The Chief Justice of India (CJI) Ranjan Gogoi has instituted a special bench this morning, at 10:30am in Court Number 1, headed by himself alongside justices Arun Mishra and Sanjeev Khanna, to vociferously refute sexual harassment allegations made against him by a complainant in a letter sent to all Supreme Court judges.
The Leaflet, the Caravan Scroll and The Wire have carried the letter, and a full summary of the allegations made by a former Supreme Court employee.
The charges as outlined in the letter against the CJI and police appear pretty serious, so the Leaflet, Scroll, The Wire and Caravan reached out to the Supreme Court’s secretary general (SG). The SG responded, denying the allegation on behalf of the Chief and basically attacking the complainant’s integrity and cryptically imputing the complaint to “mischevious (sic) forces behind all this, with an intention to malign the institution” (the Leaflet has published a full copy of the letter in its article).
The CJI this morning also used the pulpit of the bench to defend himself, as live tweeted by several court reporters, including noting that he was “extremely hurt” by the “unbelievable” allegations against him after 20 years of selfless service, after which his peon had more assets and money than him.
According to LiveLaw, Gogoi also noted: “All I would like to say is this, undoubtedly every employees are treated fairly and decently. This employee was there for a month and half. Allegations came and I didn’t deem it appropriate to reply to the allegations.”
CNNNews18’s legal editor Utkarsh Anand tweeted: “#CJI clarifies that charges against him will be examined by other senior judges & not [b]y himself. Court also doesn’t pass any judicial order & leave it to the wisdom of the media to decide on publication.”
The order, passed by justices Mishra and Khanna stated:
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of the media to show restraint, act responsibly as is expected from them and accordingly decide what should or should not be published as wild and scandalous allegations undermine and irreparably damage reputation and negate independence of judiciary.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.
But irrespective of whether the allegations have any truth to them or how hurtful they may have been, constituting a special court in the first place (even if it did not pass any orders) is a terrible idea and visual.
Supreme Court judges have happily held press conferences before, which could have been a forum for the CJI to defend himself. Or, preferably, if he felt that way inclined, he could have put out a statement in his own name, denying the allegations.
But at the very least, the CJI should have agreed to follow procedures that had been instituted by the same court.
What was that committee’s name again?
The Supreme Court Gender Sensitization and internal Complaints Committee (GSICC) was set up in November 2013 the wake of two sexual harassment complaints against formerly sitting judges.
Sure, the complainant may not have approached the committee (yet) herself, but this is clearly within its domain, rather than the CJI vowing to set up an investigation by senior judges into their own boss.
This is perhaps indicative of the neglect the GSICC has seen since it has been set up.
Finding the Supreme Court Gender Sensitization and internal Complaints Committee website via the Supreme Court’s, means scrolling to the bottom of the page to the footers and picking out its cryptic GSICC acronym from a long list bureaucratic SC functions.
Once clicking through, you will also note, that the GSICC has not published its annual report (at least on its own website) since 2014, when it had shared that only two complaints had been received, and were pending disposal.
One had resulted in the ban of an advocate from SC premises, for six months by April 2014.
Since then, radio silence, besides publishing a list of GSICC volunteers in 2017 and 2015, and releasing some guidelines in 2015.
If that’s the way the Supreme Court implements its own Vishaka judgment and guidelines, which have since been converted into statute, what hope is there for an ad hoc committee of judges reporting to the CJI to look into this complaint in a way that will make it apparent that justice has been done?
Deja vu?
It’s also worth remembering the 2013 complaint against then former Justice AK Ganguly, in which an internal committee of judges gave a hearing to Ganguly and the complainant and ultimately passed an order finding that prima facie sexual harassment had been made out. Ganguly resigned as chair of the West Bengal Human Rights Commission (WBHRC), a short time before parliament began a presidential reference procedure to remove him.
The second sexual harassment complaint, made against National Green Tribunal (NGT) chairman Swatanter Kumar, was stalled when Kumar hit out with clever legal notices and a defamation case, which has been languishing between courts in transfer petitions.
A grand total of 19 non-hearings and adjournments have happened to decide on that transfer petition in the Delhi high court since 15 May 2014 (see screenshot below).
The latest order in the transfer petition, of 18 February 2019, echoing the 18 others, simply stated:
Reference to order dated 29.01.2018 it is urged by learned counsel for the plaintiff that the transfer petition is still pending in the Supreme Court.At request, adjourned to 14.5.2019.Interim order to continue till then.
