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2019-04-23

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Indian Polity
www.thehindu.com

In the midst of the political turmoil of a testing election season, a former junior court assistant at the Supreme Court sent copies of a sworn affidavit to 22 judges of the Supreme Court alleging sexual harassment by the Chief Justice of India and intimidation of her family members. The nature of the allegations is serious, and for a lesser citizen, it would prima facie have set the ball rolling on investigations, inquiries and appropriate actions by duly appointed committees. The fact that this is the correct course of action need not in this case detract from the cardinal principle of criminal law on the burden of proof — innocent until proven guilty.

The immediate response of the Secretary General of the Supreme Court to the affidavit goes along predictable lines: “The allegations... are completely and absolutely false and scurrilous and are totally denied... The motive... is obviously mischievous... It would be extremely relevant to mention that the concerned individual and her family have criminal antecedents... It is not only mischievous but a complete afterthoght (sic) of her to make these false allegations at this time... In fact there were complaints made against her... to the Secretary General on account of her inappropriate behaviour... Apart from the misconduct formally recorded, there were other counts of misconduct on her part... Its (sic) is also very possible that there are mischievous forces behind all this, with an intention to malign the institution.”

In her affidavit, the complainant spoke of specific incidents, harassment of a specific nature, and against a specific person. Nothing in her sworn affidavit can on the face of it be construed as a general derogatory statement of the Supreme Court as an institution, nor as the general behaviour of judges of the Supreme Court. If there is an allegation against a specific person who occupies a high office, it is not an assault on the office. Construing it as such would pave the way to arbitrariness and impunity, and would undermine the Constitution that binds the court in irredeemable ways. On the other hand, it is possible that a thorough, impartial and fair investigation that is mindful of the asymmetries of power between the complainant and the respondent might find the complaint without basis. Instead, we find the first response on behalf of the respondent taking easy resort to “criminal antecedents” of the complainant and her family, as if that by itself negates the possibility of her being subjected to sexual intimidation. To derail the mere possibility of fair procedure is unacceptable by any standards.

The order passed shows the case as a ‘Suo Motu Writ Petition (Civil) No. 1’ and lists the Advocate General and the Solicitor General as Parties. The result of the special hearing was a gag-like order on the media signed by two judges, Justices Arun Mishra and Sanjiv Khanna: “Having considered the matter, we refrain from passing any judicial order at this moment leaving it to the wisdom of the media to show restraint, act responsibly as is expected from them and accordingly decide what should or should not be published as wild and scandalous allegations undermine and irreparably damage reputation and negate independence of judiciary. We would therefore at this juncture leave it to the media to take off such material which is undesirable.” The CJI was not one of the signatories, although he was present and spoke at the hearing.

It is important to understand that although this issue has sent a shudder all around and gasps of disbelief and shock, the manner in which the complaint has been received and handled by sections of the Bench and sections of the Bar has been disconcerting to many in the legal profession. The Bar Council of India’s statement speaks eloquently of its own standard: “The cock and bull story has been cooked up to plot some big conspiracy against the institution. Bar is fully standing with our CJI and the Judges of Supreme Court.” The fact is that the Bar Council of India does not speak for all lawyers in the country, as the response of the Women in Criminal Law Association (WCLA) makes evident. The WCLA published a detailed statement demanding a free and fair investigation by a panel that excluded the three judges who constituted the Bench in the first sitting and demanded that the CJI not hold office till the inquiry is completed. The Supreme Court Advocates on Record Association and the Executive Committee of the Supreme Court Bar Association passed resolutions on April 22 disapproving the manner in which the complaint was dealt with and asserting the urgency of an independent impartial inquiry. These resolutions must be viewed in the light of conspiracy theories alluded to by the Bar Council of India and Finance Minister Arun Jaitley’s statement that this was the work of “institution destabilisers” who represent “Left or ultra Left views”. This attempt to impute a conspiracy jeopardises the security of the complainant, her family and anyone who provides support in securing redress.

The court is unlike other institutional settings — the Supreme Court is sequestered and the constitutional office of the Chief Justice of India is deemed sacred and inviolable. The argument is that an independent judiciary is indispensable to check arbitrariness on the part of the legislature and government. What is often forgotten is that an independent judiciary also importantly acts as a check on itself, and must apply the principles of natural justice and fair procedure to itself with greater rigour than it would to the parties that appear before the court. The expectation of citizens is that the court will lead by example, not by arbitrary diktat. The expectation also is that constitutional morality will guide the court, especially the Justices of the court, at all times; the constitutional presumption is that the court is not above the Constitution.

This very court, in the judgment on the right to privacy, observed unequivocally that judges have in the past erred in judgment, in an understanding of their powers and in their understanding of the Constitution and the rule of law. Can we forget Justice Rohinton Nariman’s emotionally charged recall of the “three great dissents”? Can we forget Justice D.Y. Chandrachud’s statement, “When histories of nations are written and critiqued, there are judicial decisions at the forefront of liberty. Yet others have to be consigned to the archives, reflective of what was, but should never have been…”? And it is the thin line of judicial dissents that has moved centre stage in our understanding of India’s constitutional history today. Given the recent resurrection of dissents by the Supreme Court, it is important not to foreclose the possibility of judicial dissent by generalising the actions of the three justices to all the judges of the court. For, after all, to borrow in part from Justice Chandrachud, judicial dissent is the safety valve of constitutionalism. And dissent must be seen to be done. The time is now.

Kalpana Kannabiran is Professor and Director, Council for Social Development, Hyderabad

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