Underlining “institutional bias” in the manner the Supreme Court initially dealt with a former woman employee’s allegations of sexual harassment against Chief Justice of India Ranjan Gogoi, Justice Madan B Lokur, who retired from the apex court last December, has said it is “my belief that the staffer has not been fairly treated”.
He was one of four Supreme Court judges, including Justice Gogoi, who had addressed the press in January 2018 to question the conduct of then CJI Dipak Misra, especially in the allocation of cases.
Writing in The Indian Express, Justice Lokur has said the complainant must be given a copy of the report of the Internal Committee that went into her allegations “so that she gets answers to the questions that she and others have raised”.
He has questioned the Supreme Court’s decision not to hand the complainant a copy of the report by citing an earlier ruling. “The Secretary-General declined to give a copy of the report to the staffer by referring to a judgement in the case of Indira Jaising v. Supreme Court of India. That decision is not at all relevant. Firstly, the Internal Committee was not an in-house enquiry of the kind understood by the judges of the Supreme Court in 1999-2000 when the in-house procedure was adopted. Secondly, the decision was rendered in the context of a formal in-house enquiry and not in the context of informal in-house proceedings or Internal Committee proceedings.
Moreover, the judgment of the Supreme Court does not say that the complainant is disentitled from getting a copy of the report of the so-called in-house Committee.” “The procedure for conducting an in-house enquiry merely says that a copy of the report shall be furnished to the judge concerned. There is no prohibition in giving a copy of the report to the complainant — neither the in-house procedure refers to any prohibition nor does the judgement of the Supreme Court refer to any such prohibition. Besides, under what law can the report be denied to the complainant?”
“A similar question came up in a case before the Supreme Court and the government claimed privilege under the Indian Evidence Act to deny a copy of the report to the complainant. The defence was rejected since a report on an allegation of sexual harassment does not (and cannot) concern the affairs of State. Accordingly, a direction was given to the government to hand over a copy of the report along with all other material to the complainant,” he said.
Calling for transparency, Justice Lokur has sought to know the fate of the report after its submission. “…has the report of the Internal Committee been accepted by the concerned judge? Is there an order to this effect? Can the concerned judge disagree with the report of the informal so-called in-house Committee? In my view, the in-house procedure (assuming it applies) postulates a decision by the concerned judge to either accept the report or reject it or decide to take no substantive and follow up action on it. Either way, the concerned judge must apply his mind and take a decision on the report. It appears that no such decision has been taken and if it has been taken, it has not been made public.”
He said “the trappings of institutional bias are clearly made out whichever way one looks at the events of 20th April, 2019” when the CJI “nominated himself as the Presiding Judge” to take up the matter.
Justice Lokur said: “Please note, the Internal Committee was set up by a person charged of unwanted physical contact with a lady staffer and that person chose the judge to enquire into the allegation. Equally significantly, the mandate given to the Internal Committee was limited to the allegation of unwanted physical contact, itself difficult to prove. The mandate did not include the allegation of victimisation.
Why was the mandate limited? If there was to be an inquiry by an Internal Committee, then it should have been in respect of both the allegations, particularly since the affidavit of the staffer does contain verifiable documentary evidence with could lead (if proved) to a conclusion of victimisation.”