“IN RE: MATTER OF GREAT JUDICIAL IMPORTANCE TOUCHING UPON THE INDEPENDENCE OF JUDICIARY” – QUISCUSTODIETIPSOSCUSTODES

On the morning of 20^th April 2019, Scroll.in broke the story that would shatter the illusion of our nation’s Apex Court as the vanguard for those suffering from the power imbalance which characterises much of Indian society and divide the legal fraternity further. What transpired after the story broke is an event that will go into the annals of Indian legal history as one of those moments where justice gave way to power.

In early 2018, Justice Ranjan Gogoi (as he was then) was one of the four judges who held a Press-Conference, a prodigious act for Judges who are expected to have limited interactions with the public. This event was necessitated, as claimed by its organizers, to highlight the threat the Judiciary faced due to certain elements disregarding foundational principles threatening the institution of Judiciary. On the 20^th of April 2019, Justice Gogoi held an open court hearing, with the atmosphere much akin to a press conference, intending to send the message out to all who cared to listen – and speaking from the chair of the Chief Justice of India, those who would not listen were remiss. This hearing sought to undermine the very principles Justice Gogoi had sought to uphold and raise a revolt for back on the 18^th of January 2018, for in condemning his accuser from the pulpit of the Chief Justice of India, and alongside two other Justices and the Attorney General and Solicitor General, he violated foundational principles of law. This abuse of authority and exercise of power, one of the many instances where power-dynamics have been in play in the current issue, yielded its logical conclusion on the 30^th of April when the woman complainant decided to withdraw from the inquiry panel established by the Supreme Court to look into her complaint.

This act is further exemplified in its distressing nature by the fact that this is an occurrence which transpired in the highest court of the land.When such occurs, the Latin maxim ‘QuisCustodietIpsosCustodes’ makes for an apt remembrance. Who will guard the guards? When it is the most respectable Judges of the land who violate the esteemed principles of law, the last recourse for Justice in the nation, who is to hold them accountable?

Analysis of the Legal Provisions

In gauging the contours of the law applicable to such cases of sexual harassment complaints, first reference should be made to the enacted law which deal with such complaints (1.). Moreover, it is also important to look at principles of natural justice which are to embellish actions of all facets – from the actions of the Administration, to the decisions of the Judiciary. (2.) Lastly, it will be of great disservice to understanding the legal provisions if the social aspects which necessitated drafting them as they were are not understood, and thus it becomes imperative to expound upon the power dynamics vis-à-vis sexual harassment. (3.)

1. The Enacted Law

The law governing how complaints of sexual harassment are to be dealt with is to be found in 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. There exists separately an ‘In-House Procedure’ for dealing with sexual harassment complaints, and an Internal Complaints Committee of the Supreme Court headed by Justice Indu Malhotra.

The POSH Act is clear in its provisions: the inquiry committee for sexual harassment complaints is to be headed by a senior woman employee, and have an external member from an NGO or the like so as to negate the “possibility of any undue pressure or influence from senior levels [of the organisation].”

The Supreme Court Sexual Harassment Regulations sets up the Gender Sensitization and Internal Complaints Committee (GSICC) and upon receiving any complaint, the said GSICC is to formulate a sub-committee consisting of three of its own members or members nominated by it at its meeting, with the majority of them being women, and atleast one external member. It merits mention that all the procedures under these Regulations can only come to effect if a complaint is received by the GSICC, and no such complaint has been received. However, nevertheless it is erroneous on the part of the Judiciary to not keep the provisions in mind while formulating a ‘In House Committee’ for inquiring into the complaint. This Committee consisted at the time of its constitution two male Judges, Justice Bobde and Justice NV Ramana, and only one female Judge, namely Justice Indira Bannerjee. However, what is most stark is that even before the constitution of this committee, Justice Ramana had already labelled the complaint of the complainant as motivated and dismissed the same. Thus, to have a Judge who had already expressed his prejudice in a committee to inquire into the complaint violated natural justice, and it is apropos now to analyse some of the other violations of the same.

2. Principles of Natural Justice and their violations

In law, there are two fundamental pillars of natural justice which are accorded great importance:

1. Nemo in propriacausajudex, essedebet – No one should be made a judge in his own case (the rule against bias);
2. Audi alteram partem – Hear the other party, or the rule that no one should be condemned unheard (the rule of fair hearing).

Both of these pillars stand violated in these hearings. From the moment the CJI expressed his innocence and went on to condemn and character-assassinate the complainant due to pending criminal cases against her, these principles were violated. Moreover, the complainant’s decision to not participate in the inquiry committee on various grounds, the prime of which are to do with refusal of the committee to follow the procedures established by the Apex Court itself are further grounds to allege a lack of any fair hearing proffered to the complainant. The highest court in the land refusing to recognize the rights of the complainant speaks volumes of the prejudice that complainants of sexual harassment face. To quote Karuna Nundy,

“There is a very, very strong tendency to disbelieve the person who is complaining. Not just because of patriarchy, but also because there tends to be a massive power imbalance between the person who is making the allegations and the person who is being accused.”

3. The power dynamics in sexual harassment complaints

The aforementioned lays the foundation for segueing into a very important perspective that needs to be kept in mind when regarding sexual harassment cases – that often there is a disproportionate power structure existing between the complained and the complainant, and it is this power structure that is exploited by the complained, and which the law ought to remedy. An equity needs to be established, not only in society, but also in our mechanisms to deal with instances of sexual harassment so that justice can be done in its truest sense of the term. Gautam Bhatia’s expounding on these power dynamics and also on the present crisis in the Supreme Court makes for an interesting read.

 A Deeper, Systematic Problem

The current dispensation at the Supreme Court and its actions hint at a deeper trouble that has been brewing in the apex judiciary for long. It is indeed true that the recent incidents are of great import with reference to the Judiciary, but perhaps little of it is in reference to its independence. The matter is of import because the Judiciary’s values are at threat by those who are at the helm of it. Those at the position of influence within the institution need to reassess what the true nature of the threat is. Chasing conspiracies that may or may not exist and discrediting complaints as malafide and motivated on that account is the antithesis of what courtrooms are supposed to do. Without following due process and giving adequate hearing, Judges cannot make conclusions. The question that right minded individuals need to ask is this – when it is the Judges who fail to uphold the law, and when there is no process to inquire into allegations against the individual at the helm what is the nature of our Judiciary? QuisCustodietIpsosCustodes?

Mohit Dang

Intern, AGA

12th May 2019

The views, thoughts, and opinions expressed in the text belong solely to the author, in her personal capacity. It does not reflect the opinion of the organization.