Last week, the Supreme Court took the first institutional step to deal with the crisis that has overtaken it after one of its ex-employees levelled charges of sexual harassment against the Chief Justice of India. It appointed a three-member panel to probe the charges. The constitution of the committee signalled a deference to due procedure and raised hopes of a fair hearing. The critical test would, of course, lie in the manner of the committee’s functioning. At the very least, the panel needed to assure the complainant of an impartial inquiry. But with the complainant walking out of the investigation expressing fears that “she is not likely to get justice from the committee,” the probe raises more questions than answers.
The crux of the complainant’s statement pertains to the asymmetry of power equations in a case where a former court junior assistant is ranged against the CJI. She has alleged that the panel did not adopt “a procedure that would ensure fairness and equality in the highly unequal circumstances”. She has accused the committee of not informing her about its procedure, denying her a lawyer, not recording its proceedings and not providing her with a copy of her depositions before it. She has also held that the panel “orally instructed” her against disclosing the proceedings to the media and her lawyer as well. The jury is out on these allegations. Moreover, the fact the SC’s rules for “in-house procedure” to deal with complaints have no explicit provisions for an inquiry into allegations levelled against the CJI does make the committee’s task complicated. But it’s also well-known that in a number of judgments the apex court has affirmed the rights of working women under Articles 14, 15, 19 and 21 of the Constitution. Surely jurisprudence for equal, fair and level playing fields for women cannot be impervious to a situation — however rare — which involves the highest functionary of the SC. A fair resolution of the charges against the CJI demanded that the committee invoke the spirit of the SC’s past verdicts to institutionalise procedures for such a purpose. If the complainant’s allegations are anything to go by, the committee seems to have fallen short of this.
The latest development in the case also invites other questions. How does the panel deal with the three-day testimony of the complainant? It surely can’t pass an ex-parte order. Besides the fact that such orders are against the principle of natural justice, the SC itself has noted such orders are temporary and can be set aside under the Code of Civil Procedure. How can it ensure fairness when it insists on “informality”? Much will depend on how the full court, which sanctioned the three-member panel in the first place, reacts to the complainant’s exit.