Supreme violation of Law of Natural Justice

The Supreme Court’s in-house Justice Bobde Committee enquiring into the allegation of sexual harassment against Chief Justice of India (CJI), Justice Ranjan Gogoi has ruled that there is “no substance in the allegations contained in the Complaint dated 19th April, 2019”. The confidential findings preserved in a “sealed envelope” were arrived at in 10 days of the committee being constituted despite there being significant complaints, from the complainant, about the functioning of the committee.

The process followed by the Committee neither adhered to the procedure laid out in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 nor did it follow due process of law to ensure natural justice to the complainant. The 2013 Act lays out a clear mechanism for an Internal Complaints Committee to be headed by a woman with at least one external expert in the committee. Both these measures are aimed at ensuring neutrality and both provisions of the law were sidestepped in the constitution of the Justice Bobde Committee. Moreover, the committee not allowing a defence lawyer to the complainant violated the laws of natural justice. Being isolated and intimidated the complainant publicly withdrew from the enquiry which proceeded ex-parte. The Committee hid behind the Supreme Court’s own order in the 2003 case of Indira Jaising vs. Supreme Court of India and Anr. to ensure non-disclosure of the report case that long precedes legislation of the 2013 Act as well as the Right to Information Act 2005, from which the upper judiciary has been manoeuvring to ensure its autonomy. This is thus a decision that is dated in the law.

The entire process of inquiry has been against the complainant from the very start. In the first instance the CJI constituted through a special hearing the in-house committee to be chaired by himself and with no woman member in it to probe the complaint against himself. At the special hearing the CJI passed judgement on the complaint as being promoted by vested interests. After much furore against this, the CJI recused himself from the inquiry committee.

It is an admitted fact that the complainant was an employee of the Supreme Court who after being deputed to the CJI’s residential office, was called upon to attend to work outside office hours and in the absence of other staff. Hence it is clear that both, an employment relationship existed and a power relationship existed between the complainant and the CJI. In addition there is evidence that the complainant was repeatedly transferred on allegedly refusing the CJI’s overtures and was finally dismissed from service for ‘coming late’ which was with little doubt an excessive punishment. All of the foregoing would warrant the excessive use of power and establish a prima facie case for an enquiry under law. Sadly there is also evidence of the complainant’s husband and brother, both employees of Delhi police, being suspended without reason, her brother-in-law, appointed to the Supreme Court staff by the CJI himself, being terminated and the arrest of the complainant and her husband. These charges indicate to excessive use of state power and amount to criminal acts in order to harass and intimidate a complainant into silence.

This conduct of the CJI and the entire Supreme Court comes at a time when the autonomy and accountability of the judiciary, to constitutional values, has been in question. It has the Supreme Court saying that there are two sets of laws in the country: one for the citizens and another for those who hold the positions of power. It above all sends a clear signal that the upper judiciary, in our country, is above the law. The highest institution created under the constitution to protect cardinal principles of the constitution is instead subverting due process in law to protect itself.

Sexual harassment pervades all workplaces and remains a grave crime irrespective of who may be involved. Sexual harassment at the workplace is a reflection of relationship of power between men and women and in this case between the head of the country’s judiciary and the fourth highest office holder under our constitution and a young woman employee in an entry level clerical position. The failure of the Supreme Court to deal with this complaint square on is not just a failure of the Supreme Court to protect the rule of law but, is also an attack on women workers and their rights.

It comes as no surprise that the government of the day, led by the BJP, has publicly supported the CJI in his actions since the complaint became public. It is equally deplorable that no other parliamentary party has spoken up on this issue. This is a sad commentary on the country’s political class.

Today in Delhi, the Delhi Police, the Central Reserve Police and its Rapid Action Force forcibly and violently arrested protestors, gathered before the Supreme Court demanding a fair inquiry into the sexual harassment allegation against the CJI and detained them at a police station for several hours. This persistent suppression of voices of dissent remains condemnable and augers poorly for a democracy.

The New Trade Union Initiative demands:

  • The resignation of Mr. Rajan Gogoi as Chief Justice of India,
  • Disclosure of the Justice Bobde Committee Report,
  • A fair independent inquiry into the sexual harassment complaint against the CJI with a committee created strictly under the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013; and

  • The first session of the 17th Lok Sabha take cognisance of this very unfortunate conduct of the Supreme Court and ensure that the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 be made directly and clearly applicable to the President, the Vice President, the Prime Minister and all members of the council of ministers, the CJI and all judges of the Supreme Court and the Speaker of the Lok Sabha and all members of the Rajya Sabha and Lok Sabha and correspondingly for all constitutional office holders and law makers in the states.

Gautam Mody
General Secretary