Introduction:
A former employee of Hon’ble Supreme Court of India made allegations of sexual
harassment against the Sitting Chief Justice of India, Shri Ranjan Gogoi, in
her Affidavit which she sent to all the Judges of Hon’ble Supreme Court of
India. The Affidavit, sent on April 19, 2019, has created a furore across the
Nation at the time when the Nation is in the grip of Parliamentary Election 2019.
Allegation
of Complainant:
According to the Complainant, the alleged
incident happened on October 10 and 11, 2018 and thereafter, the woman was
dismissed from her services and even her husband and two of her brothers-in-paw
were suspended from services allegedly on frivolous ground and flimsy reasons.
Thereafter, the woman was arrested in a case of alleged bribery, that was
registered in March, 2019 and the said bribery case is now shifted to Crime
Branch. While the charge of bribery has been made against the woman, there is
no charge against the briber who is the complainant against the woman. The
woman who is currently out on bail, claims that the case is fabricated. The woman who has made alleged sexual
harassment against the Sitting Chief Justice of India Shri Gogoi is about 35
years old. The woman has provided her
detailed account of how she allegedly faced sexual harassment and other kind of
harassments by the sitting Chief Justice of India. The woman was working at the
Chief Justice Gogoi’s residence Office from August, 2018 and she has provided
in her Affidavit threadbare details of the way she was allegedly harassed by
the Sitting Chief Justice of India Shri Gogoi.
Her portion of Affidavit, discussing the incident of 10th and
11th October 2018 is as under:
“Though I usually wear a uniform of
black and white clothing, on that day since it was the first day of Navratri, I
had worn an orange kurta and dupatta. The CJI referring to my clothes, told me,
“You are looking pretty good today.” The CJI asked me to come and stand next to
him, he got up from his chair. The CJI then asked me, “What can you do for
me?”, I kept repeating that I was very grateful and that everybody in my family
was very happy. The CJI then slid his hand from the back of my head, along my
back to my hipline, till my lower back. I immediately froze and my body
stiffened. I think the CJI sensed this, and so he immediately pulled both my
cheeks, like one would do to a child. He told me that he is like this with his
daughter too.”
“CJI said your whole family must be
very happy. He told me that “If you put on some weight you will look good…”.
The CJI once again asked me, “So, what can you do for me”. He asked
me whether I have written anything down; I showed him a notepad on which I had
written how grateful I was…The CJI read the note. He then got up from his chair
and walked across and came and stood to my left. Since he was standing I too
stood up as I could not continue sitting when the CJI is standing. He took my
notepad from my hands and put it aside on the desk, he then took my hands into
his and told me that my hands smell nice, he then pinched my cheeks, he then
put his arms around my waist from the front, he said, “I want this from
you”. When I had stood up I had put my hands behind my back. He hugged me
around the waist, and touched me all over my body with his arms and by pressing
his body against mine, and did not let go. He told me “hold me”, he did
not let go of me despite the fact that I froze and tried to get out of his
embrace by stiffening and moving my body away. Since he did not stop forcibly
hugging me, I was forced to push him away from me with my hands. When I pushed
him away, he hit his head against a book shelf/cabinet on my left. My first
thought was why would the CJI think he can do something like this to me. I
immediately left the room and was in a state of complete shock and was unable
to think clearly after this. I sat at my desk.”
Response
to the Allegation:
The Secretary General of Hon’ble Supreme
Court responded by saying that the allegations against the Sitting Chief
Justice of India Shri Gogoi are completely false and scurrilous. The Secretary General of Hon’ble Supreme
Court further stated that the woman was dismissed from the services as per
procedure. He further added that
services of her brother-in-law was terminated as his performance conduct were
not satisfactory. The Secretary General
of Hon’ble Supreme Court further stated that the woman was dismissed from her
services as per procedure. The Secretary General of Hon’ble Supreme Court also
talked about the Criminal Complaint pending against the woman as there is a
case of bribery. According to the
Secretary General of Hon’ble Supreme Court, the woman’s family has criminal
antecedents and there were two cases against her filed in Hari Nagar police
station. The Secretary General of Hon’ble Supreme Court also termed the
allegations against the Sitting Chief Justice of India Shri Gogoi as an
after-thought and further stated that the woman was transferred out of the
Sitting Chief Justice of India Shri Gogoi’s home office because there were
complaints made against her by the Secretary of CJI to the Secretary General on
account of her inappropriate behaviour. The Secretary General of Hon’ble Supreme
Court further stated that the allegations are made as a pressure tactic to come
out of the various proceedings which have been initiated under law against the
woman and her family for their wrong doings.
RESPONSE
OF SUPREME COURT OF INDIA; UNION OF INDIA AND MEDIA:
Soon
after the complaint came out in public, CJI constituted a 3 judge bench which
included CJI as well and disposed off the PIL. Hon’ble CJI termed the
allegation as a part of bigger plot to deactivate him and also made an
emotional appeal based on his austerity and meager savings. The union of India
as well as the Registry of Supreme Court of India gave an impression that
entire government machinery as well as Supreme Court stands behind the CJI. The
allegations were termed as attack on judiciary.
The
report in various sections of media made a variety of speculation. However, there is no point in discussing the
same as the same is without any concrete evidence and is more in the nature of
presumption rather than based on hard facts or any established principles of
law.
Thereafter,
a Committee of 3 sitting judges of Supreme Court was formed which called the
complainant and after hearing her and CJI closed the matter and gave clean chit
to CJI as they found no substance in the allegation of the complainant.
LEGAL
PRECEDENTS:
Vishakha
Guidelines (Vishaka and Ors. v. State of Rajasthan & Ors. [JT 1997 (7) SC
384]) Concerning sexual harassment in the workplace can be
considered as the basic piece of document dealing with situation like the
aforesaid.
