The need to ensure justice without fear or favour | Hindustan Times

Op-Eds by Public Law · April 26, 2019
Author(s): Arghya Sengupta

Growing up in a middle-class neighbourhood in Kolkata in the 1980s, a para dadu (an elderly man in the neighbourhood) used to remark every so often that the Chief Justice of India (CJI) was second only to God when it came to probity. A generation on, and as unseemly allegations cloud the office of the CJI for a second time in two years across two Chief Justices, this cherished belief appears to be unravelling.

The sexual misconduct allegations against Chief Justice Ranjan Gogoi are unprecedented. If the allegations are true, the actions complained of are shocking and unquestioningly constitute conduct unbecoming of a judge. If false, they are a slanderous expression of vendetta politics. Either way, there is so much detail provided in the affidavit sent by the staffer concerned to the judges of the Supreme Court that an impartial inquiry can quickly ascertain the credibility of the statements and the bona fides of its maker.

This is why the setting up of an inquiry committee of the Supreme Court led by Justice SA Bobde and including Justice Indira Banerjee is both timely and appropriate. In the same breath, the establishment of a separate inquiry headed by a retired judge, Justice AK Patnaik, to look into allegations of a conspiracy against the CJI is befuddling. The possibility of a conspiracy can only arise pursuant to the first committee finding the sexual misconduct allegations to be vexatious. Without waiting for such a determination, to order a judicial probe appears premature.

At this time, with unverified rumours impinging the credibility of the staffer concerned on the one hand and the fairness of the judicial process on the other, institutional credibility can only be restored by a free, fair and impartial inquiry to get to the bottom of the allegations made by the staffer. Such an inquiry, according to the Restatement of Values of Judicial Life, accepted by the full court of the Supreme Court, can only be done by an in-house committee of judges.

Many commentators have pointed out that this in-house committee does not strictly contemplate proceedings against the Chief Justice of India. That is true. Equally true is the fact that the Vishakha guidelines for protection of women from sexual harassment at workplaces, laid down by the Supreme Court itself, cannot be used if the aggrieved person is a court employee. These are serious deficiencies in the internal rules of the Supreme Court that require calm introspection by the judges. If the Supreme Court can lay down one law for the country and another one for itself, there could scarcely be a worse advertisement for the rule of law.

But this is not the time to offer knee-jerk reactions to undo past follies. Correcting them, while critical, is time-consuming and requires careful deliberation. At this time, of prime importance is to determine the veracity of the allegations made. Only a fair and expeditious inquiry can achieve that.

Several persons, including the complainant, have voiced misgivings about the fairness of the inquiry headed by Justice Bobde: it comprises judges alone; is headed by a man; and its report will have to be submitted to the full Court which, according to newspaper reports, has already rallied behind the Chief Justice.

When the actions of powerful men are subject to inquiry, such misgivings are natural. But consider for a moment the extraordinary nature of the allegation against perhaps the most respected holder of a public office in India. The reverence with which the office of the CJI is held can tilt the scales before any inquiry panel. It is precisely in such extraordinary situations that applying the in-house committee procedure, applicable to all judges of the Supreme Court and High Courts, its faults notwithstanding, rather than inventing an ad hoc procedure is important. If the basic integrity of sitting judges of the Supreme Court to undertake and decide on a fair inquiry into the purported misconduct of one of their own cannot be trusted, one needs to ask more serious questions of the constitutional role of the Supreme Court itself.

It ultimately falls on the Justice Bobde-led inquiry committee to fairly determine whether the allegation that the CJI sexually harassed his staffer has merit. In its process, as much as its result, rests not only the institutional credibility of the judiciary to do justice without fear or favour but also the unshakeable belief of many like my para dadu who still view an allegation against a judge as blasphemous. Its ramifications, one way or another, will be felt for a long time to come.

Arghya Sengupta is research director, Vidhi Centre for Legal Policy.

The views expressed are personal.

Originally published –

About Arghya Sengupta:

Arghya is the Founder and Research Director at Vidhi. His areas of specialisation are constitutional law and regulation of the digital economy. He has served on a number of government committees including most recently the Justice B.N. Srikrishna-led committee of experts on a data protection framework for India. Arghya has a number of academic publications on the Supreme Court, Parliament, fundamental rights in leading law journals such as Law Quarterly Review and Public Law. He is also a columnist at The Telegraph, The Hindustan Times and The Times of India. He has most recently authored a book "Independence and Accountability of the Indian Higher Judiciary" (Cambridge, 2019) which builds on his doctoral work at Oxford University. Prior to founding Vidhi, he was at Oxford as a Lecturer in Administrative Law at Pembroke College. Link to full bio