Showing posts with label justice. Show all posts
Showing posts with label justice. Show all posts
Saturday 27 January 2024
Saturday 16 September 2023
Sunday 10 September 2023
A level Economics: How Chicago school economists reshaped American justice
From The Economist
In recent years the antitrust division of America’s Department of Justice has gone on a crusade against corporate mergers, filing a record number of complaints in an attempt to stop the biggest businesses from getting even bigger. With few exceptions, these efforts have been thwarted by the courts. That it is so hard to get a judge to intervene in business reflects the work of an institution known more for its free-market influence on economics than the law: the University of Chicago.
Fifty years ago this autumn Richard Posner, a federal judge and Chicago scholar, published his “Economic Analysis of Law”. Now in its 9th edition, the book set off an avalanche of ideas from Chicago school economists, including Gary Becker, Ronald Coase and Milton Friedman, which passed into the folios of America’s judges and lawyers. The “law-and-economics” movement made the courts more reasoned and rigorous. It also changed the verdicts judges handed out. Research has found that those exposed to its ideas are more opposed to regulators and less likely to enforce antitrust laws, and tend to impose prison terms more often and for longer.
Links between economics and the law have long been studied. In “Leviathan”, published in 1651, Thomas Hobbes wrote that secure property rights, which are needed for a system of economic exchange, are a legal fiction that emerged only with the modern state. By the late 19th century, legal fields that overlapped with economics, such as matters of taxation, were being analysed by economists.
With the arrival of the law-and-economics movement, every legal question was suddenly addressed in the context of the incentives of actors and the changes these produced. In “Crime and punishment: an economic approach” (1968), Becker argued that, rather than being a balancing-act between punishment and the opportunity for reform, sentences act mainly as a deterrent: the literal “price of crime”. Harsh sentences, he argued, reduce criminal activity in much the same way as high prices cut demand. With the caveat that a greater chance of arrest is a better deterrent than longer prison sentences, Becker’s theorising has since been borne out by decades of empirical evidence.
Too steep?
In the movement’s early days, “the legal academy paid little attention to our work”, recalls Guido Calabresi, a former dean of Yale Law School and another of the field’s founding fathers. Two things changed this. The first was Mr Posner’s bestselling textbook, in which he wrote that “it may be possible to deduce the basic formal characteristics of law itself from economic theory.” Mr Posner was a jurist, who wrote in a language familiar to other jurists. Yet he was also steeped in the economic insights of the Chicago school. His book successfully thrust the law-and-economics movement into the legal mainstream.
The second factor was a two-week programme called the Manne Economics Institute for Federal Judges, which ran from 1976 until 1998. This was funded by businesses and conservative foundations, and involved an all-expenses-paid stay at a beachside hotel in Miami. It was no holiday, however, even if those who went nicknamed the conference “Pareto in the Palms”. The curriculum was extremely demanding, taught by economists including Friedman and Paul Samuelson, both of whom had won Nobel prizes.
By the early 1990s nearly half the federal judiciary had spent a few weeks in Miami. Those who attended included two future justices on the Supreme Court: Clarence Thomas (an arch conservative) and Ruth Bader Ginsburg (his liberal counterpart). Ginsburg would later surprise colleagues by voting with the conservative majority on antitrust cases, applying the so-called “consumer welfare standard” championed by the Manne programme. This states that a corporate merger is anticompetitive only if it raises the price or reduces the quality of goods or services. Ginsburg wrote that the instruction she received in Miami “was far more intense than the Florida sun”.
In a paper under review by the Quarterly Journal of Economics, Elliot Ash of eth Zurich, Daniel Chen of Princeton University and Suresh Naidu of Columbia University treat the Manne programme as a natural experiment, comparing the decisions of every alumnus before and after their attendance at the conference. They then use an artificial-intelligence approach called “word embedding” to assess the language in judges’ opinions in more than a million circuit- and district- court cases.
The researchers find that federal judges were more likely to use terms such as “efficiency” and “market”, and less likely to use those such as “discharged” and “revoke”, after time spent in Miami. Manne alumni took what the authors characterised as the “conservative” stance on antitrust and other economic cases 30% more often in the years after attending. They also imposed prison sentences 5% more frequently and of 25% greater length. The effect became stronger still after 2005, when a Supreme Court decision gave federal judges greater discretion over sentencing.
That researchers are turning the unforgiving lens of economic analysis on law and economics itself is a promising trend. The dismal science has come a long way since the heyday of the Chicago school. Thanks in large part to the empiricism of behavioural economics, it is less wedded to abstractions like the perfectly rational actor. This has softened some of the Chicago school’s harsher edges. But it will nevertheless take time for judges to modify their approach. As Mr Ash notes: “The Chicago school economists may all be retired or dead, but Manne alumni continue to be active members of the judiciary.” In courtrooms across America, Mr Posner’s influence will live on for decades to come.
Thursday 10 August 2023
'Karma is a Bitch': Is It?
Karma's Complex Dance: A Critical Examination of the Concept's Moral Implications
The phrase "Karma is a bitch" has become a ubiquitous expression in modern language, reflecting the notion that negative actions will inevitably result in negative consequences. The concept of karma originates from Hindu and Buddhist traditions and emphasizes the idea that one's actions will determine their future experiences. While the phrase might convey a sense of poetic justice, a comprehensive analysis reveals that the concept of karma is more nuanced and complex, encompassing both positive and negative dimensions. This essay aims to critically evaluate the moral implications of the concept of karma, drawing on a variety of examples from history, philosophy, and popular culture.
Ethical Justification and Cosmic Justice: Karma is often portrayed as a form of cosmic justice, where good deeds lead to positive outcomes and bad deeds to negative ones. While this interpretation might provide a sense of moral reassurance, it raises ethical questions. The inherent belief that every individual's circumstances are the direct result of their actions can lead to victim-blaming. For instance, attributing poverty or illness solely to past actions overlooks systemic factors and external influences that shape a person's life.
Example: The caste system in India historically justified social hierarchies based on karma, leading to the oppression of lower castes and reinforcing inequality.
Causality and Complexity: The linear relationship between actions and consequences, as depicted by the phrase, oversimplifies the intricate web of cause-and-effect relationships. Actions often have far-reaching and unpredictable consequences, involving multiple agents and factors. The concept of karma tends to ignore this complexity and overemphasizes individual agency.
