The Supreme Old Boys’ Club
- Shraddha Chaudhary and Shreedhar Kale*
The paradox of the Supreme Court of India’s In-House Committee’s finding is that it is simultaneously shocking, and unsurprising. Hopes that the complainant would be given a fair hearing were perhaps always weighted against the fear that the “old boys’ club” ethic would triumph in the end. The problem is not that the decision is substantively wrong (though it might well be), but that it is astoundingly hypocritical. The honourable Committee has not only contradicted itself through the course of the proceedings, but has also flouted every rule of procedural fairness laid down by the Apex Court, and indeed, established in jurisprudence across the world.
This post will list and discuss the procedural breaches committed by the Supreme Court of India in handling the allegations against its Chief Justice through an analysis of its own precedent.
Problems of Procedure
“Natural justice is the essence of fair adjudication, deeply rooted in tradition and conscience, to be ranked as fundamental. The purpose of following the principles of natural justice is the prevention of miscarriage of justice.”
No man shall be a judge in his own cause
On April 19, 2019, a former staffer at the Supreme Court of India, via an affidavit addressed to twenty-two judges of the Supreme Court, levelled allegations against the present Chief Justice of India (hereinafter CJI), Ranjan Gogoi. She alleged sexual harassment by him, at his residence, and subsequent attempts to intimidate her and her family through the police. Once the story broke in the media, the CJI called for a Special Hearing, ‘In Re: Matter of Great Public Importance touching upon the Independence of the Judiciary’. A three-judge bench consisting of the CJI himself, Justice Arun Mishra, and Justice Sanjiv Khanna, assisted by the Attorney General and the Solicitor General of India proceeded to rubbish the complaint, based on the alleged criminal antecedents of the complainant, and their suspicions of a conspiracy to undermine the independence of the judiciary.
While the decision to set up an In-House Committee to deal with the allegations was made in a full-court held subsequently, the actions of the CJI nevertheless tarnished the objectivity and legitimacy of the said Committee. By creating and sitting on a bench dealing with allegations against him, the CJI used his prerogative as the holder of the highest judicial office in the country to appropriate the narrative and cast it in his own terms. The cause title subsumed an issue of sexual harassment at the workplace within an alleged larger conspiracy against the judiciary itself, thereby both detracting from the issue at hand and irreversibly colouring the perception of anyone subsequently dealing with it. Arguably, this can be seen in the comments made by Justice Mishra in a subsequent parallel hearing, dealing with an affidavit alleging a conspiracy against the CJI.
Constitution of the Committee
On April 23, 2019, in keeping with the Supreme Court’s Guidelines on In-House Procedures, a Committee consisting of Justice S.A. Bobde, Justice N.V. Ramana, and Justice Indira Banerjee was set up to “conduct an in-house proceeding” looking into the allegations. Justice Ramana recused himself from the Committee on a request made by the complainant, and was replaced by Justice Indu Malhotra.
The Guidelines on In-House Procedures deal with all allegations of misconduct against judges of High Courts or the Supreme Court, as long as it is a complaint of a serious nature, involving misconduct or impropriety. However, they are silent on the procedure to be followed in case the allegation is against the CJI, meaning that the facts of this case were outside the purview of the Guidelines from the first instance. Furthermore, allegations of sexual harassment at the workplace are not routine matters of misconduct. They represent a violation of gender equality, and the right to work, which are universally recognised basic human rights. Sexual harassment at the workplace is distinct also because it is steeped in dynamics of differential power equations, particularly evident in this case. Recognising these characteristics, the Supreme Court’s Vishaka Guidelines, and the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 [hereinafter ‘POSH’], which was based on these guidelines, made special provisions for inquiries into allegations of sexual harassment at the work place. Most notably, the internal complaints committee must be headed by a woman, must comprise of a majority of women, and must include an external member, familiar with issues relating to sexual harassment.
