The CJI and a question of conduct

It would doubtless delight the hearts of a Gilbert and Sullivan Comic Opera audience but will hardly inspire public confidence in the fairness and impartiality of departmental trials and certainly not in the mind of the respondent. So observed the great Justice Vivian Bose in a case of 1957 where a District Superintendent of Police conducting a departmental enquiry against a head constable had at two stages stepped off the “bench” and given evidence as a witness before passing an order of dismissal. The order was quashed on the grounds that the procedure adopted, where the DSP had acted both as a judge and a witness, was contrary to the rules of “natural justice and fair-play.” Today, we find the Chief Justice of the Supreme Court of India similarly not instilling confidence in the judicial process. Facing a charge of sexual misconduct, the CJI can convene a bench of three male justices, including himself, invite the Attorney General to speak on his behalf, admonish the press for sensationalising the event, accuse politicians of fabricating the episode, not have anyone represent the victim or even hear her side of the story, pass an order exonerating himself without signing it and resume judicial duties as if nothing happened.

It indicates that there is a lot you can do if you have the establishment at your command. If you do not, then you probably would be like the two youngsters, almost teenagers, in Yavatmal, not far from Nagpur, who whistled at a young lady and said “Hi sexy, hello sexy” but without any physical contact. They were each sentenced to six months imprisonment. Deservedly so or not, it calls to question some of the sexual harassment laws that so lend themselves to misuse by the police. Sometimes, even a mere allegation by an estranged lover can activate a charge and have a man arrested. Don’t get me wrong. Sexual harassment is brutal, heinous, unconscionable, reprehensible and inexcusable and must be weeded out ruthlessly. But the plain fact is that it is also a handle to exploit a situation. That should put us on some guard in the current matter concerning the CJI.

However, we also know that by all accounts, the complaint against the CJI was detailed, graphic and corroborated, in as much as that according to the complainant when she spurned the Chief’s manoeuvres, there was retaliation by him in dismissing her and some stringent reprisals against her family. Those facts, if proved, certainly lend credence of sorts to her version of the incident. Why then are these facts, which are easily ascertainable, not probed into before a hasty court hearing is ordered overnight, in which the CJI and two brother Justices give him a clean chit.

The incalculable harm that a suo moto, ad hoc court hearing such as this does, is that it will lay a precedent that could come to haunt a Supreme Court of the future. This same Chief was part of an unprecedented press conference of four senior Justices which was held to expose the arbitrary ways of the then CJI Deepak Mishra in fixing the roster of the Court. The purport of that conference was intended to preserve the integrity of the apex judicial institution. And despite this avowed claim, the radical move of going public with the internal affairs of the court, came in for severe flak, precisely because it was unprecedented and deviated from well-established norms of sobriety that attend a judicial office. In the present episode, the CJI does exactly the converse of what he along with the others aimed to set right in the press briefing. Just try and imagine what the contours of the precedent set by the Chief are in actuality. What if in the not-too-distant future, a Justice other than the Chief is in a similar situation. He would be entitled to conjure up an impromptu court to declare himself innocent by the Rule of Precedence. These are precisely the bizarre consequences that the precedent created by the CJI can throw up.

However, this sexual harassment episode, even if true, pales into insignificance when compared with the assault on the Supreme Court, the only surviving symbol of democracy in India. Every move that these three Justices have made to avoid a proper investigation into the harassment complaint is destructive of time-honoured principles of natural justice and fair play. First, being a judge in one’s own cause; then deciding a case without hearing the aggrieved side; then misusing the Constitutional machinery by requisitioning the services of the Attorney General to bail the Chief out, then issuing a warning to the press in anticipation of adverse publicity; not including a lady Justice on the bench in such a sensitive matter, and finally not even making a pretence of an investigation before declaring the complaint a lie.

My dear friend and senior counsel Navroze Seervai has encouraged me to do this piece and has suggested this most apposite quote by Sir Winston Churchill: “A thousand years scarce serve to form a State; an hour may lay it in the dust”. What is happening now hurts the image of a glorious 69-year Temple of Justice. It’s anybody’s guess how its reputation will be restored, but the legal fraternity cannot allow this incident to pass without demanding a thorough probe into the sexual harassment accusations. If false, the complainant must pay the price, but if found to have some basis, then the CJI and his two brother judges must pave the way for three new appointments to the Supreme Court.

(The author is a senior advocate and has espoused causes of public interest. He heads the Mumbai law firm Oasis Counsel & Advisory). (Views are personal)