Example: The butterfly effect, a concept from chaos theory, illustrates how small actions can lead to significant and unforeseeable outcomes, challenging the deterministic view of karma.
Moral Accountability and Personal Growth: The concept of karma raises the question of whether the fear of negative consequences or the promise of rewards is the primary motivation behind moral behavior. An approach that focuses solely on retribution overlooks the potential for personal growth, empathy, and genuine concern for others.
Example: In Viktor Frankl's "Man's Search for Meaning," he emphasizes the importance of finding meaning and purpose in suffering, suggesting that growth can emerge from even the most challenging circumstances.
Interpretations and Cultural Variation: Different cultures and philosophical schools interpret karma in diverse ways. Some traditions view karma as a way to break free from the cycle of suffering, while others emphasize fulfilling one's duty regardless of the outcomes. The phrase "Karma is a bitch" disregards this richness of interpretation.
Example: Jainism emphasizes minimizing harm to all living beings, indicating that karma is not just about individual consequences but also collective well-being.
Modern Relevance and Popular Culture: The phrase "Karma is a bitch" has found its place in modern vernacular, often used humorously or to express satisfaction at seeing someone receive their comeuppance. This highlights the enduring appeal of karma's basic principle: actions have consequences.
Example: In the TV show "Breaking Bad," the character Walter White's morally reprehensible actions eventually catch up with him, illustrating a narrative application of the concept of karma.
In conclusion, the phrase "Karma is a bitch" encapsulates only a fraction of the complexity inherent in the concept of karma. While the idea of actions leading to consequences resonates with basic notions of justice, it oversimplifies the intricate dynamics of cause and effect, ethical accountability, and personal growth. The moral implications of karma are diverse, reflecting a rich cultural tapestry that extends beyond simple notions of reward and punishment. By critically examining the concept, we can gain a deeper understanding of its potential pitfalls and opportunities for cultivating a more compassionate and nuanced worldview.
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Rethinking "Karma is a Bitch": A Critical Analysis of Oversimplification and Negative Connotations
The phrase "Karma is a bitch" has gained popularity in contemporary discourse as a way to express satisfaction at the perceived downfall of individuals who have engaged in negative behavior. However, this phrase oversimplifies the complex concept of karma and promotes a skewed perspective on the principles of cause and effect, personal growth, and moral accountability. This essay aims to critically repudiate the phrase by examining its limitations and highlighting the need for a more nuanced understanding of karma, using examples from philosophy, psychology, and real-world scenarios.
Oversimplification of Cause and Effect: The phrase reduces the intricate web of cause-and-effect relationships to a simplistic equation of "bad action equals bad consequence." This disregards the intricate factors and contextual nuances that contribute to outcomes, making it an inadequate representation of reality.
Example: In complex geopolitical conflicts, attributing the suffering of entire populations to their past actions ignores the historical, economic, and political complexities involved.
Negative Connotations and Lack of Empathy: The phrase fosters a sense of satisfaction in witnessing the suffering of others, perpetuating a culture of negativity and judgment. This lack of empathy contradicts the essence of many ethical and spiritual traditions, which emphasize understanding and compassion.
Example: Instead of rejoicing in another's misfortune, embracing the principle of forgiveness and offering support can lead to personal growth and positive social interactions.
Discouraging Redemption and Growth: Branding individuals as victims of their own actions overlooks the potential for growth and change. The phrase implies that once someone engages in negative behavior, their fate is sealed, discouraging personal transformation and second chances.
Example: The story of Nelson Mandela demonstrates the power of redemption and forgiveness. After serving 27 years in prison, he emerged as a symbol of reconciliation, transcending the cycle of vengeance.
Cultural and Philosophical Diversity: The concept of karma varies across different cultural and philosophical contexts. Reducing it to a negative sentiment ignores the positive dimensions of karma, such as the idea of accumulating positive actions for a better future.
Example: In Buddhism, karma is not about punishment but about creating positive intentions and actions to break free from the cycle of suffering.
Promotion of Fatalism and Passivity: The phrase "Karma is a bitch" can inadvertently endorse a fatalistic attitude, implying that individuals have no control over their lives. This can discourage proactive efforts and a sense of responsibility for shaping one's destiny.
Example: The growth mindset theory emphasizes the belief that effort and learning can lead to personal development, countering the notion of predestined outcomes.
The phrase "Karma is a bitch" encapsulates a simplified and often negative view of the complex concept of karma. Its connotations of satisfaction in others' suffering, lack of empathy, and discouragement of personal growth undermine the true potential of human agency and transformation. By examining the limitations of this phrase and considering the rich diversity of interpretations of karma, we can foster a more compassionate, empathetic, and holistic understanding of cause and effect in our lives. It is crucial to move beyond the allure of quick judgments and instead embrace the complexities that define human experiences.
Wednesday 28 June 2023
Friday 7 April 2023
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Wednesday 29 December 2021
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Wednesday 24 February 2021
Sunday 19 July 2020
India: Where does one turn when law, political parties and the state turn their back on justice?
P B Mehta in The Indian Express
Anand Teltumbde, one of India’s important and courageous thinkers, just turned 70 in prison. He, along with Sudha Bharadwaj and others, is being held in the Bhima Koregaon case. They are being repeatedly denied bail. Varavara Rao, poet and Maoist intellectual, contracted COVID and has been subject to degrading and humiliating conditions at the age of 80. The overwhelming power that the Unlawful Activities (Prevention) Act gives to the state, the sheer impunity with which government can treat this group of accused, the Kafkaesque role of the judiciary in denying bail and making procedural safeguards ineffective, and the deafening political silence on their detention, all warrant deeper reflection. The accused in the Bhima Koregaon case are not the first to be victimised in this way; and they will not be the last. The UAPA is being used to target protest from Assam to Delhi.
Anand Teltumbde’s work, particularly “Republic of Caste”, presciently forecast his own condition. He, like the others, has drawn support from the usual petition-writing crowd of intellectuals. But his case provides a disturbing window on the political loneliness of a genuine intellectual in Indian conditions.
