Trial By Fire

In my 15-year career in Courts, I have realized that great patience and maturity is expected from those on the Bench. In times of crisis, the leader has to be calm. Kipling was perhaps referring to an ideal judge in his poem If when he wrote:

If you can keep your head when all about you
are losing theirs and blaming it on you
If you can trust yourself when all men doubt you,
but make allowance for their doubting too”

My former Chamber Senior, the Late Mr. Goolam Vahanvati, Former Attorney-General of India, often recounted his favourite quip:

“What’s the difference between God and a Supreme Court judge?”
“I don’t know” I would say.
“God doesn’t think he is a Supreme Court Judge.”

Everyone who heard this and practiced at the Supreme Court could relate to this.

The power of discretion cannot be carried so far at all times when one is a Supreme Court Judge. While sitting on the Bench, they can choose to dismiss or issue notice in a Petition for Special Leave (SLP) without assigning reasons. When one does not justify the power to dismiss with a single-word order, shocking as it is to the average person who approaches the Supreme Court for relief after years of litigation, one does not expect defence from the bench.

Chief Justice Gogoi, we think this was an occasion to have a press conference to defend yourself as an individual.

Justice Bobde would be Chief Justice of India later this year. Tradition says Chief Justice Gogoi would recommend his successor’s name to be Chief Justice. We know who the Chief Justices would be for the next few years. Late Vahanvati would study the list often and expect all of us juniors to know the date of retirements of all judges too. This is helpful trivia. Although it would seem if what Utsav Bains is stating now is true, there is little trivia but a deeper racket.

Are we saying there is no procedure when it comes to the Chief Justice? This is a test of fire. Do not be afraid of getting scalded.

Much was also made of the well-drafted 28 page affidavit sent to the 22 judges. This is why one has legal assistance, to crisply enunciate facts and put across grievances and seek redress in the most effective way. A responsible magazine like The Caravan did its own diligence before running the story as did the others who carried the story.

The Courts exist to fill in the gaps in the law made by the legislature, to interpret it in its spirit. First principles determine everything. If they forgot to envisage a situation where the CJI could have allegations of sexual harassment flung at him, this was the best opportunity to address the lacuna with sagacious wisdom instead of panic.

Everyone is watching the ‘in-house’ committee, the law officers and senior lawyers protect the institution, but you will be doing it great injustice if you rush to court to express solidarity and brandish charges as false. These responsible senior lawyers holding high office should have instead said: Please set the law in motion, and let there be swift punishment against the guilty.

A few have openly taken a stand on the issue.

“It’s a very sad state of affairs irrespective of the ultimate results. The institutional integrity has taken a big blow”, Justice Hegde, former Solicitor General of India told PTI.

“These two inquiries…irrespective of the ultimate result…damages the reputation of the institution because there are groups which have already come forward either in support or against the Justice and the Institution as such…lot of allegations have been made that there are groups which are fixing the benches to suit the client’s requirements…these are very serious allegations which are bound to damage the institutional integrity. According to me, it will take a long time for the institution to come out of these problems.” he said.

After the dust had settled, associations of practicing lawyers of the Supreme Court, particularly the Supreme Court Advocates On Record Association passed a resolution expressing deep reservation against the “procedural impropriety shown by Hon’ble Justice Ranjan Gogoi in the suo moto proceedings held on April 20 in the issue relating to allegations of sexual harassment against Hon’ble Justice Ranjan Gogoi, by an ex-Supreme Court employee. The allegation of the ex-employee of the Supreme Court has to be dealt with as per the established procedure of law and law must be applied in each and every case uniformly” said the resolution of the body of lawyers entitled to file cases at the Supreme Court. This was followed by a similar resolution issued by the Supreme Court Bar Association.

The idea is not merely to have the three women judges who are junior to the Chief Justice to investigate allegations made against him. It is a wake-up call; for the law must be laid down to envisage a procedure for even the Chief Justice. A procedure cannot be devised when allegations surface, because then you have an anomalous situation of a Chief Justice defending himself from the Bench and the order sheet conveniently not carrying his name.

We do not care in whose car Utsav Bains—an unknown name in legal circles till last week—entered the Supreme Court premises. Bains has made startling claims and filed affidavits before the Bench. The threat to the institution is not the affidavit of the lady staffer and her claims. The institution has to be protected from those who claim to have access to it.

The Chief Justice was correct when he said in the ‘Matter of Great Public Importance’ that the ‘Judiciary of the country is under serious threat.’ Let the two inquiries, on the allegations made by Bains and the sexual harassment allegations, identify the respective culprits.

At the time of writing this, a Division Bench of Chief Justice Rajendra Menon and Justice Anup J Bhambhani of the Delhi High Court refused to entertain a petition by Anti-Corruption Council of India seeking to restrict the media from reporting the sexual harassment allegations.

The court asked the media to show restraint in covering the case to avoid undermining the reputation and independence of the judiciary though it decided not to issue a gag order.

“Go to the Supreme Court…There is an April 20 Supreme Court order… “, Chief Justice Menon is reported to have said. After the Petitioner further insisted on being heard, Chief Justice of the Delhi High Court said “We will not interfere…everything is with the Supreme Court. Go to the Supreme Court.”

That’s where we are My Lords and Ladies.

Views expressed here are of the Author’s

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