The Constitution of India is supreme and the Legislature, Judiciary and Executive are the three important pillars on the basis of which our democracy functions. The role of the Legislature is to enact the law while that of the Judiciary is to interpret the law and the Executive has to execute the law through the state machinery and its various agencies. The Chief Justice of India (CJI) is the head of the Judiciary and is also bound by law and the Constitution – like any other citizen.
On 19 April 2019, a woman formerly employed as a Junior Court Assistant (JCA) at the Supreme Court and later at the Residence Office of the CJI, in a sworn affidavit, alleged that the Chief Justice of India Ranjan Gogoi made sexual advances towards her on October 10 and 11, 2018 (The Logical Indian, 2019). Only a week prior to this alleged incident on October 3, Justice Gogoi was sworn in as the 46th Chief Justice of India.
What followed was a formation of an in-house committee comprising three judges of the apex court viz. Justices SA Bobde, Indu Malhotra and Indira Banerjee to inquire into the allegations (The Economic Times, 2019). However, on 30 April 2019 during the third sitting of the committee, the woman levelling those allegations later walked out of the inquiry committee raising objections on the manner in which the committee was conducting its inquiry (Free Press Journal, 2019).
Article 14 of the Constitution provides for Equality before the Law and Equal Protection of the Law. While equality before the law is a negative concept implying the absence of any special treatment on grounds of social, economic reasons or on the basis of birth, caste, creed or the like, in favour of any individual; equal protection of the law is a positive concept implying the right to equality of treatment in equal circumstances.
This principle of equality is the essence of democracy and was violated when the 3-member-committee formed by the Supreme Court heard and decided the matter ex-parte without the complainant given the opportunity of being heard, either in person or even through any legal representative. However, conferment of some privilege or protection (immunity) has been bestowed to a certain group of citizens for rational reasons as envisaged under Article 14 and the same is implicit in the concept of equality. These exceptions are permitted to the President, Governor of the State.
The committee neither provided the complainant with a fair opportunity of being heard nor provided her with the right of being represented by any lawyer.
Nemo judex in causa sua is a Latin dictum which means – no one should be a judge in his own case. It is a principle of natural justice which is translated as no person can judge a case in which s/he is either the party. Thus, they say that “Not only must Justice be done; it must also be seen to be done”.
Audi alteram partem is a fundamental principle considered as the basic and natural rule to be followed in the delivery of the criminal justice system. This is a Latin phrase meaning ‘let the other side be heard’. However, the committee neither provided the complainant with a fair opportunity of being heard nor provided her with the right of being represented by any lawyer.
To expect a fair inquiry by the Committee, it was important that the procedure was strictly followed in accordance with the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013. Thus there should have been involvement of a third party in the committee which would have acted independently unlike the in-house committee whose three members were and are a fellow member/colleague of the accused at the Bench. The complainant was also denied a provision of a copy of her statements made to the committee during the first two sittings, which is a violation of the provisions of Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013.
Although the in-house committee exonerated the CJI by awarding him a clean chit on 6th May 2019 (The Hindu, 2019), the committee under Section 14 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013 had the power to punish the complainant woman for making a false or malicious complaint and for submitting false evidence. Which they didn’t do notwithstanding it been an allegation of such a serious nature and that too on the foremost authority of the apex court.
In this case, there was silence with regards to the consequential conviction as per the judgement. This again proves that there is a severe gap in the investigation. In addition, why didn’t the judges fear that such malicious allegations, if not dealt with seriously, can also be made in the future by somebody else and by not conducting any strict action against the complainant they are, in fact, providing another chance for an alleged false case?
This is not the first time that a Supreme Court Judge has been accused of sexual offence.
On 7 May 2019, the complainant wrote a letter to the committee seeking a copy of the inquiry report. According to section 13(1) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013, it is mandatory to provide a copy to the complainant and that they get it within a period of 10 days from the date of completion of the inquiry. This was not given to the complainant despite the accused CJI being provided with a copy of the report (The Wire, 2019).
The inquiry report of such committees is not covered under the ambit of the Right to Information Act, 2005 and thus cannot be made public or provided to the press in order to safeguard the identity and personal details of the aggrieved woman. However, as a statutory right, it has to be provided to the aggrieved woman.
This is not the first time that a Supreme Court Judge has been accused of sexual offence. Earlier, Judges A.K Ganguly and Swatanter Kumar had also been accused on similar charges (India Today, 2019). But it is been observed that since the #MeToo movement has erupted, India has seen an uproar of such incidents coming into the light and been duly reported. It is now our turn to support and act in an unbiased manner and not be judgmental towards anyone, but also to ensure that the due process of law is followed.
(2019, May 1). Free Press Journal
(2019, May 7). The Logical Indian
(2019, May 9). The Wire
(2019, May 8). The Hindu
Also Read: A Response To Former CJI Dipak Misra And His Take On Marital Rape
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