A complaint of sexual harassment against the sitting Chief Justice of India was sent (along with an affidavit and other supporting evidence) to the other sitting judges of the Supreme Court of India asking for the constitution of an inquiry committee of senior retired judges to investigate and adjudicate these serious allegations.
The legal institutional response to such a complaint as mandated under the "In-House Procedure" applicable to Judges of the Supreme Court and the High Court, along with the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal Act) Act, ("POSH Act") read with the Supreme Court Sexual Harassment Regulations, 2013, is for the designated inquiry committee to take cognizance of the complaint, constitute an inquiry committee and give notice to the respondent as to the initiation of such proceedings.
Today, in an unprecedented move beyond the scope of any known procedure or principle of law - whether under the "In House Procedure" or in the POSH Act or the Supreme Court Sexual Harassment Regulations - a notice was issued on the Supreme Court website that a 'Special Bench' was being constituted to hold court at 10:30 am on the mentioning by the Solicitor General, even as the court has been on vacation since Wednesday and is scheduled to reopen only on Monday. The notice states that the purpose of the hearing is "to deal with a matter of great public importance touching upon the independence of the judiciary."
The Bench comprised three judges of the Supreme Court including the respondent himself:
1.Why was the respondent himself sitting in judgment over his own case? That no man shall be a judge in his own cause is one of the most sacrosanct principles of natural justice that the court routinely preaches and enforces in the hundreds of cases it adjudicates every day. The Chief Justice as master of the roster has the sole authority to constitute the Bench. Did he not think it fit to exclude himself from its composition.
2. Why were no women justices on this Special Bench? Justice Indu Malhotra is the Chairperson of the Internal Complaints Committee of the Supreme Court and was not included in this Special Bench. None of the other women justices of the Supreme Court were included either. Given that the POSH Act is crystal clear that the committee inquiring into sexual harassment must be headed by a woman and must comprise of a majority of women, why was this principle not followed when constituting a Special Bench to respond to the complaint?
3. What was the purpose of this hearing? If the Special Bench was not assembling to deal with the complaint (and hence not following the "In House Procedure"/POSH Act/ Sexual Harassment Regulations) then what was the purpose of convening a Special Bench of the Court? Given that the inquiry is meant to take place behind closed doors while following a prescribed procedure, could these allegations ever be adjudicated in open court?
4. Can this matter be taken up on the judicial side? There is a special "In-House Procedure" governing inquiry into allegations against sitting Judges of the Supreme Court and the High Court. While the said In-House Procedure does not envisage a mechanism to be adopted in the event a complaint is received against the Chief Justice of India themselves, it is pertinent to highlight the procedure laid out otherwise. Upon receiving a complaint against a Judge of the Supreme Court, the CJI shall examine it first, and if it is of a serious nature involving misconduct or impropriety, they shall ask for a response from the concerned Judge. Upon receiving his response, if the CJI is of the opinion that the matter needs a deeper probe, he would constitute a Committee consisting of three Judges of the Supreme Court, which shall then conduct an inquiry into the said Complaint. As such, because the "In House Procedure" prescribes no mechanism for complaints against the CJI, it is clear that a person aggrieved by the acts of the CJI, as well as the inquiry that will follow, will be guided by the procedure as laid down for other Judges in the "In House Procedure", which mandates the constitution of a Committee. The Supreme Court Sexual Harassment Regulations, 2013 also has a specific procedure to be followed in the event of a complaint and do not envisage any open court hearing on the judicial side as a procedure for responding to a complaint.
At this hearing, as reported on Twitter by legal news websites, the respondent claimed that the complaint is a part of a plot to attack the independence of the judiciary. The complainant was stated to have criminal antecedents and the allegations were stated to be not worthy of any response. Several serious questions arise:
The serious question of judicial independence was raised both as the alleged purpose for conveying a hearing by a Special Bench as well as at the hearing itself with no less than the respondent himself stating this the complaint is only a plot to attack the credibility and independence of the judiciary.
However, the idea behind an In-House Procedure, adopted by a Full Court Meeting (all the Judges) of the Supreme Court on 15.12.1999, was to safeguard the independence of the judiciary since the complaint would be examined by the peers of the respondent Judge; and also "preserve the faith of the people in the independence and impartiality of the judicial process" since it would demonstrate that there exists a machinery for the examination of complaints against a Judge, and that members of the higher judiciary are also accountable for their conduct.
Therefore, convening a Special Bench in order to allege an attack on the independence of the judiciary, instead of following due process and adopting the In-House Procedure is not only ironic, but also raises important questions about fair procedure:
At the end of the hearing, the Special Bench passed an order observing as follows:
"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 the independence of the judiciary. We would therefore at this juncture leave it to the media to take off such material which is undesirable."
This raises further questions:
This leaves us with a final question:
What justice for aggrieved persons? If in the face of the complaint, a person can expect to be publicly vilified, deemed to be "wild and scandalous" even before any enquiry, and has to face the entire collective might of the Judiciary as an institution, the officers of the Government of India and the Bar Council of India, how do we ever claim to offer constitutional justice to women who experience sexual harassment?
The Women in Criminal Law Association (WCLA) is a collaborative group for women in criminal litigation that aims to share knowledge, build skills, and create inclusive professional networks.
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