Here is a well-known Dalit intellectual being put in prison and yet no serious political protest, even from Dalit politicians. Teltumbde had, in another context written, “When Sudhir Dhawale, a Dalit activist, was arrested in 2011 on the trumped up charge of being a Naxalite and incarcerated for nearly four years, there was hardly any protest from the community.” This phenomenon of figures like Teltumbde not drawing broader political support requires some reflection. Teltumbde himself, in part, attributed this to divisions amongst Dalits, and their greater faith in the state. But his work points towards a subtler reason.
For all of India’s handwringing, that we need to escape identity politics, there is a great antipathy to anyone who tries to escape it. Teltumbde is one of those rare figures who argued that the Left and liberals failed to take caste seriously, and caste mobilisation failed to take class and economics seriously. But the result is a kind of suspension in between two constructions: Most of society does not get outraged because he is often reduced to being a Dalit intellectual; Dalits don’t get outraged because he becomes a “Left” intellectual. The blunt truth is that, if we leave the rarefied world of petitions, the only modality of protest that is politically effective is the one that has the imprimatur of community mobilisation behind it. If you can show a community identity is affected, all hell will break loose; without it, there is no political protest.
Teltumbde was also prescient about the way the term “Left” is used in India. Teltumbde himself is closer to the Left in his economic imagination. But the rhetorical function of the “Left” in India is not to describe the contest over the free market versus the state. The rhetorical function of the “Left” is to describe any ideological or political current that, while recognising the importance of identity, wants to escape its compulsory or simplistic character; so any broadly liberal position or a position that distances itself from “my community right or wrong” also becomes Left. For Hindutva, anyone who resists or transcends the narcissisms of collective identity becomes “Left.” But the same is increasingly true of other identities — Maratha, Jat, Dalit, Rajput. “Left” is anyone who complicates identity claims. That, rather than secular versus communal, is the big chasm in Indian politics. But the result is that if you are labelled “Left” in this way, you will have no political protection.
The charge of Maoism is the hyper version of this “Left” in the context of Adivasi mobilisation. Which is why the entire political class, and so much of India’s discursive space, keeps invoking the “Left” spectre. And Teltumbde was insightful in thinking that once you had been labelled Left in India, it was easy to secure a diminution in your legal and cultural standing. Even the Courts will turn off their thinking cap. It is in this that the genuine intellectual enterprise is a lonely one, whose disastrous political consequences Teltumbde is facing.
The Bhima Koregaon cases also throw a spotlight on so many state institutions. The UAPA, and its ubiquitous use is a travesty in a liberal democracy. The lawyer, Abhinav Sekhri, has, in a recent article (“How the UAPA is perverting the Idea of Justice”, Article14.com) pointed out two basic issues with the law. The law is designed in a way that it makes the question of innocence or guilt almost irrelevant. It can, in effect, inflict punishment without guilt. The idea that people like Teltumbde or the exemplary Bharadwaj cannot even get bail underscores this point. And second, the safeguards of our criminal justice process work unevenly at the best of times. But in the case of the UAPA, the courts have often, practically, suspended serious scrutiny of the state. What legitimises this conduct of the court is two things: The broader ideological construction of the “Left” as an existential threat. And the impatience of society with procedural safeguards. The UAPA has in some senses become the judicial version of the encounter — where the suspension of the normal meaning of the rule of law is itself seen as a kind of justice.
The state has been going after Varavara Rao for his entire life. He is a complicated figure. He is an extraordinarily powerful poet who made visible the exploitative skeins of Indian society; his poetry, even in translation, cannot fail to move you out of a complacent slumber. He was formidable in consciousness raising. Of this group, his ideological excusing of horrendous Maoist excesses, has been indefensible and disturbing. His moral stance once promoted a deeply meditative critique on the morality of revolutionary violence by Apoorvanand (“‘Our’ Violence Versus ‘Their’ Violence”, Kafila.online).
But the farce that the Indian state is enacting in pursuing Varavara Rao in the Bhima Koregaon prosecutions is proving him correct in two ways. First, in his insistence that what is known as bourgeois law is a sham in its own terms; the rule of law indeed is rule by law. And second, that repression and degradation is indeed the argument of a despotic state. Where does one turn when law, political parties and the state turn their back on justice?
Anand Teltumbde, one of India’s important and courageous thinkers, just turned 70 in prison. He, along with Sudha Bharadwaj and others, is being held in the Bhima Koregaon case. They are being repeatedly denied bail. Varavara Rao, poet and Maoist intellectual, contracted COVID and has been subject to degrading and humiliating conditions at the age of 80. The overwhelming power that the Unlawful Activities (Prevention) Act gives to the state, the sheer impunity with which government can treat this group of accused, the Kafkaesque role of the judiciary in denying bail and making procedural safeguards ineffective, and the deafening political silence on their detention, all warrant deeper reflection. The accused in the Bhima Koregaon case are not the first to be victimised in this way; and they will not be the last. The UAPA is being used to target protest from Assam to Delhi.
Anand Teltumbde’s work, particularly “Republic of Caste”, presciently forecast his own condition. He, like the others, has drawn support from the usual petition-writing crowd of intellectuals. But his case provides a disturbing window on the political loneliness of a genuine intellectual in Indian conditions.
Here is a well-known Dalit intellectual being put in prison and yet no serious political protest, even from Dalit politicians. Teltumbde had, in another context written, “When Sudhir Dhawale, a Dalit activist, was arrested in 2011 on the trumped up charge of being a Naxalite and incarcerated for nearly four years, there was hardly any protest from the community.” This phenomenon of figures like Teltumbde not drawing broader political support requires some reflection. Teltumbde himself, in part, attributed this to divisions amongst Dalits, and their greater faith in the state. But his work points towards a subtler reason.
For all of India’s handwringing, that we need to escape identity politics, there is a great antipathy to anyone who tries to escape it. Teltumbde is one of those rare figures who argued that the Left and liberals failed to take caste seriously, and caste mobilisation failed to take class and economics seriously. But the result is a kind of suspension in between two constructions: Most of society does not get outraged because he is often reduced to being a Dalit intellectual; Dalits don’t get outraged because he becomes a “Left” intellectual. The blunt truth is that, if we leave the rarefied world of petitions, the only modality of protest that is politically effective is the one that has the imprimatur of community mobilisation behind it. If you can show a community identity is affected, all hell will break loose; without it, there is no political protest.
