No Institutional Credibility Without Fair Process: Women Lawyers Object To Clean Chit To CJI

On 20.04.2019, a complaint of sexual harassment was submitted against the Chief Justice of India by a woman who had been employed in the Supreme Court as a Junior Court Assistant. Her complaint contained detailed averments on a sworn affidavit along with corroborating materials including phone logs, video recordings, etc. that supported her allegations of sexual harassment, and asked for an external inquiry into the allegations by retired judges of the Supreme Court. What followed thereafter has been a complete travesty of procedural and substantive justice. The Chief Justice constituted an emergency special bench that included himself and proceeded to protest his innocence from the bench. We have raised serious questions about the lawfulness of this hearing, including that it was in violation of the basic tenets of natural justice. In the face of glaring criticism at the injustice of this action, an inquiry committee was set up to look into the complaint, however, this committee was not in line with established principles of law for the enquiry into sexual harassment allegations. No external member was appointed, no support person was designated and no procedure/rules for the conduct of the inquiry were notified. We highlighted how adherence to these principles of due process are crucial in this case to address the immense power imbalance between the complainant and the respondent-CJI.

While these concerns remained unaddressed, and as the inquiry was underway, ever-changing conspiracy theories that alleged the falsity of this complaint were given repeated judicial hearings by the Court. Premier investigation agencies were deployed to look into these conspiracy allegations and the Court has now directed the setting up of a special external inquiry by Retired Justice A K Patnaik. At the same time, when the complainant expressed her need for a neutral external inquiry and for legal representative or a support person to be present with her during proceedings, especially due to her hearing disability, this was not given any heed to. In a detailed press note, she explained how no measures was taken to create a fair and supportive environment for her in the internal inquiry. She has stated that her applications for putting evidence on record were rejected, she was not given a copy of her depositions, and she was told it was an 'informal inquiry' so no procedure would be followed. Finally, she withdrew from participating in the proceedings on 30.04.2019. Instead of addressing these serious concerns, the Committee proceeded ex parte, heard the CJI on 01.05.2019 and summarily dismissed the allegations as "without substance" in a matter of 5 days thereafter, by order dated 06.05.2019.

As outcry against the summary dismissal announced on the Supreme Court website on 06.05.2019 was being expressed, a call for peaceful protest circulated across social media. Protesters who arrived in the morning to assemble outside the Supreme Court were greeted with heavy police and para military deployment, prepared with water cannons. Within moments of commencing the peaceful demonstrations, about 50 persons who had assembled including leaders of women's rights movements, activists, lawyers and others were picked up, put in vans and driven to Police Station, Mandir Marg and detained for over four hours. Force was used to shove women (many who are senior in age) into police vans.

We unequivocally condemn the manner in which any questioning of lapses in this inquiry are being silenced: by the police detentions and now the Bar Council of Indiaand other bar associations issuing diktats against any criticism.The following questions arise:

1. Why were peaceful protesters detained?

The detention of the peaceful protestors yesterday is blatantly illegal and shows the manner in which the entire system of the State has been galvanised to suppress any demand for accountability and due process. There was no threat of violence or even unrest that would lead to the imposition of Orders under Section 144 of the Code of Criminal Procedure, or to prevent protest under the guise of preventive detention. It is incumbent on the Police to show that the area surrounding the Supreme Court is covered by orders validly passed under Section 144 CrPC, which are effective as on date. From a comprehensive review of notifications and orders under Section 144 CrPC as uploaded on the Delhi Police Official Website, as on date, outside of Parliament and other specified parts of Lutyens' Delhi, no Section 144 order appears to be in force for the specific area surrounding the Supreme Court of India.As per law, a section 144 CrPC notice has to be prominently published. Especially if it is one that is 'permanently' re-published every two months due to the perpetual 'sensitivity' of an area and not specific exigent circumstances, it ought to at least be uploaded on the website of the Delhi Police. Section 144 CrPC Orders can be issued for 2 months and would have to be re-published every two months in order for them to be in force. Even otherwise, no law in force can abrogate from the fundamental rights guaranteed under the Constitution and Section 144 CrPC cannot be relied upon to impose a permanent state of emergency or an absolute prohibition from holding public meetings, processions, demonstrations around any building. The act of peacefully protesting alone also cannot invite punishment for disobedience of any alleged Orders under Section 144 of the CrPC. Even in areas where an Order under Section 144 CrPC has been promulgated, the Supreme Court in MadhuLimaye and Ors. vs. Sub-Divisional Magistrate, Monghyr and Ors.has held that there must be actual obstruction, annoyance or danger to human life or safety, or a riot, to constitute an offence of disobeying a Section 144 CrPC Order. The Supreme Court has consistently held that to constitute a reasonable restriction on free speech, there must be real, intimate and rational connection to public order. In the case of Shreya Singhal v. Union of India, it was categorically held that any action which "takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of over breadth." Therefore, the presence of 5 or more persons even in an area where an Order under Section 144 is in force in and of itself can not and does not attract any criminal offence that would justify detention of the protestors. The detention of peaceful protestors was evidently aimed only at quelling free speech and not at maintaining any kind of 'public order'.

