Judiciary is a glass house: Press, the spoiler

Shri Ranjan Gogoi, who has been working as the Chief Justice of India at present, was accused of molesting his female staffer and for her refusal to yield, he had used his status and influence to suppress her and took revenge upon her. It was with these allegations, she had sent a well drafted complaint to all judges of the Supreme Court. Simultaneously, she had also sent it to some web magazines.

Where men and women work together, encounter by one sex towards another would be natural. This encounter may establish a consensual relationship or create friction. It may be repelled by another silently or with wild reaction. The attraction may be as a result of various factors including the age difference, power, status and physical appearance. But, in all such cases, the initiator may be of either sex and it need not necessarily be the male. Mere encounter between the persons of opposite sex cannot be a case of sexual harassment in all instances. The bitter events that follow alone are taken as sexual harassment if the same are intended to subdue the opposite sex against his/her wishes to ones sexual pleasure.

Here, I am not concerned about the veracity of her accusation against Shri Ranjan Gogoi. He has faced it before the committee constituted by the next senior most judge of the Supreme Court. The complainant is also at full liberty to take recourse to the law against him since the incident alleged cannot be an official act but an individual one. Provisions of Section 354 and 354A of the Indian Penal Code which punishes such conduct and harassment are available in law. Section 6 of the “The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013” provides for the establishment of the ‘local complaints committee’ which consists of independent persons.

Here, I am also not concerned with the way in which Shri Ranjan Gogoi had handled it. But, I am concerned with the institutional reputation and the extent of the press freedom.

The makers of our Constitution, while drafting it had extensively, deliberated about the importance of an independent arbiter in a federal set up and provided for an institutional mechanism to achieve that purpose. They provided for pay protection and service protection to the judges. To ensure that they are not influenced by “after retirement practise of law”, in Article 124(7) and 220, they had also provided for debarring their practise after retirement. In order to prevent any interference in their independent functioning, in Article 129 and 215 they had also provided for contempt powers by designating the Supreme Court and the high ccourt as courts of record. Even in case of complaints against these judges, detailed procedures have been incorporated in the Judges (Inquiry) Act, 1968, for enquiring them.

Inspite of such protections in the Constitution of the country and in the Act and the procedures prescribed to enquire into the complaints against them, recent event in the matter of Shri Ranjan Gogoi hasexposed the hollowness of such protection measures.

A sub-junior employee of the Supreme Court lodged a complaint against Shri Ranjan Gogoi, the Chief Justice of India,  and sent it not only to the senior-most judge of the Supreme Court but also to all the judges of the Supreme Court who could not have any say in the matter. She did not wait for any response from the judges on her complaint. Simultaneously, she sent the same to number of web news magazines. In the complaint, she described herself as from conservative traditional family and stated that her husband did not like to send her to any job. In spite of this fact about her status, she did not deem it fit to conceal her identity. The reading of the complaint shows that some well experienced advocates are behind the drafting of the complaint and advising her.

In the annals of the history of our constitutional institution, we have not faced any such situation in the past. Hence, procedures were not in place to deal with any such complaints. On receiving the complaint, the Chief Justice of India requested the next senior most judge Justice S.A. Bobde, to constitute a committee in order to enquire into the allegations received. Immediately, Justice S.A.Bobde constituted a committee consisting of himself and two other judges of the Supreme Court. At this stage, she again lodged a protest as if one of the judges in that committee Justice N.V.Ramana was just like a family member and objected to his inclusion in the committee. This protest was also sent by her to the press and not in privacy.  

On knowing her objection, Justice N.V.Ramana expressed his unwillingness to be in the committee. Immediately thereafter, a new lady judge was included in the committee in his place. Thereafter, she appeared before the committee and deposed. She wanted a copy of her statements and insisted for representation through advocate. She aired her demands through the press. Later, she doubted about the impartiality of the inquiry committee and refused to participate in its proceeding. All her complaints, protests and demands were, before they reached the judges concerned, published in the press and they became headline news for the day. When an advocate alleged that he was offered huge sum for help in framing the Chief Justice of India and he appeared in the court to file his affidavit in that regard, his access to the court was also badly highlighted. Because of the wrath of the press against its head, the national judiciary became dumb and got perplexed and paralysed because of such unprecedented situation.