Teltumbde was also prescient about the way the term “Left” is used in India. Teltumbde himself is closer to the Left in his economic imagination. But the rhetorical function of the “Left” in India is not to describe the contest over the free market versus the state. The rhetorical function of the “Left” is to describe any ideological or political current that, while recognising the importance of identity, wants to escape its compulsory or simplistic character; so any broadly liberal position or a position that distances itself from “my community right or wrong” also becomes Left. For Hindutva, anyone who resists or transcends the narcissisms of collective identity becomes “Left.” But the same is increasingly true of other identities — Maratha, Jat, Dalit, Rajput. “Left” is anyone who complicates identity claims. That, rather than secular versus communal, is the big chasm in Indian politics. But the result is that if you are labelled “Left” in this way, you will have no political protection.
The charge of Maoism is the hyper version of this “Left” in the context of Adivasi mobilisation. Which is why the entire political class, and so much of India’s discursive space, keeps invoking the “Left” spectre. And Teltumbde was insightful in thinking that once you had been labelled Left in India, it was easy to secure a diminution in your legal and cultural standing. Even the Courts will turn off their thinking cap. It is in this that the genuine intellectual enterprise is a lonely one, whose disastrous political consequences Teltumbde is facing.
The Bhima Koregaon cases also throw a spotlight on so many state institutions. The UAPA, and its ubiquitous use is a travesty in a liberal democracy. The lawyer, Abhinav Sekhri, has, in a recent article (“How the UAPA is perverting the Idea of Justice”, Article14.com) pointed out two basic issues with the law. The law is designed in a way that it makes the question of innocence or guilt almost irrelevant. It can, in effect, inflict punishment without guilt. The idea that people like Teltumbde or the exemplary Bharadwaj cannot even get bail underscores this point. And second, the safeguards of our criminal justice process work unevenly at the best of times. But in the case of the UAPA, the courts have often, practically, suspended serious scrutiny of the state. What legitimises this conduct of the court is two things: The broader ideological construction of the “Left” as an existential threat. And the impatience of society with procedural safeguards. The UAPA has in some senses become the judicial version of the encounter — where the suspension of the normal meaning of the rule of law is itself seen as a kind of justice.
The state has been going after Varavara Rao for his entire life. He is a complicated figure. He is an extraordinarily powerful poet who made visible the exploitative skeins of Indian society; his poetry, even in translation, cannot fail to move you out of a complacent slumber. He was formidable in consciousness raising. Of this group, his ideological excusing of horrendous Maoist excesses, has been indefensible and disturbing. His moral stance once promoted a deeply meditative critique on the morality of revolutionary violence by Apoorvanand (“‘Our’ Violence Versus ‘Their’ Violence”, Kafila.online).
But the farce that the Indian state is enacting in pursuing Varavara Rao in the Bhima Koregaon prosecutions is proving him correct in two ways. First, in his insistence that what is known as bourgeois law is a sham in its own terms; the rule of law indeed is rule by law. And second, that repression and degradation is indeed the argument of a despotic state. Where does one turn when law, political parties and the state turn their back on justice?
Thursday 9 May 2019
Friday 26 April 2019
Why the Indian Supreme Court Has Found Itself in an Embarrassing Controversy
There is an important question before the judiciary: Who will be the custodian of the custodians? Rajeev Dhavan in The Wire
Chief Justice of India Ranjan Gogoi (centre). Credit: PTI
Between December 2018 and April 2019, certain controversies concerning the Supreme Court of India have surfaced:
The first concerns the dismissal of an employee for taking casual leave and protesting against her transfer.
The second surrounds the scandalising of the chief justice of India by the said employee.
Third, the remedial action taken by the Supreme Court suo motu (on its own) under the writ jurisdiction of the court with the chief justice on the bench but not passing the order signed by Justices Mishra and Khanna.
Fourth, involving the exclusive in-house procedure for high court and Supreme Court judges.
These controversies are ongoing and may in, as much as they can, put the very notion of justice on trial. Our Supreme Court has often quoted Lord Atkin’s observations in a contempt case of 1936:
“Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”
This article is not intended to obstruct justice or bring into disrepute our justice system – with the Supreme Court at its apex – or the high office of the chief justice of India. It examines issues of due process and procedure.
Dismissal of an employee
An unprecedented controversy has arisen concerning an employee, who was transferred from the CJI’s ‘home’ or residence office, was suspended and later dismissed from the Supreme Court’s service. The charges against her included questioning her transfer, bringing/soliciting undue influence from the president of the Supreme Court Employees Welfare Association on her transfers and taking leave without approval.
Her response was that she had been transferred three times, she had gotten leave for her daughter’s function and was asked to attend office for a little while but couldn’t and the branch officer was informed, and she had spoken to the president of the employees association to find out what was happening but not to influence outcomes. After her suspension order on November 27, 2018, she was asked to appear before a departmental committee hearing on December 17, 2018, but collapsed outside the door due to anxiety and was told on December 19, 2018, that the charges against her had been proven.
The next day her husband wrote to the officer concerned to present her defence statement. However, on December 21, 2018, she was dismissed from service. In another part of the story, with which may not directly be concerned, her husband and brother-in-law were dismissed from the Delhi police on a basis unconnected with the Supreme Court; namely a prior incident of 2012 which had been mutually settled and for links with undesirables.
Also read: Why the Panel to Investigate Sexual Harassment Allegations Against CJI Is Problematic
Far from being a drop in the ocean, or a storm in a teacup concerning an employee, it concerns the administration of justice by the Supreme Court’s administration. I assume that the Supreme Court Officers and Servants (Conditions of Service and Conduct) Rules 1961 apply. Dismissal from service is a major penalty, though it is not clear from the information available whether her dismissal would disqualify her for future employment (under Rule 11).
It is arguable that such a major penalty should not have been imposed; and although formal procedures were followed, they may have been insufficient and hurried. That can only be found when we examine the record of the inquiry which statutorily would include the charges, a written defence, oral and documentary evidence, orders of the Disciplinary Authority and a report.
Thereafter, due process would have dictate whether a major penalty must be imposed – which would normally follow if there is conviction on a criminal charge or “where the Disciplinary Authority is satisfied for some reason to be recorded in writing it is not reasonably practicable to give to the Court an opportunity of showing cause before (awarding) any of the (major)… penalties…” (Rule 13).