2. Why is the report not being made public?

Given that the Supreme Court judges have themselves deemed the present complaint to be a matter of grave public importance, the report exonerating the CJI must be made public after appropriate redaction to withhold identification of persons, so that the public can debate the correctness and soundness of the reasoning for the exoneration to the CJI. Given the public interest in the fair administration of justice vis-a-vis the highest judicial officer, the Committee cannot remain under the cover of confidentiality. The report must at the very least be provided to the complainant. The reliance on Indira Jaising v. Supreme Court of India & Anr. is entirely misplaced as that judgement was in context of the discretion of the CJI to release a 'preliminary inquiry' that was considered as 'ad hoc and not final' under the 'in-house procedure' against judges of a High Court. Since the Committee has not clarified that it is operating under the In House Procedure, the Committee ought not to have selectively relied on Indira Jaising v. Supreme Court of India & Anr. Further, this decision pre-dates the Right to Information of Act, 2005. A subsequent judgement (Rafale Review) of the Supreme Court in 2019 has itself noted that the Right to Information Act has made transparency the rule:

"Reverting back to Section (8) it is clear that Parliament has indeed intended to strengthen democracy and has sought to introduce the highest levels of transparency and openness. With the passing of the Right to Information Act, the citizens fundamental right of expression under Article 19(1) (a) of the Constitution of India, which itself has been recognized as encompassing, a basket of rights has been given fruitful meaning. Section 8(2) of the Act manifests a legal revolution that has been introduced in that, none of the exemptions declared under sub-section(1) of Section 8 or the Official Secrets Act, 1923 can stand in the way of the access to information if the public interest in disclosure overshadows, the harm to the protected interests."

The Indian judiciary is as much a part of this democracy as other organs of the Government. With all State action being subject to public scrutiny under the Right to Information regime, it is unclear how the judiciary is claiming the moral high ground to be above this regime. Further, the Committee has not provided any justification for not supplying a copy of the same to the Complainant, which is a basic tent of natural justice.

3. Why did the Committee proceed ex-parte?

The Complainant withdrew participating from the Committee citing strong reasons of apprehension of bias. On the very next day, the CJI deposed before the Committee, which in and of itself reeks of bias and impropriety. Instead of proceeding ex parte, it was incumbent on the Committee to address the concerns and inculcate faith of the Complainant by ensuring a robust procedure and impartial hearing. As per reports, a sitting Judge of the Supreme Court, Justice D.Y. Chandrachud, wrote a letter to the Committee imploring that it not proceed ex parte and instead remedy all the grievances of the Complainant. This letter was reportedly written after consultation with 17 sitting Supreme Court Judges. The sense of disquiet among sitting Supreme Court judges demonstrates that the procedure adopted by the Committee did not even have the mandate of the full strength of Supreme Court. It is shocking that the Committee has ignored the concerns of not just the Complainant, civil society, members of the legal fraternity but also sitting judges of the Supreme Court.

4. What factual inquiry was conducted?

The Complainant had named several persons as having knowledge or being involved in the subsequent victimization she was put through in her 28 page Affidavit dated 18.04.2019, annexed with evidence running into 136 pages. This included other court staff, Laxman Singh Negi,a senior assistant in the Rajya Sabha Secretariat and the SHO of Tilak Marg Police Station, Naresh Solanki. It is imperative for us to know if the Committee summoned any of these persons and recorded their evidence. We fail to understand how an Inquiry can be undertaken without any fact-finding exercises, summoning witnesses and taking evidence on record and reject the conclusions of such a sham Inquiry.

5. Why is the complainant to be denied legal representation?

We reject any characterization of legal assistance sought by the complainant as unethical or evidence of ulterior motives. Legal representation is a constitutionally protected right. A public letter issued by the Bar Council - the regulatory body tasked with enforcing standards of ethics in the profession - insinuates that the Complainant was not a 'simple lady' since she had put detailed evidence on record. Women complainants are being set to impossible standards with their motives questioned whatever the manner of raising a complaint. Women who raise sexual harassment allegations are either dismissed for being too 'informal' such as a social media post during #MeToo, or too 'formal' such as a detailed 28 page affidavit with supporting annexures. We reiterate that any Complainant of sexual harassment has right to legal representation, and reject the suggestion that her obtaining legal representation in and of itself points to a 'larger conspiracy'.

