On May 1st, 2019, the three-judge inquiry into charges of sexual harassment against the Chief Justice of India decided to proceed without the complainant, with the CJI appearing before it. The complainant had withdrawn from the inquiry the previous day, describing the shocking course of action adopted by the inquiry committee, in complete violation of basic tenets of natural justice and the Supreme Court’s own jurisprudence on sexual harassment. PUDR strongly condemns the committee’s decision to proceed in her absence and demands that an impartial inquiry be conducted by a fresh committee comprising external members. Given the Court’s brazenly self-serving responses to these charges even outside the committee, there is little doubt that the complainant is right in fearing she will not be given a fair hearing.
There is no clear procedure for the present case, since the Court’s ‘In-House Procedure’ does not provide a process for complaints against the CJI and its 2013 Regulations on the Internal Complaints Committee for sexual harassment do not apply to the current complainant. The very fact that such a loophole exists is already condemnable. But for the Court to take advantage of this ambiguity by evolving a farcical procedure is an even more shameful abuse of power, severely detrimental to public trust in the institution.
The judges did not even inform the complainant what the committee procedure would be, merely telling her that it would not follow any laid-down procedure but be entirely ‘informal’. In a 2014 judgement (ADJ ‘X’ v. High Court of MP), the SC itself had stressed that, in cases of sexual harassment, its ‘In-House Procedure’ can be modified in “the sc and circumstances of a given case, to ensure that the investigative process affords safeguards, against favouritism, prejudice or bias.” But the changes to procedure in the present case, far from trying to afford better safeguards, dismantle the most universal ones. In exercising their discretion over this ‘informal’ procedure, the judges chose to deny the complainant a lawyer, though her adversary is the highest-ranking legal authority in the country. When the complainant informed them that she had a hearing impairment and could not hear how they were dictating a record of her statements, their response was to deny her a copy of her own statements. Such modifications, coming from judges who have spent decades engaging with the basic requirements of a fair hearing across areas of law, can only indicate a bias against the complainant. In addition, the very composition of the committee is of course flawed. While the Court’s judgements and Regulations recognise the importance of an external member on such committees, not subject to the same influences as those within the organisation, the three judges hearing the complainant are all junior to the accused, as are any potential witnesses.
It would be impossible to list all the norms that the Court has violated in the last week alone. In the widely-criticised ‘special hearing’ on 20th April, the CJI presided over a hearing in his own cause and essentially falsified this fact in the final order. The two other judges on the bench, without hearing the other side, joined the CJI in conflating allegations against him with an attack on the “independence of the judiciary.” The Attorney-General and Solicitor-General not only watched these legal axioms being violated, but actively participated. At the customary Monday meeting of SC judges afterwards, judges reportedly asked for all-male staff at their residential offices. There are subtler ways to deny fair process. But for high-ranking authorities to band together solely to discredit a complainant, without even an ostensible concern for rules of fairness that they themselves made, is a new nadir for its sheer brazenness.
In light of these events, and echoing demands made by several groups of lawyers and women's rights activists, PUDR demands:
- The present three-judge inquiry should not proceed in the complainant’s absence. The inquiry into her charges should instead be conducted by a special committee comprising and headed by external members who are not sitting Supreme Court judges.
- The inquiry should be in accordance with the principles of natural justice, the Supreme Court’s own guidelines in Vishaka v. State of Rajasthan (1997), and the Prevention of Sexual Harassment Act (2013).
- The complainant’s requests for video-recording of proceedings, representation by a lawyer etc. should be granted.
- Appropriate action should be taken against functionaries of the Court and the Delhi Police based on the findings of an impartial inquiry.
- Supreme Court regulations should be suitably amended to fill existing gaps; including the exclusion from the 2013 Regulations of employees governed by the Court’s service rules, and the lack of an ‘In-House Procedure’ for complaints made against the Chief Justice of India
Shahana Bhattacharya and Deepika Tandon