In all this time, the Me Too movement may have surged and public consciousness of sexual harassment has expanded, and the Supreme Court has survived moves to create a judicial appointments commission.
Meanwhile, the way the courts deal with sexual harassment has quietly returned to the state-of-affairs pre-2013.
Comments
Chief reportedly said: "This employee was there for a month and half. Allegations came and I didn’t deem it appropriate to reply to the allegations".
The sensible thing to have done would have been for Gogoi himself (or another judge, if they had heard of the allegation) to have referred the allegations to the GSICC or some other independent body at that point (or even today) to clear Gogoi's name, rather than ignoring it himself or constituting a special bench (over which he was presiding, leaving it to the other two judges to pass an order).
That's the way it should have happened in any other workplace, anyway. The way this has gone just makes it look as though the CJI is throwing his weight around to intimidate media and the accuser.
That being said, Gogoi should perhaps be commended somewhat for at least not opening his bench by initiating suo motu contempt or defamation charges against Leaflet, Scroll, Wire and Caravan...
What makes you suspect in the first place he is capable of doing these things? Unless you know something which we don’t know, you are just poisoning the well, and you are doing it well.
After perusing our archives and mostly ignoring HCs (see list below), there are plenty of examples of the SC issuing suo motu contempt to media houses, and some of Gogoi himself wielding contempt powers quite freely (even if arguably justifiably), but I couldn't immediately find a precedent of the exact factual matrix of this situation (though that's perhaps also in part because this situation is unprecedented and it's perhaps also the first time that 4 media organisations have been brave enough to report on something so controversial at the same time).
So yes, you're technically right - the SC is perhaps a bit more sensible in this respect than the HCs. But I'm pretty sure that the editors of the 4 media outlets were nevertheless worried about what Gogoi was going to say yesterday.
And it's not like non-Gogoi's non-order here didn't make it abundantly clear that the bench had contempt on their mind as an option (on that day or in future): "We would therefore at this juncture leave it to the media to take off such material which is undesirable."
SC'ish contempt examples:
I don't know if Katju qualifies as media, but Gogoi himself was responsible for the contempt (and apology) by Katju: https://www.legallyindia.com/supreme-court/katju-who-s-actually-quite-good-at-sorry-proffers-sc-strategically-sensible-contempt-avoidance-apology-20161209-8156
Gogoi went to town against an advocate in 2016 (commendably not with contempt but with a complaint against BCs): https://www.legallyindia.com/supreme-court/cji-says-will-look-into-case-of-justice-gogoi-s-ire-over-lawyer-s-holiday-snaps-recusal-request-20160304-7293
The SC + Subrata Roy long incarceration without trial episode proves that the SC is not necessarily always completely reasonable in its contempt use.
Here the SC issued contempt to media organisations for an erroneous report: https://www.legallyindia.com/supreme-court/3-newspapers-face-sc-for-contempt-over-wrong-afspa-report-as-livelaw-avoids-action-with-deft-apology-20160115-7110
In the Mid-Day case, the Delhi HC judges suo motu jumped to the defense of the CJI over a perceived slight, with contempt (though the SC ultimately bailed them out): https://www.thehindu.com/todays-paper/tp-opinion/Contempt-of-court-and-the-truth/article14865592.ece
In 2013, SC judge GS Misra threatened (but did not pursue) contempt over TOI's 'timeliness' report: https://www.legallyindia.com/the-bench-and-the-bar/sc-justice-gs-misra-slams-lsquo-contemptuous-rsquo-toi-report-on-judge-un-punctuality-20130619-3764
2012: front-page apologies after 'mis-reporting' on the surprise of 2 SC judges, and suo motu contempt by SC: https://www.legallyindia.com/the-bench-and-the-bar/express-a-pioneer-to-carry-front-page-apologies-to-sc-for-court-reporting-20121107-3236
While one can agree fully that it would have been sensible had the CJI not been present for the hearing on Saturday and referred the matter to the ICC, there is certainly more to the issue than what is being played up. Some questions that come to the mind are:
(a) why did the complainant have to send the complaint/affidavit to all the SC judges? Why couldn't it have been sent to Justice Indu Melhotra or one or two of the other judges rather than all?
(b) why was the press involved at the first instance? The press then decided to give the CJI 24 hours to respond. Wouldn't the sensible thing have been for the press to have informed the SC and asked it to investigate the complaint and given it time till the IC took cognizance (say in 3-4 days), failing which they would have published?
