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‘This episode is going to haunt SC in years to come’: Justice AP Shah on CJI sexual harassment case

Former Delhi High Court Chief Justice A P Shah on the alleged sexual harassment case against CJI Gogoi, and the in-house panel's clean chit.

Written by Kaunain Sheriff M , Seema Chishti | New Delhi |
Updated: May 7, 2019 7:23:20 am
‘This episode is going to haunt SC in years to come’: Justice AP Shah on CJI sexual harassment case Former Delhi High Court Chief Justice A P Shah

On a day the in-house inquiry committee found “no substance” in allegations of sexual harassment against Chief Justice of India Ranjan Gogoi and gave him a clean chit, former Chief Justice of Delhi High Court, Justice A P Shah, discusses the turn of events that have unfolded in Supreme Court in an interview with Kaunain Sheriff M & Seema Chishti. Excerpts:

The in-house inquiry committee gave a clean chit to CJI Ranjan Gogoi in connection with the alleged sexual harassment complaint filed by a former employee of the Supreme Court. What was your reaction when you first heard of the alleged sexual harassment case

I have read the 29-page affidavit completely, on the sexual harassment and victimization of the former employee of the Supreme Court. As a judge, I don’t accept anything on face value. But I thought the affidavit was quite detailed, and perhaps needs to be probed. I was particularly struck by the fact of her dismissal after the alleged event, which appeared to be on flimsy grounds – i.e., leave of absence for half-a-day, and making a fuss about the change in her seating position, etc.

I thought that the court would have a standard operating procedure or in-house mechanism, for dealing with such complaints, laid down in the past from other cases that the judiciary has faced. Of course, because this complaint has been made against the Chief Justice of India (CJI), any probe or investigation should have been done with great care and sensitivity.

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The CJI called an extraordinary hearing to say that there was a conspiracy against him. What does this mean, given that at the press conference by four most senior SC judges in January 2018 he had cautioned the country against attempts to undermine independence of the judiciary?

The SC described the situation as a “matter of great public importance touching upon the independence of judiciary, as mentioned by the Solicitor General”. During the hurriedly called extraordinary hearing called on a Saturday after the complaint was formally received by the court, the CJI himself alleged that this woman had a criminal background, and that this was a conspiracy to destabilise him. Another judge said that the allegations were wild and baseless, and a law officer said that this was blackmail.

READ | ‘Disappointed’, says complainant as SC panel finds ‘no substance’ in sexual harassment allegations against CJI

The final order passed on that first day was signed only by two out of three judges sitting at the hearing. It was all very disturbing for me to read these comments and these goings-on. To say the least, the whole series of events was completely astonishing.

Even assuming that the woman was completely wrong, she still has a constitutional right of due process. How could the CJI become a judge in his own cause? Our judges seem to have completely forgotten the words of Justice Verma, who said, “Be you may ever so high, you are not above law.” You can’t be sitting in judgment in your own case. How can there be any possible redress to this woman in these circumstances

Every imaginable aspect of rule of law and natural justice was violated. I believe this was an extremely low point in the history of the Indian judiciary.

Do the Vishaka guidelines apply to the whole of Supreme Court?

Vishaka brought about a monumental change in India, and was a turning point in our country’s history. Vishaka cannot be brushed aside. It is the basis of the POSH law of 2015. At the time of the Vishaka judgment, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) had been signed but not as yet been implemented in India. Nevertheless, the Supreme Court held that the principles of CEDAW must apply in India. Hence, the Vishaka came about.

It is one of the most respected judgments in the global judicial community. It sets down a process and guidelines for dealing with instances of sexual harassment at workplaces. If you see all the judgments that followed, much jurisprudence has developed on the subject. Vishaka fundamentally demands a fair and just inquiry into the allegations. That is the least that the Supreme Court and the judiciary should have assured the public here too.

The current situation and the reaction of the judges was a complete denial of the Vishaka judgment, and made the sanctimonious presumption that women have the propensity to lie.

How should the process have been followed in the present case?

Unfortunately, the committee has passed a decision ex parte in the absence of the complainant. But looking back, the day following the extraordinary hearing seemed to be a positive development. The full court of the Supreme Court assembled and decided that Justice Bobde would head an in-house committee to look into the allegations, and that some kind of just and fair procedure would be followed.

In fact, in an earlier judgment, the Supreme Court itself recognised that “the Investigative Process under In-House Procedure must take into account the Rights of the Complainant, the judge concerned by adopting a fair procedure and safeguards, the integrity of the Institution”.

I agree that though there is no straitjacket formula, surely an inquiry in such cases should be compliant with the fundamental principles of natural justice. An in-house committee process was also followed in Madhya Pradesh, and in several other cases, involving judges or judges of the court. No judge can or should be immune from this.

READ | Told son not to file case (against CJI complainant), unwise to fight the powerful: Haryana woman

Given the importance of the constitutional authority, isn’t there a danger that such complaints can be weaponised and manipulated? Is the bar higher when the target is the head of a constitutional authority?

It is true that such a complaint can be weaponised and manipulated. But I remain sceptical about the various conspiracy theories that are floating around. But that remains a matter to be decided still. Nevertheless, the solution is not to dismiss the allegations outright, as has been done in the present case.

There is also a disturbing report in a leading newspaper that some male judges have decided not to allow female employees to work at their residence at all. This follows from the presumption that women always lie. If this is a genuine reaction of judges, then I am actually appalled. Such cases are actually a test for the institution — how do you deal with such situations? The world over, allegations have been made over high-ranking authorities. It is not the first time that an institution has faced a challenge like this.

What is your view on the final decision of the in-house committee issued earlier today?

I am extremely disturbed by how this inquiry has been held. Initially it seemed as though the Supreme Court was looking to remedy the situation brought about by the extraordinary hearing. Ideally the probe should have been conducted by an external committee, but to compensate, the court added two women judges into the committee. But even so, in no sense can this be called an inquiry. And what followed did not help much either.

All that the woman asked for was to be represented by a lawyer or a friend. This was a very basic, and in my view, a reasonable request, coming from someone pitted against three powerful judges of a powerful institution. But this basic minimum right was denied to the woman. What Justice (D Y) Chandrachud now appears to have said in his letter is absolutely correct, when he wrote that the woman should be allowed to be represented by a lawyer or an amicus curiae. I also agree that there ought to have been an external inquiry. There is no other way to ensure that the judiciary can be viewed as an impartial body.

Certain other facts about this so called inquiry are also problematic. The woman was told that her own testimony, once she made it, would not be given to her because the inquiry is confidential. She also asked for procedural guidelines before the committee began its inquiry, but even that was not supplied. It is all very Kafka-esque in so many ways, and reminds one of the trial in his book of the same name.

Now, I believe as per the law laid down in Indira Jaising’s case, the report of this inquiry’s will not be available to the public, nor can anyone challenge this in-house inquiry. So, all this has ended in a complete mockery of justice.

The Supreme Court is too important an institution to let things go like this. No other institution carries so much trust of the people. This is the only institution that has saved democracy, and given life to the Constitution. I believe, like ADM Jabalpur, this episode is going to haunt the Supreme Court in the years to come.

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