The supreme test case

Chief Justice Ranjan Gogoi’s response, in seeing the sexual harassment allegation against him as an attack on the judiciary, would obviously have been coloured by the manner in which the complaint has been made and spread to the public. The process adopted by the complainant has indeed been strange. She wrote to 26 judges and simultaneously to four news websites, as though seeking advance publicity which can only be with a view to destroying someone's reputation as an end in itself. As Finance Minister Arun Jaitley said in a blog post on Sunday, this raises questions about motive and therefore a larger undisclosed purpose. A direct complaint in the appropriate manner might well have evoked a completely different response from Justice Gogoi, who enjoys a completely clean reputation. 

But it will surely be a test case of the procedural guidelines that the Supreme Court set out in a path-breaking case in 1997, which became law in 2013. The Vishakha Guidelines, as they were initially called, named after the non-government organisation that fought the case on the victim’s behalf, defined sexual harassment for the first time and mandated complaints committees in organisations with more than 10 employees. The apex court set up its own Vishakha committee in 2013 — that is, after Parliament parlayed the guidelines into law. But it has not been invoked in this case. Justice Gogoi’s courageous participation in the unprecedented group protest against then Chief Justice Dipak Misra’s procedural transgressions in January last year established his reputation for being a stickler for due process and the rule of law. Yet, he didn’t apply these rules to himself. Instead of activating an investigation via the sexual harassment complaints committee mechanism, which would have been the proper thing to do, he chose the unusual route to defend himself. On being informed of the accusations by the solicitor general, Justice Gogoi called a special Bench hearing, which was attended by Justice Sanjeev Khanna and Justice Arun Mishra. The hearing, he said, was on a “matter of great public importance touching upon the independence of the judiciary”. Then he spoke for half an hour to protest his innocence, which included information about the modest size of his bank balance and observations about the victim’s reputation.

Several obvious questions arise about this course of action, one of them being why the complainant was not permitted a hearing at the special Bench. This question assumes importance because of a gap in the law that requires the chief justice’s permission for the complaints committee to accept a complaint. There is no procedure for a complaint against the chief justice. In the absence of a hearing from the alleged victim, the court issued a statement, signed only by Justice Mishra and Justice Khanna, calling on the media to act responsibly and decide whether to publish “wild and scandalous” allegations. An independent investigation would have been a better course of action.

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