Judiciary comprises of judges, advocates and ancillary staff. All of them play important unique roles. The institution is run by advocates and handled by the judges. Staff supports them. Sitting judges are the strongest pillars of the judiciary. People of this country have immense trust on judiciary due to the failure of successive governments. This trust has to be maintained at any cost. Judges, being special members of the judiciary, therefore, must not only be honest but should also be perceived as honest. It is therefore very important to protect them from false allegations as well as to deal with them at an equal footing with other citizens if charges are found correct.
In the past, there have been allegations against sitting Chief Justices but no one has been accused of sexual harassment till recently. Extremely unfortunate and unprecedented incidents happened in the past few days. For the first time, serious allegations of sexual harassment have been leveled against the sitting Chief Justice of India (CJI) Justice Ranjan Gogoi. A lawyer wrote a post on social media (facebook) that he was offered a hefty sum to help in falsely implicating the CJI by someone and many people including disgruntled judges and politicians were involved. Two mutually exclusive proceedings have been instituted. One, an in-house committee headed by Justice Bobde, Justice Indira Banerjee and Justice Indu Malhotra. Second, in a suo motu writ petition, Justice A.K.Patnaik (Retd) has been assigned the task to probe the contents of the affidavit filed by the lawyer leveling a conspiracy theory of attempt to falsely implicating the CJI. The two proceedings, one administrative and other judicial are running parallel to each other and are said to be mutually exclusive. But on the face of it, the two committees are essentially probing a similar issue and there is a potential danger of reaching contradictory results which will lead to another crisis, if so happens.
Three very relevant issues arise – One, what is the law dealing with allegations against sitting judges (High Court judges, Chief Justices of High Courts and Supreme Court judges). Second, is there a law dealing with allegations against the Chief Justice of India or does CJI constitute a separate class. And third, if not, how should the gap be filled.
Status of CJI
Before we venture in, we must bear in mind that the Chief Justice of India is the senior most judge of the country and of the Supreme Court. Unlike High Courts, where the Chief Justices are of the respective High Courts and not of the States, i.e. Justice XYZ is the Chief Justice of the High Court of Gujarat and not the Chief Justice of the State of Gujarat; the CJI is the Chief Justice of India and not the Chief Justice of the Supreme Court of India. Clearly, the founding fathers and mothers wanted to give a special status to the post of CJI and that is why a different nomenclature. The CJI holds administrative control of the Supreme Court and has a variety of powers including allocation of work to other judges. But one must remember when allegations of sexual harassment are made against an individual, those being offence against the human body, those are not against an institution. Allegations of offences against human body, even if made against the CJI do not attack or threaten the independence of the judiciary. CJI, afterall, is a member of judiciary and not judiciary in himself.
Key provisions and documents
To look into this issue, and to see how judges hold a special position under law, one needs to examine few provisions and documents – Section 77 of the Indian Penal Code 1860, The Judges (Inquiry) Act, 1968, The Judges (Inquiry) Rules, 1969, The Judges Protection Act, 1985, Veeraswami judgment ((1991) 3 SCC 655), Vishakha Case ((1997) 6 SCC 241), X v High Court of M.P ((2015) 4 SCC 91), Prevention of Sexual Harassment at workplace Act, 2013 (POSH), Gender Sensitization & Sexual Harassment of women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013, Gender Sensitization and Sexual Harassment of Women at Supreme Court (Prevention, Prohibition and Redressal) Guidelines, 2015 and the Report of the Committee on In-House Procedure by the Supreme Court (dated 1999 but notified on the website in November 2015 after a judicial order).
Three things are clear. Firstly, there is a detailed procedure to deal with judges of High Courts, Chief Justices of High Court and Judges of the Supreme Court. Secondly, the CJI is a judge of the Supreme Court and takes no separate oath but he enjoys a special status under various laws as he is the administrative head and huge powers vest in the post including handling complaints against other judges. And thirdly, there is no dedicated law to deal with allegations of sexual harassment against the CJI.
The way forward
Neither the In-House Procedure nor the 2013 Regulations expressly apply to case where sexual harassment is alleged against the CJI. This calls for either an amendment in the In House Procedure or a dedicated separate procedure to deal with such a case. The amendment, if brought in, shall keep in mind principles for departmental inquiries into sexual harassment. In my view, the Full Court should exercise this power and lay down composition of the committee empowered to enquire into the issue. This committee shall have adequate representation and in any case not less than 50% members as women. I have reservations in inserting external members as it may lead to attempts of sponsored complaints to topple the institution of CJI. It has to be internal but should exclude judges in whose elevation, the CJI participated as a member of the collegium as far as possible. If a separate procedure is to be laid down, it should be done in consonance with powers under the Supreme Court Rules, 2013 and Article 145 of the Constitution.
Another alternate way to deal with such allegations is to use the outcome from Veeraswamy's judgment. In Veeraswamy's case, a Constitution Bench of the Court held that if the CJI himself is the person against whom the allegations of criminal misconduct are received the government shall consult any other Judge or Judges of the Supreme Court. To deal with an allegation against the CJI, a dedicated mix of sittign and retired judges including retired chief justices of impeccable integrity may be prescribed. There may be an apprehension that prescribing a procedure prior to any such allegation may lead to frivolous attempts on CJI by virtue of his post with a view to influence the members of the committee based on political inclinations. To answer this apprehension, the members of the selection committee to select the probe committee which may include sitting judges (but not in whose elevation, the CJI participated as collegiate assessor), retired Chief Justices, members of the bar and members of investigative agencies, if required, may be prescribed. Interference of the Executive however should be strictly barred. The entire episode deserves a deeper attention. I hope, this episode is never repeated, but if it is, we must be better equipped to deal with it.
Namit Saxena is a Lawyer practicing in Supreme Court of India.
Views are personal.