Until we have the full record, we shall not know of the details of the rigour of the due process that were followed or the reasons for not doing so, bearing in mind that the woman had the same protection that civil servants under Article 311 of the constitution possess. For the present, the internal justice meted out to the employee seems in violation of due process and prima facie excessive. This is becoming more and more evident as information is coming out that she was not given a proper hearing and crucial witnesses were not examined at the inquiry. At the age of 35, her chances of further employment have been diminished.
Though not part of the charges, in the Supreme Court, it transpired that an FIR was filed against her on March 3, 2019, allegedly for taking a bribe from the informant (NK) who gave her a part payment of Rs 50,000 (part of Rs 10 lakh to be paid) to secure a job in the Supreme Court. She was granted bail on March 12, 2019, but the case was transferred to the Crime Branch which moved for the cancellation of her bail. In turn, she complained, later in March, of harassment by the police, writing letters to the prime minister, National Human Rights Commission and others. If this is a case of victimisation, it would raise more issues.
It could be argued that a little injustice here or there will not dent the majesty of the law. But surely the motto of any court action in its administrative or judicial side must be: “We, who fight for justice must ourselves be just.”
Scandalising the court justice
According to the law of contempt, if a person or media makes any allegation against judges or justice system which brings them in disrepute can be punished for scandalising the judiciary. This offence was invented by Justice Wilmot in 1765 in a draft order never delivered in the John Wilkes affair, but published in 1802 by his son.
Since it covers the media, it is a species of constructive contempt. It is included in the definition of criminal contempt under India’s Contempt of Courts Act 1971 (Section 2 (c)(iii)), and in any case also draws from the high court and Supreme Court power as a court of record with the specific power to punish for contempt (constitution Articles 129 and 215) and any other power in addition to the powers under the Act of 1971.
In a 1899 Privy Council case, English judges said this offence was “obsolete” for England, but may be relevant in “small colonies consisting principally of the coloured population”. This redemption for English justice was short lived and scandalising the judges was revived, but used sparingly in recent years. In India, the scandalising jurisdiction is used more frequently, despite the caution of Justice Krishna Iyer in the Mulgaonkar case (1978).
With this introduction, let us turn to our case. On April 19, 2019, the woman who was dismissed wrote to 22 judges of the Supreme Court detailing sexual harassment and sexual advances by the CJI in October 2018, giving explicit details of events when advances were made. She claimed further humiliation by being forced into apology under pressure for her insolence and that her dismissal was a case of victimisation, since the alleged major embarrassing incident took place on October 11, 2018. For our present purposes, we need not elaborate on the details.
Also read: Why CJI Gogoi Should Step Away From Judicial Work Till In-House Inquiry is Complete
What is important for our purpose is that when the media sought clarification from the CJI, the relevant response of Secretary General Sanjeev S. Kalgaonkar (apart from denying victimisation, and asserting that her family had criminal antecedents and treating the allegations against the CJI as an after thought to her dismissal) categorically stated:
“The allegations regarding 11th October 2018, as well as other allegations as can be discerned from your emails are completely and absolutely false and scurrilous and totally denied… the motive behind these false and scurrilous allegations is obviously mischievous.”
Whether this response was shared with the CJI before or after it was made is not clear, though no Secretary General would normally make such a public reply without consultation. One must, therefore, take this statement as the official response of the Supreme Court in consultation with the CJI. Hence it was the CJI’s response as well.
It is necessary to add that after the Vishakha case (1997), cases of sexual harassment are to be dealt with by a special procedure. But the Supreme Court’s Gender Sensitisation and Sexual Harassment of Women Regulations 2013 exclude complaints by employees in that Regulation 2 (a) defines an aggrieved person to exclude “a female already governed by the Supreme Court Service regulations”. This is a significant exclusion, denying the rigour of sexual harassment procedures which are applicable to non-employees within the precincts of the court but not the employees.
Be that as it may, the #MeToo movement has advanced the presumption that the complainant’s version be treated as prima facie bonafide. A sexual harassment case against CJI Gogoi needs to be moved forward.
Procedure for scandalising
We must pause here for a moment because the Secretary General clearly felt that a case of scurrilous scandalising is made out, the procedure ahead is clear. Under the Contempt of Courts Act 1971, a case of criminal contempt can only commence if the Attorney General or Solicitor General permit or if the Supreme Court does so on its own motion (Section 15 of the Act 1971). The way forward was simple. Issue notice of contempt to the woman and anyone else who repeated the alleged scandalising comments including the media. But the court did not initiate a notice of contempt nor did the Solicitor General present such a motion to the court.
Therein lies the problem. If such a notice was issued, the contempt proceedings would normally be in open hearings. Both the Mulgaonkar case concerning the Indian Express (1978) and Shamlal concerning the Times of India (1978) were about exposing the pusillanimity of Supreme Court judges during the Emergency. Except Chief Justice Beg, no one wanted this. Two of the judges (Justices Chandrachud and Bhagwati) were in line to become CJIs. Justice Krishna Iyer, behind the scenes, and in his judgment counselled restraint to avoid further publicity, which is inevitably one of the consequences of contempt hearings in open hearings. No less, the views aired at the time were that even though truth was not specifically a defence, it would be invoked against the justices.
Justice Krishna Iyer told me he was well aware of this consequence. His judgment constitutes what have come to be called the Mulgaonkar guidelines. No contempt – no controversy. After the amendment of the Contempt of Court Act 1971, in 2006, Section 13 of the Act specifically allows truth as a defence. The relevant portion reads:
“13. Contempts not punishable in certain cases – Notwithstanding anything contained in any law for the time being in force … (b) the court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bonafide.”
This would create awkwardness in the proceedings, to say the least. ‘Truth’ as a defence is available “in any proceeding for contempt”. In our present context, it would mean that the woman would present all the detailed evidence in her favour for invoking truth as defence, even thought the proceeding would be to protect the judge, not the complainant.
This was the only remedy by and through which the Supreme Court could have proceeded, but it chose not to do so. Treating this case as a purely contempt case would have proved hazardous for the CJI.
