'These things are not forgotten, it will haunt the Supreme Court for a long time.'
On May 6, 2019, a three-judge panel investigating sexual harassment allegations against Chief Justice of India Ranjan Gogoi, while giving him a clean chit, said it did not find any substance in the allegations levelled by the complainant, a former Supreme Court employee.
This is the first time in the history of the Indian judiciary that a sitting Chief Justice of India has been accused of sexual misdemeanour.
The following day, on May 7, 2019, protests broke out outside the apex court, with several activists and lawyers protesting the procedure adopted by the three-judge panel, led by Justice Sharad Arvind Bobde, in dealing with the allegations against the CJI.
"From the word go, the inquiry went against every known canon of administrative law. It violated the rules of procedure, it violated the Constitutional rights of the lady, it violated the rules of natural justice in every possible form," Dushyant Dave, below, Supreme Court senior advocate and former president of the Supreme Court Bar Association, tells Rediff.com's Swarupa Dutt over the telephone from New Delhi.
"The judiciary has singularly and miserably failed in upholding the law, or at least failed in upholding the dignity of the woman concerned and in giving her justice," Dave adds.
For the first time in the history of the Indian judiciary a sitting Chief Justice of India has been accused of sexual harassment. How do you see the clean chit that has been given to him by the three-judge panel? Critics say it has eroded the credibility of the judiciary.
It's for the first time in the history of the judiciary the world over, not just the Indian judiciary, that a sitting Chief Justice has been accused of sexual harassment.
It's a most unfortunate episode.
The committee report exonerating the CJI, in a hasty manner and in a manner which was not judicious, has really added to the unfortunate nature in which the issue was handled and has eroded the image of the Supreme Court to a great extent.
Nationwide protests were held by women lawyers and activists and many were detained on May 7. Is there a sense of disquiet in the Supreme Court over the issue?
Judges definitely think they are above the law, that is why they have got together and issued a clean chit to the CJI.
Judges have often given lofty lectures to the public on law and justice; handed out the landmark Vishaka judgment.
But when it comes to themselves, the judiciary has singularly and miserably failed in upholding the law, in upholding the dignity of the woman concerned and in giving her justice.
This is such a serious matter that it is bound to raise debates in the minds, if not in the hearts of the people.
The matter is on the lips of everyone in the corridors of the Supreme Court and everyone is concerned and disturbed at the way the committee has handled the matter.
But Justices S A Bobde, Indira Banerjee and Indu Malhotra who comprised the three-member panel, are highly respected judges.
The manner in which the inquiry was conducted goes against every established norm of conducting an inquiry.
You have to understand that the Constitution does not afford any protection to judges over personal misconduct.
Only the President and the governors are given protection while they hold office.
As far as the CJI goes, it's (the charges are) about personal conduct and not judicial conduct.
In this instance, it is sexual harassment. Tomorrow if a judge commits murder, are the judges going to say that his crime will be determined by an in-house committee and therefore once the in-house committee exonerates him he is exonerated over the charge of murder?
The manner in which this inquiry has been carried out is absolutely unacceptable and unprecedented.
Critics say the CJI should have stepped down till his name was cleared. What do you think?
I think the CJI should have resigned.
If they really wanted to protect the reputation of the Supreme Court, he should have resigned straightaway.
Look, sexual harassment is a very serious charge.
The charge was strongly corroborated by the alleged events that took place prior to the day of the alleged incident and subsequently. And the large-scale victimisation that followed thereafter is unheard of.
This is absolutely inhuman, it violates her human rights and it is really unacceptable.
The Chief Justice should have resigned on these very grounds.
The judges on the panel should have forced him to resign.
But the three eminent judges did conduct an inquiry.
From the word go, the inquiry went against every known canon of administrative law.
It violated the rules of procedure, it violated the Constitutional rights of the lady, it violated the rules of natural justice in every possible form.
This kind of inquiry was definitely not in the purview of the in-house panel which should only be confined to judicial acts.
Supposing there is a charge of corruption against a judge, an inquiry can be conducted by a committee or a panel of judges, but not when it is a personal offence, like in this case.
Please remember, that sexual harassment is a cognisable, non-bailable offence.
Were you surprised when the CJI was handed a clean chit?
I was shocked, not surprised.
I also deeply disturbed and discomfited by what has happened.
Can the complainant challenge the clean chit given to the CJI?
It is not necessary to challenge the clean chit because, after all, it is an administrative, in-house procedure.
The difficulty is that they have tried to shut the debate in the country by giving the CJI a clean chit.
But they forget that the nation is watching and by and large people have not accepted the manner in which the committee went about its inquiry.
People are asking serious questions and doubting the authenticity of the whole exercise.
I have no doubt that the lady concerned will exercise her rights and pursue remedies, but if the inquiry report is released it may prejudice the lower courts where she may seek justice.
So, what should she do?
She can file a criminal complaint, which I have no doubt she will do.
She can challenge her dismissal as a Supreme Court employee, get redressal for the victimisation of her family ... she should do everything possible.
I do hope and pray that the lower judiciary and the high court come to her rescue.
The constitution of the second panel (to investigate the 'larger conspiracy by disgruntled employees') even before the first bench absolved the CJI -- was this indicative of the way the 3-judge committee was headed?
There is nothing to the conspiracy theory.
The antecedents of the person who has filed the affidavit need to be seen, questioned and tested.
I hope and pray to god that Justice A K Patnaik, who has been asked to look into it, really steers clear of this completely nonsensical claim that there is a conspiracy.
Yes, there certainly was a conspiracy on the part of the Supreme Court registry officials and police officials to harass this girl and her family, and that is what they should inquire into.
Justice Gogoi has described the allegation against him as a conspiracy to 'deactivate the office of the CJI'.
Every accused would like to get himself out of the charge made against him by saying something like this.
I'm not surprised Justice Gogoi has said that (laughs), but there is no substance to his claim.
What were the procedural errors in the way the panel handed the complaint?
Right from word go till the end, the panel has misdirected itself.
It should have been a panel of independent, external persons.
It should have been graded by a woman.
It should essentially have comprised women.
It should have set down procedures regarding taking down the complaint of the complainant, giving her the opportunity to produce evidence, taking down the statement of the accused, in this case the CJI, and allowing him to produce his witnesses and only after that should they have taken some kind of a decision.
This kind of a procedure where you record the statement of the lady, and then the judge, and present some kind of a report is absolutely a sham.
It is really surprising that judges who are so well-trained in law have fallen into this kind of a trap.
Why do you call it a trap?
It is a trap.
There is this belief that they have to save the institution of the judiciary and in that process judges are going out of the way to exonerate the CJI instead of realising that if the CJI was put to a fair inquiry, it is only then that the Supreme Court's reputation would have been intact and would have been held in even higher esteem.
The common man on the street would have then said that even the Chief Justice is subject to the same treatment that he subjects everybody else to.
The protests have stopped. Will this incident too be forgotten soon?
Nothing is forgotten, don't worry.
We had a judgment during the Emergency (Additional District Magistrate, Jabalpur vs Shivkant Shukla, 1976) where five Supreme Court judges including Justice P N Bhagwati and Justice Y V Chandrachud upheld the right of the government to suspend the Fundamental Rights of citizens during the Emergency.
That was our darkest hour and it is still being remembered and judges after judges are still apologising for it even after Justice Bhagwati and Justice Chandrachud had apologised.
These things are not forgotten, they will be haunting the Supreme Court for a long time.