21 May 2019 3:39 AM GMT
After a few protests and arrests, the woman complainant (of sexual harassment against Chief Justice of India) has been forgotten by judges, lawyers and media. Staring substantial injustice is that there is no avenue for the victim to go. Action (so-called) on complainant ended in 15 days without any hope of review, appeal or further action. Ubi jus ibiremedium is an age-old legal maxim...
After a few protests and arrests, the woman complainant (of sexual harassment against Chief Justice of India) has been forgotten by judges, lawyers and media. Staring substantial injustice is that there is no avenue for the victim to go. Action (so-called) on complainant ended in 15 days without any hope of review, appeal or further action. Ubi jus ibiremedium is an age-old legal maxim meaning where there is right there shall be a remedy. If the complainant, has a right to live and work, where is the remedy for breach of it?
Subnormal process of Abnormal inquiry
While most powerful 'power centres' supported the clean chit to CJI declaring no substance in allegation of sexual harassment, some individuals, rights groups and senior advocates questioned the series of breaches of principles of natural justice and law. Reportedly, entire Judiciary except Justice Dhananjay Chandrachud did not find any serious defect in the procedures. It is reported that Attorney General K K Venugopal wrote to all judges strongly recommending external members, retired woman judges of Supreme Court to conduct inquiry into the allegation, which was not liked by the Government resulting in another letter from AG that it was not the stand of the Government but his personal opinion. Now it is clear that all big powers are behind the 'clean chit' like Supreme Court, Government of India, Bar Council as against one single, helpless individual - a junior court staff, harassed, hounded, and dismissed with a few individual lawyers, rights groups and some right-thinking-members of the society behind her. In the power play of Indian Powerful Legal league, Constitution was declared 'run out' without examining the third empire.
If any person has a daughter or sister working as junior staff anywhere, he should worry about their safety. If something like this happens, where should they complain or fight up to apex court. A few points on questions of law and facts.
On the question of delay: Justice Nariman with Justice Ranjan Gogoi said in Assam SanmilitaMahasangha v. Union of India , "Given the contentions raised specifically with regard to pleas under Articles 21 and 29, of a whole class of people, namely, the tribal and non-tribal citizens of Assam and given the fact that agitations on this score are ongoing, we do not feel that petitions of this kind can be dismissed at the threshold on the ground of delay/laches. Indeed, if we were to do so, we would be guilty of shirking our constitutional duty to protect the lives of our own citizens and their culture. In fact, the time has come to have a relook at the doctrine of laches altogether when it comes to violations of Articles 21 and 29".
Right to assistance: in Nandlal Bajaj vs State of Punjab , the SC held that "the history of personal liberty is largely the history of procedural safeguards" and held: "Fundamental Right in Article 21 carries with it the inherent right to legal assistance".In Port of Bombay Vs Dilip Kumar Nadkarni , the Supreme Court justified representation by a lawyer declaring, "Now examine the approach of the Chairman. While he directed two of his law officers to conduct the enquiry as prosecutor, he simultaneously proceeds to deny such legal representation to the delinquent employee, when he declined the permission to the 1st respondent to appear through a legal practitioner. Does this disclose a fair attitude or fair play in action? Can one imagine how the scales were weighted and thereby tilted in favour of the prosecuting officer..."
Judges of same court should not inquire: Supreme Court explained In house procedure in Addl. District & Sessions Judge 'X' v. High Court of M.P case : Justice J.S. Khehar and Justice Arun Mishra in MP judge case stated: "….The exclusion of judges of the same court from the investigative process, was also well thought out. In certain situations, it may be true, as pointed out by the learned counsel for the petitioner, that judges of the same court being colleagues of the judge concerned, would endeavour to exculpate him from his predicament. It is not as if the position could not be otherwise. Animosity amongst colleagues is not unknown. Reasons of competitiveness, jealousy and the like are known amongst colleague judges, especially from the same High Court..."
Fairness not ensured: In MP Judge case, the SC advised "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…. It is therefore imperative that the procedure adopted for the investigative process is absolutely fair for all concerned. The procedure should be such as would ensure, that it would be shorn of favouritism, prejudice or bias. Presence of any one of the above would vitiate the entire investigative process.
Influence of judges over witnesses:In MP Judges case it was explained: "Recording of statements of individuals, who are subservient to Respondent 3 Justice A, irrespective of whether the statements are recorded on behalf of the complainant or the judge concerned, would most definitely render the investigative process unsustainable in law. The influence of the judge concerned, over the witnesses to be produced, either by the complainant or by the judge concerned himself, will have to be removed. It will be for the complainant to raise a grievance of the nature referred to above.….. And whenever necessary, remedial steps will be taken".