The Supreme Court’s suo motu action
Instead of a case in contempt for scandalising, the Supreme Court processed a writ petition as a “Matter of Great Importance touching upon the Independence of the Judiciary – mentioned by Tushar Mehta: Secretary General of India”. No petition was filed. It is clear that even if the CJI was the master of roster, he could not have handpicked judges and certainly not sat on the bench.
It cannot be overlooked that Justice Gogoi was part of the four judges who protested in public then Chief Justice Deepak Misra’s abuse of his power over the roster. Chief Justice Misra had also handpicked Justice Arun Mishra, who appears to have been picked in the present case in the special Saturday hearing on April 20. The less said, the better.
For the moment, let us assume that the petition was maintainable and that either (a) someone’s fundamental right was infringed upon, or (b) that this writ was part of the undefined power of the Supreme Court as a Court of Record, which specifically includes the power to punish for contempt. But since these proceedings were in lieu of contempt for scandalising, a new procedure was evolved at the instance of the CJI, albeit on the mentioning of Solicitor General Mehta.
In the hearings of the suo motu case, the Supreme Court did not caution a censorship of details which were in the public domain but invited the cooperation of the media by stating in its order of April 20:
“Having considered the matter, we refrain from passing any judicial order at this moment leaving it to the wisdom of the media to show restraint, act responsibly as is expected from them and accordingly decide what should or should not be published as wild and scandalous allegations undermine and irreparably damage reputation and negate independence of judiciary. We would therefore at this juncture leave it to the media to take off such material which is undesirable.”
This is not a gag order, but a request to be respectfully treated as a gag: In the Sahara case (2012), the Supreme Court assumed a power to postpone reportage where criminal proceedings were pending, under the court’s inherent power as a Court of Record. The inherent power seems to be increasing by leaps and bounds. This invisible reservoir of power is slowly becoming visible and subject to diverse uses.
What needs elucidation is that the court’s proceedings of April 20 were specially held on a Saturday morning with the Attorney General K.K. Venugopal, Solicitor General Tushar Mehta and president of the Supreme Court Bar Association, Rakesh Khanna being present. What seems astonishing is that CJI Gogoi was also part of the bench, but not a signatory to the order. No person can be a judge in their own cause or hand pick a bench. At best, it could have gone to some other bench without the urgency of a Saturday hearing. Master of the roster or not, I think the proceedings in this writ petition are sufficiently tainted and should be closed.
Instead of closing this suo motu writ petition, whose sole purpose was to quiet the storm of protest arising out of the CJI controversy, on April 23-24 the Court issued notice to advocate Utsav Bains who filed an affidavit in which he asserts that there was a wider conspiracy involving a corporate figure who, along with an alleged fixer Romesh Sharma, tried to “frame the Hon’ble Chief Justice of India in a false case of sexual harassment to pressurize him to resign” and that Bains was privy to documents under sealed cover to prove this. On April 24, the bench consisting of Justices Arun Mishra, Nariman and Gupta summoned the highest officers of the CBI and police. The simplest solution would be to ask the CBI to investigate and file an information to this effect without the ensuing drama which has now become a part of the crisis.
The in-house procedure
Since the judges did not want complaints to be aired ad lib against them short of impeachment, an in-house procedure was created as a result of the agitation of the Bombay bar concerning the chief justice of Bombay in the Ravichandran Iyer case (1995). This in-house procedure was to protect public faith in high court judges. The question posed by the judgment was:
“When the Judge cannot be removed by impeachment process for such conduct but generates widespread feeling of dissatisfaction among the general public, the question would be who would stamp out the rot and judge the Judge or who would impress upon the Judge either to desist from repetition or to demit the office in grace? Who would be the appropriate authority? Who would be the principal mover in that behalf? The hiatus between bad behaviour and impeachable misbehaviour needs to be filled in to stem erosion of public confidence in the efficacy of judicial process.”
The purpose was to prevent public discussion by the media or agitation by the Bar and to protect judges by harmonising free speech rights. The judgment, therefore, explores self regulation: “It seems to us self regulation by the judiciary is the only method which can be tried and adopted.” The trajectory was an in-house inquiry following which matters could eventually be acted upon by the CJI until when the Bar was to “suspend all action”. The court said,
“The Chief Justice of India, on receipt of the information from the Chief Justice of the High Court, after being satisfied about the correctness and truth touching the conduct of the Judge, may tender such advice either directly or may initiate such action, as is deemed necessary or warranted under given facts and circumstances. If circumstances permit, it may be salutary to take the Judge into confidence before initiating action. On the decision being taken by the Chief Justice of India, the matter should rest at that. This procedure would not only facilitate nibbing in the bud the conduct of a Judge leading to loss of public confidence in the courts and sustain public faith in the efficacy of the rule of law and respect for the judiciary, but would also avoid needless embarrassment of contempt proceedings against the office bearers of the Bar Association and group libel against all concerned.”
Of course, in our case, it is the CJI who is involved. In a better-late-than-never initiative, the CJI passed the controversy to Justice S.A. Bobde (senior-most judge after the CJI), who will now assume the role assigned to the CJI in the Iyer case. Since Justice N.V. Ramana said he will not be a part of the panel, its constitution remains in question. Who will the panel report to? Surely not to CJI Gogoi? We are compelled to raise the further question as to whether CJI Gogoi was fully involved in the creation of procedure in this case.
Also read: Charge Against CJI Gogoi Should Be Handled Correctly If SC Wants to Keep People’s Faith
This procedure was also used in the Bangalore crisis and Justice Gupta (then chief justice of Kerala who inquired into it) told me that nobody wanted to depose against the judges. In the Madhya Pradesh case, such a committee was appointed against high court Judge ‘X’ who was later absolved. How would the woman complainant fare in a committee examining the case against a CJI noting that (a) the Supreme Court’s Secretary General has already taken a view that the allegations are scurrilous and (b) truth in its totality would not be a defence. I really think this in-house procedure was directed against the Bar in Iyer’s case in a particular situation and its extension is dangerous and undesirable as a clandestine in camera process.
No in-house procedure can be a substitute for a sexual harassment case.
Reviewing the controversy
This controversy is embarrassing in many respects:
I believe the dismissal proceedings against the woman employee were unfair.
The Supreme Court through its Secretary General had already taken a view that her comments were scurrilous presumably with the CJI’s knowledge since it aired his defence.
The procedure adopted on the Saturday hearing was unfair and tainted and must be closed.
