Why lack of Rules to regulate the conduct of Judges is the actual threat to judiciary

Why Lack Of Rules To Regulate The Conduct Of Judges Is The Actual Threat To Judiciary

Author: Ms. Teresa Dhar, CNLU, Patna

Very recently, the Chief Justice of India, Rajan Gogoi was accused of sexual harassment on a former Supreme Court employee. This allegation is very significant in its nature for several reasons – primarily because the allegations have been made against one of the highest judicial authority in India and also because it comes at a time when there is a prominent widespread awareness about sexual misconduct at workplace or anywhere else for that matter – courtesy, the #MeToo movement.

The present scenario has seen the judiciary kept in a disparate state where ambiguity and self-preservation have taken the front seat and an erroneous indication is made – some people might, after all, be above law. With the recent allegations that have been leveled on the CJI Ranjan Gogoi, clearly, we have failed to learn from history. In 2013, when former J. A.K Ganguly was indicted by the SC committee for the alleged sexual misconduct on a legal intern a special committee was inducted. J. A.K Ganguly was held guilty of the crime but because the complainant refused to file an FIR, the Judge was acquitted of all charges. History has a way of repeating itself. Very recently, another former Supreme Court employee came out alleging the CJI of sexual misconduct. The woman had, in an affidavit, mentioned how inappropriately the CJI had touched her even in his chambers during work hours and after she refused his advance, through his sources got her husband and brother removed from their government services and got criminal cases filed against them. 

The proceedings that were held thereafter were even more interesting. The CJI along with the other two sitting judges of the SC sat as a bench to hear the case. It resulted in the CJI vehemently denying the charges and called it as attempts to “destabilize the office of the Chief Justice of India.”  He, in turn, alleged that it was the “independence of the judiciary that was under threat” and raised questions about the woman’s antecedents and the criminal cases registered against her. An order rubbishing the claims of the woman was passed but not signed by the sitting CJI though he was part of the bench. However, again a three-judge committee (this time, the CJI was not a sitting judge) was constituted to hear the case but on the third day, the woman complainant withdrew her complain. Her grievances were:

• She had not been allowed to have her lawyer/s or support person present despite her hearing impediment, nervousness, and fear.
• There were no audio or video recording of the proceedings of the Committee 
• Several documents including her statements were not being properly circulated and she wasn’t being given a copy of the documents.
• There was no specific procedure being followed by the committee.
• She strongly felt that she wouldn’t be able to get justice at this rate and hence, the withdrawal.

Now, whatever be the merit of the allegation, certain things need to be addressed. Mainly, how problematic is the method of hearing that is being conducted. The SC gave a “clean chit” merely because they didn’t find any “substance” in her claim. Not only are the committees are dubious because these are in-house panels and not an external panel as requested by the claimant. The problem with the in-house 3 member panel is that all the judges are juniors in the CJI’s court. Even if it is an in-house panel, there should have been an organized manner of conducting. Rather, there was no specific procedure to be followed, the Vishaka guidelines were not being followed, basic rights like letting a lawyer represent the claimant – all these were denied. The entire opaque process has called for criticism from the legal and non-legal fraternity- bare acts of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 were being sent in bulk to the SC judges in tandem to the campaign dubbed as “May it please Your Lordships”. Here, we see the CJI behaving in an atrocious manner – being the “Master of the Roster”, he has behaved as a Master – in a hasty, one-sided inquiry that not only managed to dismiss any kind of taint on him but also managed to do away the credibility of the woman complainant. 

Clearly, the SC hasn’t heard of the maxim which goes as Nemo judex in causa sua i.e., no one can be a judge in his own case (literally). The CJI conveniently seems to have disposed of a case even before it could start by judging his own cause and have framed a story about it being a “conspiracy to shake his seat as the CJI of the Apex Court.” However, several other sitting judges begged to differ – will former Justice, Madan Lokur has accused the CJI of being guilty of “institutional bias” in his editorial “One-sided Justice” and J. Chelameswar asserts that the “due process of law” hasn’t been followed. On the other hand, J. Chandrachud and J. Nariman had met the 3 member panel and urged all that ex-parte hearing without the complainant would obliterate the credibility of the Supreme Court and that, the woman complainant should be allowed to be represented by her lawyer. Instead of appreciating the move, sympathizers of CJI made a press release asking the media to show some restraint, making it evident that they firmly believed in the CJI’s conspiracy theory.

At this point, it is difficult to conclude whether the lack of rules to regulate the behavior of Supreme Court judges in their workplace is harrowing than this particular incident. Perhaps the inadequacy of the non-existence of such laws in the first place might have led us to this day. However, what the SC does not realize that this one episode has shrunk the faith people had in the judiciary. It is not simply about dismissing a woman’s petition merely because it had no merits – rather, the entire proceedings till date sets a bad precedent and accentuate the message to all the women who had faced any sexual harassment and were looking forward to some repose from the Apex court, that if there was an authority higher than you who is being accused of the said crimes, then you may not get justice after all. That there are certain people above the law, you might be discredited without a fair chance at hearing if the Court arbitrarily feels that your claims have “no merit.” This is exactly what I fear might be the ultimate implication of this entire incident which is indeed dangerous for all the stakeholders here.