(c) the 4 media houses tend to be quite disruptive, almost anti-govt in a biased way and the choice of going to them also raises some queries.
(d) the timing is odd. Why didn't the issue come up earlier if the criminal complaint against her was filed in early March and she was first arrested on 11 March? Her husband and brother in law were suspended in Dec 2018 or when she'd, apparently, apologised to the wife of the CJI around then. It is clear that the complainant is well guided, has good support and has certainly created an evidence trail of some sort (fainting before the hearing, etc. and justification for lack of WhatsApp messages, etc.).
(e) It is quite clear that the drafting is not done by rookie but an experienced lawyer. If the lawyer wanted to get justice why would s/he be keen to involve the press and sensationalise the matter?
(f) A lawyer, Utsav Bains, has claimed that he had been approached to discredit the CJI. Is he lying?
https://www.outlookindia.com/website/story/india-news-was-offered-bribe-to-frame-cji-ranjan-gogoi-in-sexual-harassment-case-lawyer-for-rape-victim-against-asaram/329106
Sincerely,
Jon
Not having an inquiry, or dismissing the allegations outright, is a dangerous precedent.
Utsav Bains' allegation is seriously worrying and really needs to be looked into.
Nevertheless, without knowing any insider facts about this beyond what's in the public domain, there remain several alternative (thereotical) possibilities:
1. It's a completely malicious and untrue hatchet job concocted by opponents of the CJI, merely to damage him.
2. There is some substance in the complaint and her lawyer recommended that going to the media was the best course of action to keep her safe and ensure justice was done (considering the GSICC barely - if at all - has jurisdiction, and that there are no well-established procedures for this thing).
3. The complaint has substance but it was hijacked by lawyers or elements who wish to harm the CJI as much as possible with this complaint, and went shopping around for lawyers to do the most damage.
4. And, to go to a full conspiracy level false flag operation, the complaint either has or does not have substance, but in order to discredit the complaint, some fixers went around offering bribes to advocates.
The point I'm trying to make is, that yes, the situation is messed up at all ends, but the SC should have dealt with it better, because these kinds of things are likely to keep happening precisely because the SC handles them so badly.
The only thing that could close this chapters is a proper inquiry, surely? Otherwise we're just reduced to conjecture.
I thought you will conclude by saying that Lord Ram orchestrated this to start an early construction of his abode in Ayodhya.
Neverthless, Congress is no saint either. Kat hamara he raha hai.
An allegation on an individual has been spun as an institutional challenge. A vested party presided on the bench hearing the matter (shoving well settled legal principles down the drain), the order conveniently omitted his name, and the bench insisted that the "order" was not in fact a "judicial order". Not to mention the irregular, rushed mentioning on a holiday. It was basically a press conference to vilify the accuser and that's quite a dangerous precedent to set. The Justices and the AG, SG, and the SCBA President – esteemed lawyers who should know the first principles of law – have failed to uphold the integrity of the court. There was no mention of the guidelines for sexual harassment allegations (Justice Arun Mishra was on the bench that directed the guidelines be notified, ironically) and the idea of an independent committee being constituted was never even mentioned.
Surely, more than a few people find the conduct and the procedure adopted objectionable at its core.
https://www.opindia.com/2019/04/chief-justice-of-india-alleges-larger-plot-and-pressure-tactics-after-leftist-websites-break-story-of-alleged-sexual-harassment/
People, please don't be blinded by the media. Think critically.
But let's not forget that Ganguly could have faced the presidential reference in parliament to clear his name and be vindicated, if he was indeed innocent, and he's had several TV interviews and written statements telling his side of the story (which was not convincing, to put it mildly, when stacked against the corroborating evidence of several interns - as the SC committee of judges itself had also confirmed in its prima facie investigation).
Ganguly resigned precisely for that reason - to avoid a proper inquiry. And he probably calculated that not facing the music, would allow precisely that: for people to claim later that he'd been given a clean chit.
https://www.legallyindia.com/analysis/the-rapid-rehabilitation-of-powerful-men-of-rk-pachauri-ak-ganguly-swatanter-kumar-tarun-tejpal-and-the-length-of-memories-20160330-7369
Therefore, in the absence of a proper inquiry on this, it's up to everyone to make up their own mind about how they feel (and there's always defamation if those views are incorrect).
Contrary to what some lawyers may think, you don't need a court order or judgment to have an opinion or belief.