If the Supreme Court felt the court was scandalised, the court should have issued contempt proceedings giving the accused woman the right to invoke truth as a defence.
The in-house procedure under the Iyer case is clumsy and unfair.
No in-house procedure can be a substitute for a sexual harassment case. The woman would have little chance and it is a moot question who would depose against the CJI under these circumstances.
There remains the question of whether during his investigation, the CJI should continue to sit in his judicial or administrative capacity. I am strongly of the view that we should continue to discharge both these functions in the confidence that he will not interfere with any procedure further. We have yet to learn the manner in which the in-house procedure will proceed.
We have seen that the CJI is likely to have known of the dismissal proceedings. He was certainly instrumental in constituting the suo motu bench. He is likely to have known of the Secretary General’s statement in his defence that the allegations were scurrilous. He had a choice to proceed in contempt as he did in the Justice Katju case, but may have felt that this might be perilous in the present case. He may have been right to pass on the controversy to an in-house, procedure, as an alternative because after the hearing on April 23, the judges of the first five courts appear to have met in conclave while hearings in those courts were suspended. The CJI seems to be in the know of the choices of procedures to deal with the crisis – each more inventive than the other.
In any case, this is a no-win situation. If the in-house procedure results in his favour, it will be sought to be questioned – but there is no forum for doing so. If it goes against him, the embarrassment will be greater, leading to resignation or impeachment.
Looking to the future
Having said this, there is a need for a judicial accountability mechanism for the high courts and Supreme Court through a constitutional amendment, as in so many countries. There must be a procedure to answer the adage Quis custodiet ipsos custodes: Who will be the custodian of the custodians.
Chief Justice of India Ranjan Gogoi (centre). Credit: PTI
Between December 2018 and April 2019, certain controversies concerning the Supreme Court of India have surfaced:
The first concerns the dismissal of an employee for taking casual leave and protesting against her transfer.
The second surrounds the scandalising of the chief justice of India by the said employee.
Third, the remedial action taken by the Supreme Court suo motu (on its own) under the writ jurisdiction of the court with the chief justice on the bench but not passing the order signed by Justices Mishra and Khanna.
Fourth, involving the exclusive in-house procedure for high court and Supreme Court judges.
These controversies are ongoing and may in, as much as they can, put the very notion of justice on trial. Our Supreme Court has often quoted Lord Atkin’s observations in a contempt case of 1936:
“Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”
This article is not intended to obstruct justice or bring into disrepute our justice system – with the Supreme Court at its apex – or the high office of the chief justice of India. It examines issues of due process and procedure.
Dismissal of an employee
An unprecedented controversy has arisen concerning an employee, who was transferred from the CJI’s ‘home’ or residence office, was suspended and later dismissed from the Supreme Court’s service. The charges against her included questioning her transfer, bringing/soliciting undue influence from the president of the Supreme Court Employees Welfare Association on her transfers and taking leave without approval.
Her response was that she had been transferred three times, she had gotten leave for her daughter’s function and was asked to attend office for a little while but couldn’t and the branch officer was informed, and she had spoken to the president of the employees association to find out what was happening but not to influence outcomes. After her suspension order on November 27, 2018, she was asked to appear before a departmental committee hearing on December 17, 2018, but collapsed outside the door due to anxiety and was told on December 19, 2018, that the charges against her had been proven.
The next day her husband wrote to the officer concerned to present her defence statement. However, on December 21, 2018, she was dismissed from service. In another part of the story, with which may not directly be concerned, her husband and brother-in-law were dismissed from the Delhi police on a basis unconnected with the Supreme Court; namely a prior incident of 2012 which had been mutually settled and for links with undesirables.
Also read: Why the Panel to Investigate Sexual Harassment Allegations Against CJI Is Problematic
Far from being a drop in the ocean, or a storm in a teacup concerning an employee, it concerns the administration of justice by the Supreme Court’s administration. I assume that the Supreme Court Officers and Servants (Conditions of Service and Conduct) Rules 1961 apply. Dismissal from service is a major penalty, though it is not clear from the information available whether her dismissal would disqualify her for future employment (under Rule 11).
It is arguable that such a major penalty should not have been imposed; and although formal procedures were followed, they may have been insufficient and hurried. That can only be found when we examine the record of the inquiry which statutorily would include the charges, a written defence, oral and documentary evidence, orders of the Disciplinary Authority and a report.
Thereafter, due process would have dictate whether a major penalty must be imposed – which would normally follow if there is conviction on a criminal charge or “where the Disciplinary Authority is satisfied for some reason to be recorded in writing it is not reasonably practicable to give to the Court an opportunity of showing cause before (awarding) any of the (major)… penalties…” (Rule 13).
Until we have the full record, we shall not know of the details of the rigour of the due process that were followed or the reasons for not doing so, bearing in mind that the woman had the same protection that civil servants under Article 311 of the constitution possess. For the present, the internal justice meted out to the employee seems in violation of due process and prima facie excessive. This is becoming more and more evident as information is coming out that she was not given a proper hearing and crucial witnesses were not examined at the inquiry. At the age of 35, her chances of further employment have been diminished.
Though not part of the charges, in the Supreme Court, it transpired that an FIR was filed against her on March 3, 2019, allegedly for taking a bribe from the informant (NK) who gave her a part payment of Rs 50,000 (part of Rs 10 lakh to be paid) to secure a job in the Supreme Court. She was granted bail on March 12, 2019, but the case was transferred to the Crime Branch which moved for the cancellation of her bail. In turn, she complained, later in March, of harassment by the police, writing letters to the prime minister, National Human Rights Commission and others. If this is a case of victimisation, it would raise more issues.
It could be argued that a little injustice here or there will not dent the majesty of the law. But surely the motto of any court action in its administrative or judicial side must be: “We, who fight for justice must ourselves be just.”
Scandalising the court justice
According to the law of contempt, if a person or media makes any allegation against judges or justice system which brings them in disrepute can be punished for scandalising the judiciary. This offence was invented by Justice Wilmot in 1765 in a draft order never delivered in the John Wilkes affair, but published in 1802 by his son.
Since it covers the media, it is a species of constructive contempt. It is included in the definition of criminal contempt under India’s Contempt of Courts Act 1971 (Section 2 (c)(iii)), and in any case also draws from the high court and Supreme Court power as a court of record with the specific power to punish for contempt (constitution Articles 129 and 215) and any other power in addition to the powers under the Act of 1971.