Divest accused judge of influential authority: Another measure suggested by SC in MP Judge case was that, "to make the process 'fair and just', it is imperative to divest the judge concerned (against whom allegations have been levelled), of his administrative and supervisory authority and control over witnesses". Complaint was against CJI and he was in full control over everything.
All these apprehended conditions were prevailing in this case. No remedial steps were taken to assure complainant. Conditions were so threatening that she was compelled to walk out.
Questions of fact:
Her affidavit discloses two facets, one- allegation of sexual harassment, two- victimization of the complainant and her family 'at the hands of the Chief Justice of India' after the alleged incident on October 11, 2018. Mr Advocate read the following to know how she was harassed.
a) She was transferred to the Centre for Research and Planning on October 22,
b) Her position was changed to "Admin, Material Section" on November 16,
c) A memorandum on November 19 by Deepak Jain, Registrar, was issued accusing the victim of violating conduct rules and seeking an explanation,
d) Her third transfer was to the Library Division on November 22,
e) Another memorandum was issued on November 26 rejecting her explanation and proposing further action
f) She was suspended on November 27
g) On December 18 from the Registrar a communication reached her that the charges against her stood proved.
h) On December 21, she was dismissed from service.
i) On November 27, her husband, a head constable with the Delhi Police, Crime Branch Division, was transferred to the Third Battalion.
j) On December 8, her husband, and the latter's brother, also a constable with the Delhi Police, were suspended over telephone, and the orders followed the next day.
k) On January 2, 2019, an inquiry was initiated by a Deputy Commissioner of Police against her husband on the ground that "unsolicited calls were made to the Office of the Hon'ble Chief Justice amounting to official misconduct".
l) On January 11, the victim and her husband were summoned to Delhi's Tilak Marg police station by Station House Officer (SHO) Naresh Solanki. In their presence, the SHO called the Registrar, Mr. Jain, to discuss ways to reach the residence of CJI Ranjan Gogoi. The SHO, the victim and the husband went there, and in the presence of Mr. Jain, the victim was forced to fall at the feet of the CJI's wife. ..Upon their return to the police station, the SHO had a long conversation with the victim and her husband.
m) On January 14, the disabled brother-in-law of the victim, who had been appointed temporary Junior Court Attendant under the orders of the CJI himself on October 9, 2018, was removed from service.
n) On March 3, an FIR was registered on a complaint by a person named Naveen Kumar at the Tilak Marg police station in respect of an alleged demand made by the victim in June 2017 for a bribe of ₹10 lakh for getting him a job in the Supreme Court and his payment of ₹50,000 as advance.
o) Based on this FIR, the victim and her husband were arrested from their village in Rajasthan, hand-cuffed and subjected to cruel and inhuman treatment. The victim was remanded for a day on March 10. She was released on bail on March 12.
Supreme Court must answer, whether above two facets were inquired, and whether established procedure, including the following:
a) The accused constituting bench and heading it to decide complaint against him, declaring his innocence, suspecting 'conspiracy' behind it, and then asking other colleagues to decide.
b) Not giving prior intimation of procedure to be adopted in inquiry.
c) Deliberately uncertain about the character of inquiry. Is it judicial inquiry, Complaints Committee or just a three-judge-panel to conciliate with complainant?
d) Not allowing her support of lawyer or friend.
e) Not giving the copy of report to complainant or anybody.
f) Proceeding further without complainant being there before the Committee.
g) Recoding of the deposition of accused in the absence of complainant.
h) Making it impossible to review the judicial inquiry report.
i) Not examining witnesses, respondent and complainant in open, nor knowing what they deposed before the Committee.
j) Not inquiring into persecution of complainant like transfer orders of complainant, and disciplinary inquiry against her, role of apex court administration in dismissing her.
k) Not inquiring into the role of Delhi police in arresting her on a complaint of alleged bribery and initiating disciplinary action against here husband and his brother, both working in police.
l) Not examining the police personnel, i.e., relatives of complainant. (not known whether they were examined or not)
m) Not following the in house procedure devised in 1999 envisaging a committee of three judges to deal with allegations against serving Judges of Supreme Court, not following the principles laid down by Supreme Court in MP Judge case.
n) Not following the special enactment PoSH Act 2013 or their own regulation made under this Act.
o) Completion of inquiry in complete haste.
Senior Advocate Dushyant Dave, rightly said: "In the absence of any known procedure, the non-observance of the principles of natural justice and the absence of effective representation of the victim, the report, even though not for the public, is non-est and void ab initio.
But where is that she can file appeal on the above grounds? The SC has to answer why doors of justice were totally closed for her? Martin Luther King Jr said: Injustice anywhere is threat to justice everywhere. Imagine the gravity of that threat, if injustice is established in Supreme Court itself!"
(Author was the Former Central Information Commissioner and Professor at Bennett University)
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