The
norms laid down by Hon’ble Supreme Court in the case of Vishaka consist of all
basis on which the issues related to sexual harassment at workplace needs to be
tackled and handled and thus, the Vishaka Guidelines is a benchmark, based on
which the allegations of sexual harassment needs to be tackled and taken care
of.
The
said Guidelines provide for duties of employer and other responsible persons in
work place to provide procedures for resolutions, settlement or prosecution of
acts of sexual harassment by taking all steps required. Keeping that in mind, in the present case, was
it not the duty of the Hon’ble Supreme Court of India to set up a mechanism for
the resolutions, settlement or prosecution in the alleged cases of sexual
harassment at the work place? The said Guidelines also provide for
preventive steps, criminal proceedings as well as disciplinary actions that are
required to be taken in case of any proven sexual misconduct. However, in the
present case, we are only concerned with allegations as to what should be the
mechanism by which the allegations have to be tacked if it is labeled against
the Sitting Chief Justice of India who is looked upon by one and all as a
“Dharmaraja” on the chair.
There
is a provision for “Complaint Committee” as per Vishakha guidelines and
certainly that is something which was/is required to be done even in the
present case in a true sense of the term.
Hon’ble Supreme Court of India formed a Committee to look into the
allegations labeled against the Sitting Chief Justice of India Shri Gogoi.
However, the said Committee was formed by the Sitting Chief Justice of India
Shri Gogoi himself and on this account, a question can be raised with regard to
its impartiality. In fact, the Committee could have been constituted either by next
three senior Judges or even by President of India in consultation with next
three senior Judges of Hon’ble Supreme Court of India. Further, in the present
case, Sitting Chief Justice of India Shri Gogoi, himself, participated in the
hearing when, for the first time, the matter was taken by the Court. That also
is a wrong precedent and should not have been allowed. Rightly or wrongly, once an allegation has
been made, the concerned party should not deal with the issues involved in any
manner so as to raise any doubt with regard to impartiality and so as to cause
any fear in the mind of the alleged victim.
Further, in the present case, the hearing happened in a very secluded
manner and it was not a public hearing.
Further, the alleged victim was not allowed to get representation by a
lawyer which is a fundamental right of a victim in any such cases. Thus, it
will not be wrong to say that a Historical Blunder has been committed and at
the same time, a Historical Opportunity has been lost to set the things right
in its correct spirit so as to handle the allegations of sexual harassment at
the top echelons of Judiciary and which could have been a milestone
something similar to Vishaka Guidelines for
generation to come. Sadly, that
was not to happen and the knee jerk reaction and the manner in which the entire
episode was handled have only caused a loss to the Nation which cannot be fathomed
at this juncture.
Imagine
a question which comes to our mind as to why Vishaka Guidelines were not
followed in the present case when the allegations of sexual harassment were
labeled against the Hon’ble Chief Justice of India?
Article
14 of Constitution of India deals with equality of law
and to the best of my understanding, other than the sitting President and
Governor, nobody has got any special privilege as far as Indian Penal Code and
Criminal Procedure Code are concerned.
It
is also true that in the case of K. Veeraswami V. Union of India & Ors.,
1991 (3) SCC 655, a Constitution of Bench of the Hon’ble Supreme Court held
that no criminal case shall be registered u/s 154 of Cr.P.C against Judge of
the High Court, Chief Justice of High Court or Judge of Supreme Court unless
the Chief Justice of India is consulted in the matter. In the same Judgement, it has been held that
if the Chief Justice of India himself is a person against whom allegation of
criminal misconduct is received, then the Government shall consult any other
Judges or Judges of the Hon’ble Supreme Court.
However, the said Judgment was dealing with Prevention of Corruption
Act, 1947 and certainly, the views would have been different in the matter of
allegation of sexual harassment at Workplace. More importantly, this was a
golden opportunity wherein broad guidelines could have been laid down by the
Hon’ble Supreme Court in tandum with Union of India so as to deal with issues
governing top Judges of the country.
CONCLUSIONS:
The allegations against the Sitting Chief Justice of India Shri Gogoi may be
true or may not be true. It is also a
fact that the allegations have created one of the most difficult situations for
Sitting Chief Justice of India Shri Gogoi of his life time. It also true that the Sitting Chief Justice
of India Shri Gogoi is entitled for his presumption innocence. However, the
manner in which the entire episode has been handled and the manner in which it
could have been handled is something which needs to be thought of. Enquiry by a
Sitting Judge/Committee of Hon’ble Supreme Court cannot be a substitute for
investigation by Police/Investigating Agency. Article 361 of the Constitution
provides immunity from criminal proceedings only in favour of Sitting President
of India or a Sitting Governor of a State and the Judgement in case of K.
Veeraswami V. Union of India & Ors., cannot be extended so as to enlarge
the scope of Article 361 and so as to include the Chief Justice of India. Further,
Vishakha guidelines read with Article 14 and Article 361 does not provide special
privileges to Chief Justice of India in such a situation. Thus, it will not be
incorrect to say that a golden opportunity has been missed and if only it was
handled more judiciously it could have made Indian judiciary a real “Dharmaraj”.
There is no doubt that a false accusation can destroy a man completely and
certainly, Parliament and Court should take note of controversy and protect Man’s
right of equity and dignity too. However, at the same time, sexual
harassment/misconduct, in any form, cannot be permitted by anybody, by anyone
including top constitutional functionaries of the State. A clear-cut message in
this regard could have been the best solution to all the allegations and which
would have only strengthened the Judiciary. As it is said, ‘Be you ever so
high, you are not above law’, should be the real guiding principle.
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