Supremacy of justice

The full court of the Supreme Court has made amends to a great extent. It did well to appoint a committee of three judges headed by Justice SA Bobde, the most senior judge after the Chief Justice of India, and comprising Justices NV Ramana and Indira Banerjee to probe the allegations of sexual harassment against CJI Ranjan Gogoi levelled by a dismissed female employee of the same court. Justice Ramana has since recused himself from the panel and is replaced by Justice Indu Malhotra.

The credibility of the Supreme Court came under a bit of a cloud after Justice Gogoi, the accused, himself headed the bench to hear the matter, violating the principle of natural justice (that nobody can be a judge in one’s own cause), only to recuse later, after attacking the character of the complainant and terming the allegation as an ‘attack on the independence of the judiciary’.

It is difficult to understand how the allegation against an individual judge can amount to an onslaught on the judiciary. Has Justice Gogoi forgotten that on January 12 , 2018 four senior most judges of the Supreme Court after the CJI, including him, created history by blowing the whistle on then CJI Dipak Misra? The four judges held a news conference and alleged that cases with far-reaching consequences had been assigned by the CJI selectively to the benches of his preference without any rational basis.

In this light, it is ironical that Justice Gogoi formed the bench himself to hear his case. By launching a blistering attack on the complainant in her absence, he seemingly went against the Indian Evidence Act. Under Section 53A of the Act, in the case of sexual assault or attempt to commit any such offence, submissions on the character of the victim are not relevant. The new section was added in the Act after the SC’s controversial decision in Tukaram v. State of Maharashtra (1979), popularly known as the Mathura rape case.

The SC itself ruled in many cases that the antecedents of the victim are not material in cases of sexual assault. Further, the statement issued by the secretary general of the Supreme Court that the allegations were motivated was another blow to the concept of fair trial. The Secretary general is not a personal assistant to the CJI. How could he issue a statement without any investigation?

Similar allegations have been levelled against judges in the past. In 2013-14, allegations of sexual harassment levelled against two former judges of the apex court — namely Justices AK Ganguly and Swatanter Kumar — shook the entire judiciary. In both cases, the charges were levelled by female law interns who worked with them. A committee of three judges of the Supreme Court comprising Justices RM Lodha, HL Dattu and Ranjana Prakash Desai, after investigation, found the allegations against Justice Ganguly to be valid.

In C Ravichandran Iyer versus Justice AM Bhattacharjee (1995), a two-judge bench of the Supreme Court ruled that an in-house procedure would provide some forum to examine the allegations made against a High Court or a SC judge. Doubts were expressed even then about its effectiveness as it would depend solely on the CJI as to how he reacts. And secondly, it does not provide any solution if the CJI himself is accused of misconduct. These doubts seem to have come true.

Judges do need protection from frivolous complaints, but complaints also need to be investigated impartially.

The writer is a senior TV journalist and author

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