And taking this argument further, Salman Khan may technically be legally innocent of drunk drive killing, but you and anyone else are still entitled to believe that he was driving and that this decision was wrong.
Unless it is a POCSO or dowry death(within 7 years of marriage) EVERYONE is innocent unless proven guilty. And that KIAN is something any judiciary across the world will have to follow.
The way the article has been articulated it seems that you have already presumed that he is guilty. If so then please furnish the evidence ?
I do not understand your statement about using 'Presidential Reference' to clear his name. The allegations against justice Ganguly were made post his retirement. I am not sure about how he could have used this procedure and cleared his name. Maybe you can educate me better on this issue. However, if Justice Ganguly not making an effort to clear his name be construed against him why would the same principles not be applicable to the victim. It has to be remembered that the complainant took no steps towards pursuing the complaint after Justice Ganguly tendered his resignation and refused to attend meetings of the Inquiry Committee. Thus making it seem like the complainant's only objective being directed towards maligning Justice Ganguly and forcing him to resign.
I do not want to engage in a debate about the veracity of the allegations againsat Justice Ganguly. However, it is my opinion that if based on a some allegation a person is immediately shunted based on a non transparent preliminary inquiry it may bring greater perils to our democracy. I repeat that the ruling dispensation directly benefited from such an outcome. It is easy for you to make claims sitting in Delhi. But as citizen of Bengal we are aware of the great loss to the democratic environment and institutional structure of the State Human Rights Commission post his resignation.
We had summarised more information on how a presidential reference against Ganguly could have proceeded (and the challenges available to him in the process), which is worth a read if interested: https://www.legallyindia.com/home/ak-ganguly-presidential-reference-and-fir-explained-20131219-4202
To summarise, the process to remove Ganguly would not have been an easy one or a slamdunk, and Ganguly would have had plenty of chances to defend himself (though yes, it might not have even proceeded to that stage without also some political momentum against him).
Re your other points. 1. Most complaints in SH cases, particularly against powerful men, take a psychological toll and a legal risk (as the Swatanter Kumar defamation case has proved). Most are also keen to move on with their lives, rather than sacrificing years and years of their lives giving further statements, turning up to hearings, being cross-examined or victim-shamed, and so on, as would have certainly been the case if the criminal investigation had proceeded (it's one of the reasons that such a tiny percentage of rape cases ever result in a complaint, let alone a conviction).
I had written about this 'clean chit' and the intern's supposed unwillingness to cooperate in Newslaundry a few years ago, which may answer your questions: https://www.newslaundry.com/2014/07/15/legally-un-noticed
2. Yes, the judicial inquiry wasn't terribly transparent. But that's partly the fault of the SC, for having had no idea back then on how to deal with such cases by instituting an ad hoc committee without any real powers or mandate (and apparently hasn't learned much either).
https://www.mynation.com/india-news/who-does-not-want-cji-ranjan-gogoi-to-hear-these-4-cases--pq94mz
https://www.legallyindia.com/supreme-court/cji-says-will-look-into-case-of-justice-gogoi-s-ire-over-lawyer-s-holiday-snaps-recusal-request-20160304-7293
Staying on allegations of SH and abuse of position/authority, Kian do you know further details on this at RGNUL?
https://barandbench.com/rgnul-misognyny-casteism-ao-sp-singh/
Can you access a copy of the submission made by the RGNUL students? They seem to have made allegations against their VC and some other staffs.
But what makes it worse is that the CJI sat on a bench; conducted a 'hearing'; but was not named in the order !!
Sure Caravan, Wire etc are known to be anti-establishment. Some may impute, that it also depends on the colour of "establishment" and that these media platforms have been relatively soft on certain folks. But the point is not to kill the messenger especially if the message is well substantiated.
As Kian mentioned in his posts, this matter will likely get frustrated through lawfare. I just found something interesting but probably meaningless. A name that is common to three judges who have faced SH charges recently. NUJS students accused Justices Ganguly and Kumar of SH. Ashish Goel, the co-author of letter challenging BCI Chairperson's show of support on behalf of the "entire bar" is also from NUJS. Some coincidence!
It is also rumoured that NUJS' #PIBOut process under its former SJA Prez served as a template for HNLU protests and elsewhere. Disruptions are never welcome. But "sometimes before we can usher in the new, the old must be put to rest." Don't blame NUJS, blame and ban GoT.
https://twitter.com/ashish_nujs
https://www.thehindu.com/opinion/lead/a-miscarriage-of-justice/article27051604.ece