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Sexual harassment – Legal position versus Cynicism

An advocate and former professor of law writes about challenges and legal processes to be followed in wake of sexual harassment charges against judges.

The office of the Chief Justice of India was sought to be hit by a ‘construct’, crafted by use of classical ‘tempered language’ whereby the author played with the emotive quotient of the readers by showing how the victim was all ‘taken in’ by seemingly normal gestures of a person for most part of the narrative, until realization dawned in hindsight that all such gestures were actually a camouflage over the person’s vile intents and then, with one stroke, such person was sought to be nailed down.

Such narrative, on the strength of the craft deployed, appears to ride on an ‘uncanny’ and ‘unusual’ ability of the portrayed victim to not only remember but also describe innumerable dates, times, contexts, surroundings, backdrops, sequences etc, of ‘events’ from distant past, with clarity of ‘tutored’ proportions.

However, it is the audacity of the ‘construct’ that is worthy of serious attention than its crafty contents. The unhindered and unrestrained flow of the audacious ‘construct’, and the pugnacious reactions thereto, have thrown up a far important question that seeks immediate attention and decisive intervention of the powers-to-be.

The question revolves around the vulnerabilities and armour of the Office of The Chief Justice of India, as part of not only the edifice of Indian Judiciary but also as the Constitutional Head of the Supreme Court of India. In this context, a look at the Constitutional scheme would show that Supreme Court of India ITS ESTABLISHMENT & CONSTITUTION (Art 124) is envisioned under Part titled ‘UNION JUDICIARY’, as consisting of ‘a Chief Justice of India’ and ‘thirty’ other Judges, with a clear implication that ‘the Chief Justice of India’ would form a distinct class, even though generically speaking, he would be one of the Judges, as in Chief Justice, of the Supreme Court of India [as per Form of Oath IV, Third Schedule].

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The functional primacy of the ‘Chief Justice of India’ would also reflect in matters connected with core administrative powers of Supreme Court of India, including in matters pertaining to Courts & establishments etc of other Judges [Seat of Supreme Court-Art. 130, Officers & Servants of the Supreme Court Art. 146 (1 & 2) and Expenses of the Supreme Court Art. 146 (3)]. Such primacy of the office of the Chief Justice of India, as the master of the roster, has also come to be established in matters connected with Listing of Cases, formation of Benches etc in the Supreme Court of India.

That apart, the role of the office & Secretariat of the Chief Justice of India in administering the appointments & transfers of Judges & Chief Justice of the High Courts as well as appointments of Judges of the Supreme Court, through the in-house Collegium system, is of overriding importance to the Indian Judiciary. In fact, the appointment of an incumbent Chief Justice of India by the President of India rides on the recommendation of the sitting/outgoing Chief Justice of India.

Another aspect that needs prime focus is the functionality of Judges, and the Institutional necessity that such functionality be guarded zealously, and at all costs. This is more particularly true for Judges of Constitutional Courts, who have to shoulder the solemn responsibility of examining the functioning of the Constitutional scheme and implementation of each Constitutional assurance in every corner of their jurisdiction.

Needless to reiterate, the Judges of the Supreme Court are required to exercise a jurisdiction that spreads across the lengths and breadths of the country, even as their wisdom and words are ordained to be the letter of the law of the land. The attack on their ‘mindspace’ needs to be recognised as an attack on the Institution, and it is this aspect that needs to be further armoured.

In the aforesaid backdrop, and in light of the facts and circumstances that have emerged post the strategic feed of the aforesaid ‘construct’ to the media houses and residences of other Judges of the Supreme Court, it is the need of the hour to recognise this attack on the Institution, so that the office and Court of the Chief Justice of India be fortified further, with reference to such ‘constructs’ as may be invented and strategically steered to destabilize such office and Court by hitting at the mindspace of incumbent.

In this context, the Constitutional immunity as was sought to be built around the Judges of the Supreme Court of India can be gauged from Article 124 which, among others, laid down, firstly, the two grounds for their removal being proved misbehaviour & incapacity, and secondly, that only the Parliament would by law lay down procedure for investigation of any such alleged misbehaviour and incapacity, as well as the procedure for their removal by the President, if the ground(s) stood proved.

In terms of such Article, the Parliament enacted the Judges (Inquiry) Act, 1968 with a view to regulate the procedure for investigation and proof of the misbehaviour or incapacity of a Judge (including Chief Justice) of Supreme Court [Section 2c], and for presentation of an address by the Parliament to the President, in that connection, though the provisions do not distinguish between a Judge of High Court or Supreme Court and the procedure is the same for all.

