Within 16 months, the institution of the Supreme Court has been thrown in a turmoil with its head, the Chief Justice, getting involved in a major controversy with no precedent or rules to resolve the situation.
Deeply involved with the election campaign, the government prefers a hands-off approach leaving the institution to deal with the situation which has the potential to snowball into a major crisis for the judiciary.
While the response of CJI Ranjan Gogoi — the only institutional action so far — became public on Saturday, the judicial order by two other judges Justices Arun Mishra and Sanjeev Khanna did not betray much about the future course.
The spotlight has thus shifted to the 26 judges, excluding the CJI, who were all sent a copy of the affidavit and the complaint by the aggrieved woman employee on Friday morning. Their response, as members of the Supreme Court, is bound to define the path which will guide the institution in dealing with the crisis.
Said a former CJI on the condition of anonymity: “There were some judicial proceedings in the Supreme Court today and an order was passed but it was not a judicial order. The CJI also spoke. There were some observations made in the Supreme Court today. Let’s wait and watch and see how the wisdom of the court works.”
That wisdom will be under watch.
As the apex court was on a break this week, many judges were out of Delhi when the controversy broke Saturday. Those contacted by The Sunday Express were tight-lipped, evidently uncomfortable with the sudden turn of events and still calibrating their response. A better sense of their mood will be available Monday morning when all the judges assemble for coffee in the Supreme Court.
Observers say today’s events also have to be seen in the context of the unprecedented press conference last January when four members of the collegium, including Justice Gogoi, went public against then CJI Deepak Misra. Then, too, it was stated to be a fight for the independence of the judiciary. It was seen as an attempt by the institution to correct itself even though many jurists disagreed with the idea.
Some of the issues raised then, as one of the four judges, Justice Kurian Joseph noted after retirement, were resolved because of their public posture while others were being looked into by the current CJI.
The current crisis has been caused by an external trigger: an unprecedented complaint of sexual harassment by a former woman employee of the Supreme Court against CJI Gogoi and the institutional response so far, echoing the line about independence of the judiciary, has not filled many with confidence. The urgency with which the matter was taken up on the judicial side, hurriedly heard by a bench which included the CJI himself but no woman judges, where the CJI held forth against the complainant without including his name in the judicial order has raised legal eyebrows.
Whatever the merit of the complaint, observers said, what is clear is that the court will have to do more. The bench talked of a “bigger force” arrayed against the court so it becomes all the more significant for the air to clear. The current crisis will unfold against the backdrop of the Congress’s bid to impeach former CJI Dipak Misra and the manner in which the executive-judiciary relationship has played out so far.
To supplement the actions already taken on the judicial side by the CJI, the apex court could also respond to the institutional crisis through a full court being convened on the administrative side. The grey area of the rules of the in-house procedure, which has no provisions for dealing with a complaint of this nature against the CJI, can be best tackled at such a forum.
More importantly, any response involving all the judges of the Supreme Court is bound to find greater acceptability among jurists and the wider public. It would also shift the spotlight away from the CJI and underline that the institution itself will work out its response.
Alternatively, four members of the Collegium Justices SA Bobde, NV Ramanna, Arun Mishra and RF Nariman could approach the CJI. Any process that they suggest will have to exclude the CJI and also not be ad hoc in nature. It would still involve consultation with other brother judges of the apex court for the response to be institutional — and going beyond the individual.
A proposal mooted by the four judges last January was to have to future CJIs have a stake in deciding the roster instead of the CJI alone, an idea which found favour with CJI Gogoi in deciding the bench on certain important cases. An informal group of future CJIs could thus deal with the matter but that would still need to have the confidence of all judges, as the matter extends beyond the CJI to the whole institution. While the CJI maybe in the harsh glare, the spotlight is now on the Supreme Court.