Sometimes, injustice is not only done but also seen to be done, as when the woman who accused Chief Justice of India (CJI) Ranjan Gogoi of sexual harassment on October 10 and 11 2018, was forced to declare to the media she was not part of any conspiracy to destabilise the judiciary. “The affidavit is the truth of my life and there is no conspiracy,” she swore to the media after her charges were dismissed by a three-judge panel of whom two were women judges. After 52, women and lawyers who displayed placards in her support outside the Supreme Court were detained by the Delhi police, prohibitory orders were clamped outside the court’s C-gate.
The dismissed woman employee was forced to come out of seclusion after the three-judge panel absolved the CJI of all charges. Earlier, the woman walked out of the hearings because she feared injustice would be done to her. In retrospect, her fears appear to be vindicated. On Wednesday, another 17 women were detained for agitating in support of the woman. The fact that the CJI has not stepped down after she gave specific details of his alleged misbehavior with her and on the contrary listed a case on April 20 titled “A Matter of Great Public Importance Touching Upon the Independence of the Judiciary” for hearing in the woman’s absence was a gross example of injustice to the woman violating the principle of audi alteram partem which literally means judge nobody unheard.
For the refusal of the CJI to face an impartial probe may set a precedent when others occupying high Constitutional posts may refuse to resign until the charges against them are proved which takes decades in India’s sluggish courts. The CJI’s alleged misuse of a Constitutional office to hound the woman out of her job and force her husband and brother-in-law into penury will also erode the judiciary’s image as an arbiter between the state and its citizens. For if a CJI destroys the right to life of a woman after transferring her to his home-cum-office, how impartial will future CJIs be in disputes between the state and its citizens will be anybody’s guess. It was Justice Ranjan Gogoi himself who alleged on January 12, 2018 that his predecessor Dipak Misra assigned a PIL seeking an independent probe into Judge Loya’s death to a bench with a predictable outcome.
Here, too, the independence of the judiciary means no Indian citizen can doubt the words of two judges who declare without taking an oath that they accompanied Judge Loya to hospital where he later died. For if our future CJI Dhananjaya Chandrachud is to be believed, no Indian citizen can doubt the utterances of two judges, whether they have been given the oath or not, whether they are discharging judicial functions or not. For judges are akin to God and what they say in private or public must be accepted as unadulterated truth. Even without cross-examination, for it is a sacrilege to even dream of testing what a judge may utter.
To return to the present controversy, senior advocates Indira Jaisingh and Anand Grover were issued notices on a petition filed by an NGO, Lawyers Voice, alleging their NGO Lawyers Collective flouted the rules relating to receiving and using foreign funds. Jaisingh and Grover who have a good practice in the Supreme Court have declared in a press note uploaded on their website they were being “victimised” for opposing the procedure adopted by the three-judge panel to determine the veracity of the sexual harassment charge.
This is why power is inimical to justice because these three justices ensured the image of the Supreme Court overrode the fundamental rights of a helpless woman and her family. She has alleged her life is in danger after some men traced her married sister to a town in UP and warned her husband to convey her sister’s life was in danger. “Do not speak to the media,” these men were alleged to have said.
And so when Justice H R Khanna gave a casting vote in the Keshavananda Bharati case in 1973 to declare that Parliament could amend the Constitution but not touch its basic structure which included the independence of the judiciary, he certainly did not envisage a future CJI like Justice Ranjan Gogoi allegedly stymieing all information about his alleged misbehaviour with a woman in the guise of judicial independence. Nor could he envisage that 46 years later, his own nephew would sit as part of a three-judge bench to protect putative judicial independence when a future CJI was accused of sexual impropriety which violated the right to dignity of a hapless woman.
Indira Gandhi ensured her minion Justice M H Beg superceded Justice H R Khanna to become the CJI. But the New York Times of that period wrote a scathing editorial to declare if India ever found its way back to the freedom and democracy that were proud hallmarks of its first 18 years as an independent nation, someone would erect a monument to Justice Hans Raj Khanna of the Supreme Court.
And so by stretching and twisting these four pedantic words called independence of the judiciary, the three-member committee comprising Justices Sharad Arvind Bobde, Indu Malhotra and Indira Banerjee, have indirectly declared the name and dignity of the Chief Justice of India is more important than the fundamental rights of a helpless woman. Although not proved, the fact that she rebuffed the CJI’s advances which culminated in her transfer and termination of services resulting in adverse publicity for the CJI is an unforgivable sin. She did not go to the media but sent her affidavit to 22 judges after her husband and his brother were thrown out of the Delhi police where they were constables.
And so we have to understand that “independence of the judiciary” which is part of the basic structure of the Constitution, means that the three judges who absolved CJI Ranjan Gogoi of all charges behind closed doors of the Supreme Court, are accountable only to their own conscience and to the conscience of CJI Ranjan Gogoi. They can devise their own procedures to even refuse the complainant a copy of what they recorded. They can refuse to allow lawyers and activists to analyse their findings in their secret report based upon confidential recordings and cabal-like deliberations behind closed doors.
This is why another controversy broke out when the Indian Express published a news report that Justices Dhananjaya Chandrachud and Rohinton Nariman met the three-member committee to ask that a second inquiry be held. The Supreme Court promptly denied this news report but it appears there may be dissent among some of the judges as to the culpability of their CJI Ranjan Gogoi. Occupying high constitutional office should not make a CJI immune from facing a probe which should be held in public if justice is to be done.
And in all this, a lawyer like Utsav Bains whom lawyers like Prashant Bhushan allege have no credibility because he (Bains) met the CJI before filing his affidavit declaring he was offered Rs 1.50 crore to represent the discredited woman who dared to allege CJI Ranjan Gogoi sexually harassed her, may emerge as the saviour of the judiciary. And so, despite the muck flying all around of corporate magnates like Anil Ambani allegedly manipulating court orders, we must believe the independence of the judiciary is at stake. For judicial independence is what the judges say it is when a helpless woman points fingers at the CJI to allege she was sexually harassed.The writer holds a PhD in Media Law. He is a journalist-cum-lawyer of the Bombay High Court.