a-critical-analysis-of-cji-sexual-harassment-case

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News: In the case of Sexual Harassment case against Chief Justice of India (CJI), Complainant argued that ‘she has a right to copy of Bobde panel report.’

Timeline of the case:

  • An Affidavit was released by a former SC staff, alleging the sexual harassment and persecution against her family by Chief Justice of India.
  • Following the publication of these reports in media, CJI convened an urgent hearing at Supreme Court (SC). As per the records this sitting was to deal with ‘'great public importance touching upon the independence of the judiciary.'
  • On April, 23, an in-house panel was constituted to probe the allegations by CJI, consisting of Justices S A Bobde, N V Ramana and Indira Banerjee.
  • On May 6, SC Secretary General during a press release informed that CJI has been given a clean chit by the justice Bobde panel and the content of the report will not be made public.

Background

  • Before any in-house procedure was established to deal with such cases, Parliament used to deal with them through the procedure for removal of judges given in the Constitution under Article 124 (for the removal of a Supreme Court judge) and Article 218 (for the removal of a High Court judge).
  • Later the court made a distinction between ‘impeachable behaviour’ and bad behavior through its various orders.
  • The idea of self-regulation came up first in a 1995 case concerning the then Chief Justice of the Bombay High Court.
  • Following that case, SC outlined the procedure that may be adopted to deal with such cases.
  • In 1997, CJI J.S. Verma circulated a document titled ‘Restatement of Values of Judicial Life’, containing the essential elements of ideal behaviour for judges.
  • In 1999, the procedure for in-house enquiry was adopted, on the line of a report by five-judge committee constituted for this purpose. But procedure was not made public.
  • In 2014, after the allegations of harassment by a woman district and sessions court judge against a sitting judge of the Madhya Pradesh High Court, a Supreme Court Bench directed the court’s registry to make the in-house procedure public for the sake of transparency.

What is the Procedure for enquiry against SC judges?

Misconduct allegations against the Serving judges of Supreme Court and various High Courts are dealt through an in-house procedure. Procedure for charges against High Court Judge If an allegation has been made against High Court Judge, Chief justice of High Court concerned shall examine it. If it is frivolous, CJ may just file the complaint and inform the CJI. If the complaint is of serious nature, CJ of High Court shall enquire into the matter and decide if further probe is needed. If CJ feels complaint requires deeper probe the complaint shall be forwarded to CJI. CJI would adopt the same procedure whether the complaint has been forwarded to him or he has received the complaint directly. CJI would enquire and get response from Chief Justice of High Court and concerned parties and if deeper probe is needed, a three-member committee, comprising two Chief Justices from other High Courts and one High Court judge, has to be formed. Procedure for charges against High Court Chief Justice If a charge is against the high court Chief Justice, the same procedure of getting the person’s response is followed by the CJI.  And if a deeper probe is needed, a three-member committee comprising a Supreme Court judge and two Chief Justices of other High Courts will be formed. Procedure for charges against Supreme Court Judge If a charge is against the Supreme Court judge, and CJI feels a deeper probe is needed, he would constitute a committee consisting of 3 judges of Supreme Court. Procedure for charges against Supreme Court Chief Justice If the charge is against a Supreme Court judge, the committee would comprise three Supreme Court judges. However, there is no separate provision in the in-house procedure to deal with complaints against the CJI.

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Purpose of an in-house procedure

It keeps outside agencies away from the investigating judiciary, thus maintaining the independence of judiciary. Awareness about existence of an in-house mechanism to deal with serious allegation against judiciary preserves trust of public in the judicial processes. Mechanism also ensures that frivolous complaints are rejected at an early stage. Possible outcomes from enquiry committee When committee found there is substance in the allegations made, one of the following steps can be taken: If the allegation does not have substance, the complaint shall be filed with CJI and the he may take such further steps as he deems fit. If allegation is of serious nature and warrants removal of the Judge, the judge concerned should be advised to resign and if judge is not willing to resign, CJI may advise Chief Justice of High Court concerned to not allocate any work to him and inform of the president and Prime Minister of this situation. This action clears the way for Parliament to initiate the proceedings for removal.

Why the report of committee is not being made public?

Mechanism to hear complaints against different stakeholders in the judicial system

This action clears the way for Parliament to initiate the proceedings for removal.

A sexual harassment victim can adopt several of the following courses

If a victim is Court-staff and complaint is against judge of HC/SC/CJI

  •       The inquiry will be conducted under the inhouse procedure.

If a victim is Non- Court-staff and complaint is against judge of HC/SC/CJI

  • The inquiry will be conducted under the in-house procedure.
  • The provision of Sexual Harassment act, 2013 may apply, as it doesn’t exclude any particular type of accused. However, sitting judges of the Supreme Court or High Court, or a sitting Chief Justice of any High Court is supposed to be inquired into under the In-House Procedure.

The Bar Council only looks into complaints of misconduct made against lawyers, under Section 9, 35 and 42(1) of the Advocates Act, 1961 and under the Bar Council of India Rules, 1975.

Prevention of sexual harassment act, 2013 could also apply if a non-court staff accuses lawyers of misconduct.

SC Service and Conduct Rules, 1961 will apply If a court-staff is being accused of misconduct.

The decision of report to be not made public by committee is based on the judgment of Indira Jaising v Supreme Court of India. This judgment states that in-house procedure has been adopted for inquiry to be made by the peers of judges in case of a complaint against the Chief Justices or Judges of the High Court in order to find out truth of the imputation made in the complaint. That in-house inquiry is for the purpose of his (CJI’s) own information and satisfaction.

Elements of Institutional bias in the case

Recently former SC judge Lokur has expressed his displeasure over how the sexual harassment case has been dealt by CJI and presented a critical overview of the procedure adopted:

What was done What should have been done
After publication of allegations, Secretary-General of the Supreme Court held that allegations are completely and absolutely false and scurrilous and are totally denied. Secretary-General in his capacity should have denied any concerns against the allegations and allowed the law to take its own course.
After entertaining the complaint, CJI, being the Master of the Roster, nominated himself as the Presiding Judge. CJI should have constituted a bench, presided by any other judge of SC, given the allegations over CJI himself.
Record of proceedings of the case did not indicate the presence of the CJI on the Bench. Records should have mentioned the name of CJI as the presiding judge.
Committee was appointed by the full court but CJI himself. Supreme Court Advocates on Record Association (SCAORA) as well as the Supreme Court Bar Association (SCBA) expressed their unhappiness with the procedural impropriety and requested the Full Court to take necessary steps required by law.
the mandate give to the committee was limited to the allegations of unwanted physical contact” and not of victimisation. Enquiry of the committee should have been in respect of both the allegations, as the affidavit of the staffer does contain verifiable documentary evidence, which could lead (if proved) to a conclusion of victimization.
the proceedings before the internal committee were informal and that is why the staffer was not permitted legal representation. Given the power imbalance between CJI and staffer and to protect the victim from re-victimisation, the committee could have permitted the staffer the comfort of a support person
The Secretary-General declined to give a copy of the report to the staffer by referring to a judgment in Indira Jaising v. Supreme Court of India. Given the inhouse enquiry was not a formal one and also referred judgment also does not refer to any such prohibition, the complainant could have been provided with the report.

 

Conclusion

This case has left many questions unanswered and incomplete. These questions must be answered by the Supreme Court and create a confidence among public that the highest judicial office of the country will not do injustice whoever is involved in it.

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