Clearly, the provisions aforesaid speak of a Constitutional mandate that the Judges, including the Chief Justice, of Supreme Court of India cannot be bothered by any issue(s) that would not pass the muster as laid down/prescribed by the Constitution / Parliament. It is also clear that no ‘investigation’ / ‘inquiry’ can be ordered / conducted against Judges/CJI, to even begin probing any alleged misbehaviour or incapacity, except by the Speaker of Lok Sabha or Chairman, Rajya Sabha or by them jointly, as the case may be, on their admitting a motion by prescribed minimum nos. of Members of their respective Houses, and thereafter by appointing a 3-member Committee as prescribed by the Act.

In addition stands the In-House Procedure that came to be established by “the Supreme Court of India, vide Full Court Resolution dated December 15, 1999, wherein and whereby a Report of a Committee of Judges on ‘In-House Procedure’ dated 31st October, 1997 was unanimously adopted, with a few modifications.

The In-house procedure was brought in with a view to devise such procedure for taking suitable remedial action against Judges who, by their acts or omission or commission, do not follow universally accepted values of Judicial life, including those stated in the Restatement of Values of Judicial Life, and it was further claimed that such procedure would serve dual-purpose firstly, the allegations would be examined by his peers and not by an outside agency and thereby the independence of Judiciary would be maintained, and secondly, the awareness that there exists a machinery for examination of Complaints against a Judge would preserve the faith of people in the Independence and impartiality of the Judicial process.

The In-house procedure prescribes three different stages to notice the allegations against High Court Judges, Chief Justice of High Court and Judges of Supreme Court of India respectively and also gives functional primacy to the Chief Justice of India therein, in taking decisions connected with such procedures. The appointment of a three-member Committee of Judges to carry out an enquiry is the third stage to which the present enquiry was straightway carried at the request of the incumbent CJI. The Inquiry in the In-house Procedure is meant to be in the nature of a fact-finding inquiry wherein the Judge concerned would be entitled to appear and have his say, but it would not be a formal judicial inquiry, involving the examination and cross-examination of witnesses and representation by lawyers etc.

Further, on the outcome of the Inquiry, if the Committee finds substance in the allegations contained in the complaint and the misconduct disclosed in such allegations is such that it calls for initiation of proceedings for removal of the Judge, the Chief Justice of India again has been entrusted to advise the concerned Judge to resign his office or seek voluntary retirement, and if such Judge expresses unwillingness to do either, the Chief Justice of the High Court would be advised by the Chief Justice of India not to allocate any judicial work to the Judge concerned, and the President & PM would be intimated about such decision as well as the reasons behind such decision, and a copy of the Inquiry Report would be forwarded to them.

In the aforesaid backdrop, sufficient safeguards and procedural immunities may appear to be available for Judges against complaints / allegations which turn out to be false / baseless/ unsubstantiated etc, however such safeguards appear to work only in case of long-drawn inquiry through the due process.

The present scenario has thrown up a new challenge where, without following due process, the office and Court of the Chief Justice of India is sought to be vilified and tarnished overnight by the ‘construct’ roaming around in public domain through media, as well as by a clear and motivated campaign riding on it. It is this attack on the peace and tranquility of the institutional mindspace that invites serious attention.

Let there be no abruptness in our conclusions, an enquiry as contemplated in law within the four corners of the prescribed procedure is at work. Give the system a chance to work and belt out. Judges, because of the very nature of their duties, constantly earn the ire and scorn of majority of stakeholders like litigants/lawyers/lawyer associations etc at any given point of time. The job is made more difficult by the fact that Supreme Court is the Court of last resort, and the stakes are infinitely high, which drive extreme emotions amongst those stakeholders and their networks. Added to that are the complex responsibilities of the Chief Justice of India on the administrative side, and the Institutional functions discharged by and/or in the name of the Chief Justice of India.

Such and other realities, including the aforesaid institutional requirement to zealously protect the mind space of Judges, need to be looked into urgently, and the processes and safeguards reworked so that the offices of the Chief Justice of India and Judges are better protected, and the Supreme Court of India regains its glory in the public discourse and is not shackled and pulled down from its high pedestal.

The Institution needs to ensure that the trust of the millions may not be dislodged nor assailed by such ‘constructs’ of a few.

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Swarupama Chaturvedi
Swarupama Chaturvedi is an Advocate-on-Record, Supreme Court of India [formerly Asst. Professor, National Law School of India University, (NLSUI), Bangalore]. B.SC. LLM [Gold Medalist]

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