Analysis: A Look At Both Sides of the CJI Harassment Case

Controversies don’t seem to end since the Supreme Court in-house inquiry panel gave a clean chit to Chief Justice of India Ranjan Gogoi in the sexual harassment case on Monday. The protests that started on Tuesday in Delhi and spread across the country by women activists have resulted in repeated detainments, at least in the national capital. The Supreme Court notices being sent to lawyers and BCI appeal letter urging members of the fraternity to support the SC are giving several layers to the case—lawyers are split on their views.

In a statement on Wednesday, Lawyer Indira Jaising alleged “victimisation” for supporting the complainant in the case. This was after Supreme Court issued a notice in a petition filed by ‘Lawyers Voice’ seeking criminal prosecution of lawyers Jaising and Anand Grover and their NGO Lawyers Collective in a foreign funding case.

‘The SC Followed Similar Pattern As Other Institutions By “Victimising” Supporters’

Speaking on the developments of the matter, autonomous women’s rights activist Chayanika Shah said, “It is very frustrating and sad that this pattern gets repeated at every level whether it is in the corporate where if a person has accused the top-most authority then every person who supports the complainant is victimised. One really expects the Supreme Court to not do the same because we are not opining on whether the complaint is right or wrong but every step taken by the Supreme Court is almost exactly like any other institution.

We all look up to the top-most court to lay down precedence and that is why the anger is a lot more. It’s not the first time we are seeing this pattern at a workplace but we hoped that the Supreme Court will show us a different way of dealing with complaints but sadly they have just replicated the pattern.”

Due Process Gone Wrong

SC Advocate Shobha also shared her view on the due process and said, “The institution has badly failed in adopting the due process. The complainant withdrew from the committee by specifically quoting the reasons. We, lawyers, feel that when the complainant withdrew from the proceedings then there had to be a way out. This is a one-off case where the court may not have a proper procedure laid down to be followed but what is being followed currently doesn’t seem to be the ideal procedure. There is nothing left for her to choose from, it is like either you accept the procedure that we are conducting or else forget it. We feel that the fact-finding process adopted is not very well executed.”

Different Sides On Constitutional Immunity

The other side of the narrative built in favour of the due process speaks of constitutional immunity provided to such  positions of power. Advocate Aishwarya Bhati explained, “There are a lot of fundamental fallacies doing the rounds in the corridors. There is immunity for the core category of people in our constitution available to the President, Governors of the states, judges of the Supreme Court and judges of the High Courts. The reason for it is not to protect individual persons but to make sure that the important constitutional parameters like independence of the judiciary, of rule of law and of separation of powers are protected.”

“We cannot lodge FIRs against these categories of people and expect that it will be investigated by police and follow the normal procedures as the constitution does not mandate it. Unfortunately, in our vigour to understand equality to mean everything, we have to understand that equality means equal treatment of equals. This is the minimum protection allowed to them and if this is not allowed to them then they won’t be able to do their jobs properly,” she added.

ALSO READ: CJI Ranjan Gogoi Clean Chit: Where Are All the Angry Men?

Shobha, on the other hand, said that constitutional immunity maybe available for the purpose of prosecution in a criminal procedure but nobody stopped the institution to lay down a procedure for such cases in case there is no procedure available. “If we don’t have a sacrosanct procedure right now then we must have one. If we say we have a procedure and we are following it then it doesn’t look like a sacrosanct one. Even if they have immunity, nobody is coming in the way of their immunity. Right now, the issue is whether the complainant is satisfied with the fact-finding procedure? It is understood that she cannot be given permission to cross-examine the CJI because of the immunity. Minus that, can the rest of the procedure be followed?”

She further asked, “How can the report of the proceedings be denied to her?”

‘No Attacks On The Institution’

On the same day, Bar Council of India (BCI) also released an appeal letter to all the members of the judiciary urging them to support the judiciary in “maintaining the dignity and sanctity of the judiciary” as it has been allegedly attacked by the complainant who accused CJI Gogoi of sexual harassment.

Shah opined that the BCI members releasing this statement don’t surprise her as much as the actions of the CJI and other senior judges. “There is a lot of dismay and disappointment with the senior authority.”

The argument around this case bringing dishonour to the dignity and the sanctity of the institution is “because they are equating the self with the chair”, said Shah. “We expect everybody along with the CJI to follow the rule of the law. Every action taken by the Supreme Court since April 20 is replicating an action of somebody who is responding to a sexual harassment charge without reflecting on their own actions. We are not attacking or raising questions but wanting the SC to function in a manner that is befitting the court. If we attack the SC then where will we go?” she added.

Shobha also said that nobody is losing faith in the institution. “We are only saying that this particular matter has not been handled in a proper manner.”

“I wonder on what basis the BCI commented about ‘fake cases’. We all have her affidavit in public glare from April 19 and the notices issued by Secretary General (SG). Should we believe that this case is false simply because the BCI says so or the SG issued notice that the allegations have “no substance” or should there be fact-finding inquiry? BCI do not have the report in their hands, if they have it then they haven’t disclosed it, then on what basis they say that this is a false case or that there is a practice of false cases, which is untrue,” she added.

“If we don’t have a sacrosanct procedure right now then we must have one. If we say we have a procedure and we are following it then it doesn’t look like a sacrosanct one. Even if they have immunity, nobody is coming in the way of their immunity. Right now, the issue is whether the complainant is satisfied with the fact-finding procedure?

‘Detaining Of Protesters Counts As Murkier Approach To Case’

Women activists across the country are protesting against the due process taken by the in-house panel to announce judgment since Tuesday. The protests in Delhi proved to be short-lived as women protesters who demonstrated in peaceful protests were arrested and detained for close to four hours for protesting against the case within 10-15 minutes of the protests. “These day-to-day developments in such uncertain manner are making things murkier. The more we are doing to salvage the image, we are damaging it more. Now the main case is left far behind, the major concern is the procedure followed. Nobody knows whether the allegations have substance or not,” added Shobha.

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