6. Why should we unquestioningly accept this report?

Despite the repeated violations of natural justice and the unfair manner in which this inquiry was conducted, Bar Council has called for lawyers to "drop this episode from our minds" since those "whose livelihood is attached to it" will "never disrespect the Supreme Court." As lawyers we believe that our first commitment is to the values of the Constitution and we refuse to unquestioning accept an illegal and unjust process. The so-called 'In-House' inquiry by three judges of the Supreme Court was in complete derogation of laws and norms on sexual harassment emanating from Vishakha and the POSH Act. Further,a real apprehension of bias goes to the root of fairness and the Court must refer the complaint to an external body for inquiry into the complaint.

7. What recourse is available to question this process?

There is no recourse available to the Complainant against the alleged report of this Committee except to once again approach the same Supreme Court that has failed her. It in this context that the protests outside the premises of the Supreme Court assume tremendous importance. Viewed thus, the detention of protesters today forms part of a consistent trend: of use of State power to persecute and isolate the complainant from any support, and shield the Supreme Court from accountability. The Supreme Court must provide for an avenue to appeal the findings of the 'Inquiry' before a committee of external persons, preferably retired judges of the Supreme Court. In Addl. District & Sessions Judge 'X' v. High Court of M.P., the Supreme Court has explicitly held "that those who are liable to be affected by the outcome of the "In-House Procedure", have the right to seek judicial redressal, on account of a perceived irregularity. The irregularity may be on account of the violation of the contemplated procedure, or even because of contemplated bias or prejudice. It may be on account of impropriety. The challenge can extend to all subjects on which judicial review can be sought." We urge the Supreme Court to apply its own judgments, and provide for an avenue for meaningful judicial review against the findings of this 'Committee'. The recent events have demonstrated that we cannot repose any faith in the Supreme Court for giving an impartial hearing to a challenge to the final 'Report' of the Committee.

8. What do the actions of the Court signify for the Institution and its stakeholders?

The actions of the Court in the guise of safeguarding judicial independence have greatly jeopardized the credibility of the Institution. The Court, through the inquiry committee and through the silence of other judges, has demonstrated that fundamental values of justice and equality can be ignored when considered inconvenient to those in power.

The Supreme Court has declared that it is above the law - whether it is the Vishakha guidelines, POSH Act, principles of Natural justice, Judicial Review and the law on sexual offences. It is a settled principle that reliable, cogent and consistent evidence of the victim in sexual offences can be a sole ground for conviction, and does not necessarily require any additional corroboration. The questioning of this settled jurisprudence without any context by the Bar Council of India as "absurd, sentimental and reckless judicial verdicts" speaks of the entrenched patriarchal beliefs among the most powerful members of the legal profession. If anything, the handling of the present case epitomises the disproportionate harassment faced by women who speak against sexual harassment they have been subjected to. The message to women working in courts - as lawyers, as staff, as interns - is clear: we aren't necessary, we aren't valued as colleagues, we aren't wanted in this professional world. The #MeToo movement must check itself at the doors of the Supreme Court and has no space in "high security zones."

9. What can the Supreme Court do?

Raising questions is the very essence of democracy - whether it is against the Chief Justice of India - the Prime Minister - the Commissioner of Police - the President of the Bar Council of India or of each other as citizens of this country. The Judiciary upholding our democratic Constitution does not simply mean holding other arms of government responsible - but also means providing an atmosphere for raising questions about the integrity and conduct of judges. The Supreme Court as a judicial institution draws its very legitimacy from the fairness of its processes,and the reasons for its decision. Stamping out questions on these two aspects reveals a court too nervous to stand up to scrutiny.

We demand that the Supreme Court stand up for the values of the Constitution that they took an oath to protect. We reiterate that a fair, independent and impartial committee be set up to inquire into the allegations made by the complainant. This committee must establish and follow a fair procedure. In particular it must allow the complainant the help of a lawyer to correct the imbalance of power between the parties.

Further, we demand that the larger institutional questions raised must be addressed by appropriate modifications to the in-house procedure, including providing for the constitution of and a permanent non-partisan body for cases where the CJI and Judges of the Supreme Court are accused of sexual harassment. This must comprise a procedure that is sensitive to the power imbalance between judges and ordinary persons and other concerns of victims of sexual harassment.  

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