In the constant tussle between the executive and the judiciary, we tend to overlook the status of the judiciary by itself. This approach overlooks many legitimate criticisms of judicial activities, particularly on its internal functioning.
Presently, the court’s private function is eclipsed by its public function. Many attempts have been made to lift the veil on its internal functioning but have failed, ostensibly, on account of safeguarding judicial independence. There is no doubt that our democracy vests immense faith in the Supreme Court as the “guardian of the constitution”.
However, it is this very critical reliance on the Supreme Court that necessitates an examination of the internal proceedings in the sexual harassment case against the Chief Justice of India.
To begin with, let’s examine the peculiar nature of the Supreme Court’s Gender Sensitisation and Internal Complaints Committee (GSICC). As per its regulations, which omits using the term “workplace”, the GSICC cannot address complaints made by the court’s female employees. Thus the court seems to fulfil its legal obligation under Vishaka guidelines but ignores its spirit.
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Instead, female employees facing sexual harassment can request the CJI to invoke the “In-House Procedure”. This was a general procedure that was formulated in the Ravichandran Iyer case in 1999 as a self-regulatory method to address any “bad behaviour” by sitting judges. The essential idea being to avoid negative publicity, and hence, the report cannot be released to the public. The In-House committee headed by Justice Bobde has been constituted, by the CJI, under this mechanism to inquire into the sexual harassment complaint against the CJI.
Initially, the committee included Justice Ramana. He had to recuse himself, after the complainant lodged an objection citing his proximity to the CJI, after which Justice Indu Malhotra replaced him. As this was not a committee constituted under the POSH Act or the Vishaka guidelines, it was not required to adhere to its rules. Hence the investigating committee was not headed by a woman, did not have an external member and originally had more than half of its strength to be men.
The committee also is free to devise its own procedure which must follow the “principles of natural justice”. Perhaps this is where the court derives its authority to deny the complainant her right to legal representation. It may be argued that legal representation is not an absolute right and can be excluded in certain cases.
However, ensuring a fair trial necessitates that the complainant does not feel victimised as per the Vishaka guidelines. Hence it should have taken into account the multiple power hierarchies that existed so that the complainant did not feel intimidated.
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The complainant’s withdrawal in light of these circumstances is not surprising, but what is surprising is that the court chose to pay no heed to this and proceeded ex-parte. Further, as noted earlier, the committee need not reveal the report and hence it denies the complainant a reasoned decision.
B.R Ambedkar. Credit: Wikimedia Commons
By subjecting cases of workplace sexual harassment to the arbitrary nature of in-house procedures, the court has failed the idea of gender justice encapsulated by it in innumerable cases. The procedure established by the lords here is antithetical to the notion of due process and justice.
To quote Ambedkar’s speech in the Constituent Assembly, “it is perfectly possible to pervert the Constitution without changing its form by merely changing the form of the administration…”. In this speech, Ambedkar was defending the inclusion of administrative details in the constitution to ensure that the constitutional spirit remained intact.
He argued that the mode of administration has an intrinsic connection to constitutionality. His anxiety over the fragility of democratic institutions is grounded in the belief that “constitutional morality is not a natural sentiment” and needs to be cultivated in society. Ambedkar’s concern is precisely this: that state institutions that have not cultivated constitutional morality can subvert the spirit of the constitution by changing the procedure of administration.
The judiciary is not democratic in terms of appointments, accountability or transparency. It is, in fact, democratic due to its role as the conscience keepers of the constitution. In this role, it has indoctrinated the concept of the basic structure as the “spirit of the constitution” for the Indian legislature and executive.
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Unfortunately, the judiciary’s authoritarian functioning indicates that it has not indoctrinated constitutional morality within its own structure. The conclusion derived from this case is not simply a matter of “justice should not only be done but seen to be done” anymore. The precedent that this action sets will gravely impact the lower courts approach to sexual harassment complaints by their female employees.
The Supreme Court’s approach to gender justice is obscured by its overzealous attempt to protect its integrity. The fact is that the court’s dignity will not be dented in the eyes of people by a case of sexual harassment against the CJI. However, the court’s response to the case has dented its perceptible dignity.
By arguing in favour of its own victimisation, in order to drown due process, the judiciary has effectively undermined its own authority in Indian democracy. Theoretically, it is in contempt of itself and the question remains – who will hold it accountable for its contempt?
Megha Katheria has graduated from NALSAR University of Law and is currently pursuing her post-graduation from Ambedkar University.