"You Don't Know The Level Of Anger Among Women Members Of The Bar,They Don't Feel Safe": Jaising Tells SC [Courtroom Exchange]
The three Judge Bench which is hearing the matter relating to the conspiracy theory advanced by Advocate Utsav Bains has resumed the hearing at 3pm.
"Do you have your mobile?", asked Justice Arun Mishra as the bench perused another sealed cover handed over by Utsav Bains.
"This is the private mobile. Others I have at my place", replied Bains.
Seeking permission to file another affidavit, the advocate advanced, "Two of the conspirators have met and it is confirmed in a way. I was just waiting for this confirmation"
As Attorney General K. K. Venugopal said that it is appropriate he file an affidavit in confirmation of all that he has said, Senior Counsel Indira Jaising sought to make a submission on her own behalf-
"We are not privy to the contents of what he gave...('When the appropriate time comes, we will share. Right now, we will not share it with anybody', observed the bench)...
We, women lawyers, ('I have other women with me', she added) are concerned with the independence of the judiciary and the integrity of this court. We want to participate in any inquiry to any extent that we are allowed as we have a common goal. In my 50 years at the bar, I have always tried to keep in mind the independence of the judiciary. We have a stake in maintaining this independence, whether against manipulation by corporate houses or sexual harassment at workplace. There is a need for a free and impartial Inquiry into the allegations of the former employee!"
As she began to canvass the hearing convened urgently on Saturday, Justice Rohinton Nariman weighed in,
"We are not hearing what has happened on Saturday. We are only on his (Bains's) affidavit and to see what we can do. We are Not even on the allegations. Don't back us into it"
"Then we would like to address that issue before an appropriate bench. On Saturday, only her (the former Supreme Court official who leveled allegations of sexual harassment against the CJI) affidavit was there, not his. So we assumed that this bench would deal with that affidavit. The Issues must not to be mixed...", continued Ms. Jaising.
"We can't even give you that opportunity. It is not for us to give you anything. We were only constituted for something", noted Justice Nariman.
"In so many words, we are going to say that this inquiry is not in super-session of that (the inquiry into the employee's allegations) and will not prejudice that", assured Justice Mishra.
"I am not asking for an enlargement but Your Lordships are shrinking it...The two inquiries must not prejudice each other. If it is said that she is being manipulated by corporate houses, it would preempt that inquiry", urged Ms. Jaising.
Repeating that the three-judge bench is only concerned with the veracity of Bains's affidavit, Justice Mishra reflected passionately,
"He says one Ajay came to meet him. He doesn't know who Ajay is, but he says he is offered bribe of Rs. 1.5 crores by Ajay to frame the CJI...he says that some disgruntled employees- Manav Sharma, who was removed by the CJI, along with other employees have ganged up. There is also a certain registry person. That committee (the in-house committee to inquire into the sexual harassment allegations) is not competent to look into this.
('We don't know under what provision of law that inquiry is. Let's leave that issue aside', said Ms. Jaising)...
He (Bains) says there is a fixing game. It is a matter of concern for the whole institution, the fixing part alone! Fixing has no role to play in the system! We have to go to the roots of the matter! How can there be an allegation of fixing?! Who are these fixers? They have to be booked! They have no role to play in the country! We will inquire and inquire and inquire and take it to a logical conclusion... You (Ms. Jaising) are the champion of causes. You have the right to defend but not like this. You have to be independent and find out the truth at the clerical level. An advocate is saying that there are talks of fixing judges?! Should we close our eyes to it? The Country will lose faith in the institution!"
"We will not tolerate this! If the affidavit is false, we will not tolerate that either! But an officer of the court has filed it. There is his affidavit and then there is the affidavit of the employee", continued the judge.
"I am not comparing! And she is not my client and those are not my allegations! There are rumours around the country that Ms. Jaising is representing her without instructions. I am only here as a senior member of the bar. Please say so on the record", asserted Ms. Jaising.
When she stated that she too is an officer of the court, the bench remarked, "Yes, you are. You also file (an affidavit)"
Turning to the AG, Justice Mishra wanted to know if Bains could claim privilege under section 123 of the Evidence Act in respect of some communications-
"Please tell us Whether any privilege can be claimed. My perception is that he can't...He is saying he cannot disclose some communications. In case such conspiracy or fraud or collusion is there, can such privilege be claimed?"
"If there has been a crime, he has to tell. 123 will also not apply because he is a private person", opined the AG.
"I don't understand how one can give an affidavit, produce half the evidence and say that rest is confidential? And if you want his cellphone, [unclear]", continued Mr. Venugopal.
"When evidence Comes to my notice, it is my duty to present it to Your Lordships", added Solicitor General Tushar Mehta.
"You are duty bound to disclose it. We are not compelling it right now. We will hear you. But the truth should come out", said Justice Mishra to Bains.
"There are three dismissed employees. Never in history has any CJ ever taken such actions...We are not saying that the affidavit is false...it is possible...but a proper inquiry needs to be carried out", noted the bench.
"You don't know the level of anger among the women members of the bar! They say we don't feel safe!", Ms. Jaising put forth.
"Now you are showing your anger", quipped Justice Mishra.
"Not anger, but anguish. Because things are going wrong...", replied Ms. Jaising.
"Let us see if we can right it. We have to see everything. Not just one side", said the bench.
Next, Bains iterated, "I was asked to put on affidavit the kind of work I have done. I have done the Murthal gangrape case...('Don't address me. Address the court', said Ms. Jaising)...". However, Justice Mishra stated that the bench is not interested in his credentials.
In respect of Bains's outburst against the AG earlier in the day, Justice Mishra advised that he must show respect.
"I have respect, I am only clarifying his allegation...If he makes personal comments, if anyone attacks my character or my integrity, I have the right to defend!", replied Bains.
"The AG never attacks anyone! He is the greatest gentleman in this court and we have all learned from him!...You have no right whatsoever to doubt him (the AG)! If you have an iota of doubt, we will throw you out immediately! He is the most respected member of the bar!", reprimanded Justice Nariman.
"Since Justice Nariman said he will throw me out, I will walk out myself", responded Bains.
"You are a young man. You are doing important work. Don't take anything to your heart. Don't act on emotion. He didn't mean actually throwing out. He only wanted you to control your anger", said Justice Mishra indulgently, even as Justice Nariman remarked that Bains could leave.
"He should make a declaration that he is in no way connected to any affected party!", ventured Ms. Jaising.
"I am not connected to the CJI, despite there being rumours to that effect!", Bains asserted.
"And he came to court in a car without a sticker! You can speak to the security personnel if they got instructions from the registry! Ask him to admit it or deny it! We are not allowed to come inside the court in a car without a sticker! And he came in a white Jaguar taxi?! We can't come in a taxi to the court!", argued Ms. Jaising vehemently.
"You don't know the contents (of the evidence in the sealed covers Bains filed). There are so many things, we are not saying. We can disclose it to you but not in court. It is Not necessary right now", observed Justice Mishra.
"We have to tread very warily. We are concerned with this institution which is above all of us", concurred Justice Nariman.
"We have to ensure a good, clean judiciary for our children, for the posterity!", pleaded Ms. Jaising.
"What else are we doing?", asked the bench rhetorically.
"We are here to help you. Please don't shut us out", persisted the Senior Advocate.
"Have we shut you out?", questioned the bench. "No", replied Ms. Jaising.
"Is it possible for us to shut you out?", the bench further asked in good humour.
"I am just another lawyer...", replied Ms. Jaising.
"No. You are a formidable lawyer", observed the bench in a lighter vein.