It would seem, prima facie, that the Supreme Court had a choice between the In-House Procedure Guidelines, and the POSH. However, considering that the institutions of the Supreme Court, such as the Court complex and the residential offices of its judges, are workplaces for numerous employees, including the judges themselves, the POSH would have been the more appropriate choice in this case. Moreover, given the sensitivity of the case, and particularly, the concerns of the honourable judges regarding its potential impact on judicial legitimacy, the Court should have taken special care to ensure that the procedure was transparent, fair, and in line with universal best practices.
Breach of Right to Fair Trial
After having been constituted, the Committee met the complainant twice, and, as per the complainant, repeatedly clarified that they were not a sexual harassment committee, nor an in-house proceeding. This begs the question, what was the mandate, scope, and purpose of the trio of judges? The complainant’s statement was taken, but a copy was not supplied to her, and despite her hearing impairment, her requests to be allowed a lawyer or a support person were declined. Consequently, she withdrew from the case and the proceedings continued ex-parte.
The CEDAW Committee on the Elimination of Discrimination against Women, General Comment No. 33, reiterated that ‘accessibility’ of justice was an essential part of the right of access to justice: “Accessibility requires that all justice systems, both formal and quasi-judicial, be secure, affordable and physically accessible to women, and be adapted and appropriate to the needs of women, including those who face intersecting or compounded forms of discrimination”. [emphasis added]
Similarly, Article 13(1), United Nations Convention on the Rights of Persons with Disabilities lays down, “States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.” [emphasis added]
This principle is recognised and enshrined in Section 12 of Rights of Persons with Disabilities Act, 2016. Therefore, not allowing the complainant (at least) a support person created a major barrier to access, and violated her right to be heard and to have a fair trial.
On May 6, 2019, the In-House Committee, having heard Justice Gogoi, concluded that the complainant’s allegations were unsubstantiated, and sent a copy of the report to the CJI alone. This was in accordance with the requirements of the Guidelines on In-House Procedures. Indira Jaising v. Supreme Court of India & Anr., was cited to justify the decision to not make a copy of the report available to the public, not even to the victim. Curiously, this case had been about in-house committee procedures, indicating that despite the disclaimers allegedly issued to the complainant, the trio of judges was an in-house committee, at least for the purposes of disclosure of findings.
It would appear that through its own decision, the Supreme Court has exempted itself from the highest rules of fairness, which apply, to every other institution and person. The relevance of a reasoned order is two-fold: first, it informs the parties of the arguments and evidence relied on by the deciding authority to come to a decision; and second, it allows that decision to be challenged on merits, thereby preventing arbitrariness.
In Madhya Pradesh Industries Ltd. v. Union of India and Ors., the Supreme Court eloquently summed up the relevance of reasoned orders,
“Self-discipline and supervision exclude or at any rate minimize arbitrariness. The least a tribunal can do is to disclose its mind. The compulsion of disclosure guarantees consideration. The condition to give reasons. introduces clarity and excludes or at any rate minimises arbitrariness; it gives satisfaction to the party against whom the order is made; and it also enables an appellate or supervisory court to keep the tribunals within bounds. A reasoned order is a desirable condition of judicial disposal.”
Similarly, in Raj Kishore Jha v. State of Bihar & Ors., the Supreme Court reiterated, “Reason is the heartbeat of every conclusion and without the same, it becomes lifeless.”
While the In-House Committee was neither a tribunal nor a court, since it was examining an allegation of significant public importance, it ought to have been bound by this basic principle of natural justice, which goes beyond black letter law. The reason given by the judges in Indira Jaising, for not making the report public was that the inquiry ordered and the report made to the CJI is only for the purpose of his information, for him to take further action, if any, and not for the purpose of disclosure to any other person. However, this is circular and self-serving. There does not appear to be a concrete reason why the report should be veiled from public scrutiny.
Problems of Perception
The Shroud of Secrecy
Had a similar situation arisen in any other setting, one could be reasonably certain that the Supreme Court of India (or any court of justice) would come down hard on the inquiry proceedings. At the very least, it would order a fresh, fair and impartial inquiry. Indeed, in the past, the Supreme Court has stressed the paramount importance of transparency in a democratic country, holding the police, politicians,  and even the armed forces, to a high standard of public accountability.
