed today shockingly did not contain the name of the CJI in the Coram. The reporting on the hearing is silent as to whether the Chief Justice recused himself at the hearing. If he did, why did he make such extensive comments at the hearing? If he intended to recuse himself, why did the master of the roster convene a Special Bench that included himself? If he recused himself, why has the Special Bench passed any speaking order or conducted any hearing at all when the regular procedure is to pass an order for the matter to be listed before another Bench in the face of the recusal? Why does the order nowhere reflect the fact that the Chief Justice was present on the Special Bench and made several statements from the Bench? It is a matter of practice and propriety that the judicial record should contain an accurate record of the proceedings before the Court.

2. Why are these "wild and scandalous allegations"? - A bare reading of the complaint and the news reporting on it shows that the Complainant has given a detailed account of each incident that took place, and has produced evidence in support of her claims. While Judges of the Supreme Court may consider allegations of sexual harassment against them 'wild' or scandalous', as young women from the profession, these allegations seem all too relatable. There have been several instances of former interns of Supreme Court judges (and lawyers) raising allegations of predatory behaviour by them, and a reading of those accounts along with personal experiences shows that the signs of predatory behaviour are disturbingly similar.

3. Can the Judiciary communicate to the media via a judicial hearing? The respondent himself was a part of the four judges who held a historic press conference that addressed the public on issues of grave importance in relation to judicial independence. The allegations are not against the office of the Chief Justice. They are against the individual as a judicial officer. It was completely wrong for the individual to respond to these allegations and effectively communicate to the media from the Bench.

4. Chilling Effect - under what power/authority are judges in a 'non-judicial order' directing for restraint in media reporting?: It is also relevant to be noted that such a 'communication' from the Apex court in the country has a chilling effect on the media and this will in all practicality act as a restraint on the media from reporting news related to the issue.

This leaves us with a final question:

What justice for aggrieved persons? If in the face of the complaint, a person can expect to be publicly vilified, deemed to be "wild and scandalous" even before any enquiry, and has to face the entire collective might of the Judiciary as an institution, the officers of the Government of India and the Bar Council of India, how do we ever claim to offer constitutional justice to women who experience sexual harassment?

The Women in Criminal Law Association (WCLA) is a collaborative group for women in criminal litigation that aims to share knowledge, build skills, and create inclusive professional networks.

WCLA has released a separate statement that you can read here: 

Views are personal only.