In respect of any complaint, whether it be in service or in crime, there is no presumption of its truth at the initial stage. But, when it is made by a woman against the person in power, the public opinion is created in favour of the woman. The person against whom it is made is punished even at the stage of lodging of complaint itself. On such publicity, the enquiry whatever be the form, becomes meaningless. Even if the enquiry reveals that the allegations in the complaint was totally false, most of the people refuse to believe the falsity and they begin to believe that the person in power used his authority against the complainant who is weak in her status and procured report in his favour.

Now, because of the extensive publicity to the contents of her complaint and also to the subsequent events, utmost damage has been done not only to the institutional reputation but also to its integrity. The judges are, by their status and conventions, prevented from meeting the press. They air their views only when sitting in the benches. Even such opportunities are only limited.

When such an accusation is made by an ex-staffer in open and his whole reputation is fully damaged in a single night, the Chief Justice of India had constituted a bench consisting of himself and two other judges which had just issued notice. No other order was passed. Immediately a new bench heard the matter and it is pending now.

When a judge is assaulted in the open court, abused in the open court, even when he is attempted to be prejudiced, he can suo motu take cognizance of the offensive conduct and act against the contemnor and punish him. On the ground that he is the aggrieved, he need not refer the matter to another judge. This power is vested in the Constitutional Courts by virtue of Articles 129 and 215. Even section 186 of the Indian Penal Code authorises the magistrate to punish any person found unruly in his court or those who obstruct him from performing his duty. The principle “no man can be a judge in his own cause” is not applicable to such situation. Person punished cannot complain that principle of natural justice was violated.

But, when a complaint is of sexual harassment that too made by a dismissed lowest level staffer, mere sitting in the bench to air his views and recusing from the subsequent proceeding is taken as violative of the principle of natural justice. This allegation is also published only in the press. Many so called jurists invoke this principle and forget the defenceless situation of Shri Ranjan Gogoi because of the code of conduct applicable to his status as member of the judiciary. Shri Ranjan Gogoi - a man of “no influence” and who is not a go getter with the bar or the public and a workaholic -all types of principles are invoked to malign him. There is no institutional mechanism in place to save him from such unwanted onslaught. He has to suffer the ignominy silently.

The ability of the judges to get compliance with their orders rests primarily with the reputation enjoyed by them. Now, on a complaint of an ex-staffer, at the threshold itself, his reputation has been completely and irreversibly damaged. Is it to vindicate the grievance of the complainant or for some other exterior purpose? God only knows!

Section 16 of the “The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013” prohibits the disclosure of the contents of the complaint, identity of the complainant, details of the inquiry, the recommendations on such inquiry and action taken on such recommendation either to the public, press or media. It was intended not only to protect the honour of the complainant but also of the complained. Both the complainant, allegedly from a conservative family and the media have thrown prohibition into the dustbin.

In the preset case, press and media have played spoilsport by an irresponsible publicity. Not only the original publication of the defamatory allegation is an offence, but every repetition of it is equally an offence.

Shri Ranjan Gogoi has hardly five months to retire. But, the institution would be there as along as democracy survives in our country. Shri Ranjan Gogoi would be succeeded by someone regularly. The judges are to take some decisions in exercise of their powers which may not be to the liking of others. By virtue of their office, they cannot please all the parties before them. The judiciary with tarnished image would take long time to retrieve its old glory as an impartial arbiter.

 Press freedom does not extend to publish anything and everything at any stage by ignoring the larger effect of such publication. Press freedom is the product of the democracy. It has the obligation to protect the reputation of the other constituents of democracy. Democracy cannot survive only with the press.  

Institution of judiciary is a glass house. The absence of institutional mechanism to immediately prevent such damage even before the complaints are duly enquired would damage the  democratic institution by damaging the credibility of the persons manning it.

Let God save the judges.

(The writer is senior advocate, Supreme Court of India)