What, then, justifies this opacity when it comes to judges?
A Crisis of Legitimacy
As early as 1923, Lord Chief Justice Hewart, in R v. Sussex Justices, Ex Party Mcarthy, laid down one of the foundational principles of legitimacy in dispensing justice: justice should not only be done, but be seen to have been done.
The Supreme Court itself has, time and again, reaffirmed this principle, “Courts have always been considered to have an over-riding duty to maintain public confidence in the administration of justice - often referred to as the duty to vindicate and uphold the ‘majesty of the law’.”
In the past few years, the Court had made an admirable attempt to cultivate a reputation, not only as a defender of the rights of women, but also a protector of sexual, religious, and social minorities. Through its opaque handling of the allegations of sexual harassment against the CJI, the Supreme Court has called into question its legitimacy as the final arbiter of rights, and the highest portal of justice, especially for the weak and vulnerable.
These allegations were an opportunity for the Apex Court to set an example of fair and transparent proceedings which gave an equal, and valuable voice to the complainant, despite (and perhaps, because of) the obvious difference in power between her and the CJI. Given that it is a space where women work in several capacities, and an institution to which women have long looked to for justice, the blatant procedural impropriety is nothing short of a betrayal.
Women across India, but particularly women in the legal profession must now ask themselves- where do we go from here?
*Shraddha Chaudhary and Shreedhar Kale are alumni of the National Law School of India University, Bangalore.
 Dr. Arijit Pasayat J., in Uma Nath Pandey & Ors v. State Of U.P.& Anr, AIR 2009 SC 2375.
 Report of the Committee on In-House Procedures (1999), notified in 2015 to deal with allegations of misconduct against judges of High Courts and the Supreme Court, available at https://www.supremecourtofindia.nic.in/pdf/cir/2014-12-31_1420006239.pdf (Last visited on May 11, 2019).
 Vishaka & Ors. v. State of Rajasthan, AIR 1997 SC 3011.
 Vishaka & Ors. v. State of Rajasthan, AIR 1997 SC 3011.
 Committee on the Elimination of Discrimination against Women, General Recommendation on Women’s Access to Justice, CEDAW/C/GC/33 (July 23, 2015).
 Article 13(1), United National Convention on the Rights of Person with Disabilities, 2006, A/RES/61/106.
 S. 12, Rights of Persons with Disabilities Act, 2016 reads:“(1) The appropriate Government shall ensure that persons with disabilities are able to exercise the right to access any court, tribunal, authority, commission or any other body having judicial or quasi-judicial or investigative powers without discrimination on the basis of disability.(2) The appropriate Government shall take steps to put in place suitable support measures for persons with disabilities specially those living outside family and those disabled requiring high support for exercising legal rights.”
 Indira Jaising v. Supreme Court of India & Anr ,2003 (5) SCC 494.
 Taxquet v. Belgium, ECHR 1806.
 Madhya Pradesh Industries Ltd. v. Union of India and Ors, AIR 1966 SC 671.
 Raj Kishore Jha v. State of Bihar & Ors, 2003 (7) SCC 152.
 Indira Jaising v. Supreme Court of India & Anr, 2003 (5) SCC 494.
 D.K. Basu v. State of West Bengal, 1997 (1) SCC 416: “How do we check the abuse of police power? Transparency of action and accountability perhaps are two possible safeguards which this court must insist upon.”
 Public Interest Foundation & Ors. v. Union of India, 2018 SCCOnline SC 1617: “…it is a solemn responsibility of all concerned to enforce the law as well as the directions laid down by this Court from time to time in order to infuse the culture of purity of politics and in democracy, and foster and nurture an informed citizenry…”
 Extra Judicial Execution Victims’ Families Association v. Union of India, 2017 (8) SCC 417: “The right to know gained increasing importance over the years. This right was articulated by the United Nations High Commissioner for Human Rights… It is necessary to know the truth so that the law is tempered with justice.”
 R v. Sussex Justices, Ex Party,  1 KB 256.
 Zahira Habibulla H. Sheikh & Anr. v. State of Gujrat, AIR 2004 SC 3114.