In a 1899 Privy Council case, English judges said this offence was “obsolete” for England, but may be relevant in “small colonies consisting principally of the coloured population”. This redemption for English justice was short lived and scandalising the judges was revived, but used sparingly in recent years. In India, the scandalising jurisdiction is used more frequently, despite the caution of Justice Krishna Iyer in the Mulgaonkar case (1978).
With this introduction, let us turn to our case. On April 19, 2019, the woman who was dismissed wrote to 22 judges of the Supreme Court detailing sexual harassment and sexual advances by the CJI in October 2018, giving explicit details of events when advances were made. She claimed further humiliation by being forced into apology under pressure for her insolence and that her dismissal was a case of victimisation, since the alleged major embarrassing incident took place on October 11, 2018. For our present purposes, we need not elaborate on the details.
Also read: Why CJI Gogoi Should Step Away From Judicial Work Till In-House Inquiry is Complete
What is important for our purpose is that when the media sought clarification from the CJI, the relevant response of Secretary General Sanjeev S. Kalgaonkar (apart from denying victimisation, and asserting that her family had criminal antecedents and treating the allegations against the CJI as an after thought to her dismissal) categorically stated:
“The allegations regarding 11th October 2018, as well as other allegations as can be discerned from your emails are completely and absolutely false and scurrilous and totally denied… the motive behind these false and scurrilous allegations is obviously mischievous.”
Whether this response was shared with the CJI before or after it was made is not clear, though no Secretary General would normally make such a public reply without consultation. One must, therefore, take this statement as the official response of the Supreme Court in consultation with the CJI. Hence it was the CJI’s response as well.
It is necessary to add that after the Vishakha case (1997), cases of sexual harassment are to be dealt with by a special procedure. But the Supreme Court’s Gender Sensitisation and Sexual Harassment of Women Regulations 2013 exclude complaints by employees in that Regulation 2 (a) defines an aggrieved person to exclude “a female already governed by the Supreme Court Service regulations”. This is a significant exclusion, denying the rigour of sexual harassment procedures which are applicable to non-employees within the precincts of the court but not the employees.
Be that as it may, the #MeToo movement has advanced the presumption that the complainant’s version be treated as prima facie bonafide. A sexual harassment case against CJI Gogoi needs to be moved forward.
Procedure for scandalising
We must pause here for a moment because the Secretary General clearly felt that a case of scurrilous scandalising is made out, the procedure ahead is clear. Under the Contempt of Courts Act 1971, a case of criminal contempt can only commence if the Attorney General or Solicitor General permit or if the Supreme Court does so on its own motion (Section 15 of the Act 1971). The way forward was simple. Issue notice of contempt to the woman and anyone else who repeated the alleged scandalising comments including the media. But the court did not initiate a notice of contempt nor did the Solicitor General present such a motion to the court.
Therein lies the problem. If such a notice was issued, the contempt proceedings would normally be in open hearings. Both the Mulgaonkar case concerning the Indian Express (1978) and Shamlal concerning the Times of India (1978) were about exposing the pusillanimity of Supreme Court judges during the Emergency. Except Chief Justice Beg, no one wanted this. Two of the judges (Justices Chandrachud and Bhagwati) were in line to become CJIs. Justice Krishna Iyer, behind the scenes, and in his judgment counselled restraint to avoid further publicity, which is inevitably one of the consequences of contempt hearings in open hearings. No less, the views aired at the time were that even though truth was not specifically a defence, it would be invoked against the justices.
Justice Krishna Iyer told me he was well aware of this consequence. His judgment constitutes what have come to be called the Mulgaonkar guidelines. No contempt – no controversy. After the amendment of the Contempt of Court Act 1971, in 2006, Section 13 of the Act specifically allows truth as a defence. The relevant portion reads:
“13. Contempts not punishable in certain cases – Notwithstanding anything contained in any law for the time being in force … (b) the court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bonafide.”
This would create awkwardness in the proceedings, to say the least. ‘Truth’ as a defence is available “in any proceeding for contempt”. In our present context, it would mean that the woman would present all the detailed evidence in her favour for invoking truth as defence, even thought the proceeding would be to protect the judge, not the complainant.
This was the only remedy by and through which the Supreme Court could have proceeded, but it chose not to do so. Treating this case as a purely contempt case would have proved hazardous for the CJI.
The Supreme Court’s suo motu action
Instead of a case in contempt for scandalising, the Supreme Court processed a writ petition as a “Matter of Great Importance touching upon the Independence of the Judiciary – mentioned by Tushar Mehta: Secretary General of India”. No petition was filed. It is clear that even if the CJI was the master of roster, he could not have handpicked judges and certainly not sat on the bench.
It cannot be overlooked that Justice Gogoi was part of the four judges who protested in public then Chief Justice Deepak Misra’s abuse of his power over the roster. Chief Justice Misra had also handpicked Justice Arun Mishra, who appears to have been picked in the present case in the special Saturday hearing on April 20. The less said, the better.
For the moment, let us assume that the petition was maintainable and that either (a) someone’s fundamental right was infringed upon, or (b) that this writ was part of the undefined power of the Supreme Court as a Court of Record, which specifically includes the power to punish for contempt. But since these proceedings were in lieu of contempt for scandalising, a new procedure was evolved at the instance of the CJI, albeit on the mentioning of Solicitor General Mehta.
In the hearings of the suo motu case, the Supreme Court did not caution a censorship of details which were in the public domain but invited the cooperation of the media by stating in its order of April 20:
“Having considered the matter, we refrain from passing any judicial order at this moment leaving it to the wisdom of the media to show restraint, act responsibly as is expected from them and accordingly decide what should or should not be published as wild and scandalous allegations undermine and irreparably damage reputation and negate independence of judiciary. We would therefore at this juncture leave it to the media to take off such material which is undesirable.”
This is not a gag order, but a request to be respectfully treated as a gag: In the Sahara case (2012), the Supreme Court assumed a power to postpone reportage where criminal proceedings were pending, under the court’s inherent power as a Court of Record. The inherent power seems to be increasing by leaps and bounds. This invisible reservoir of power is slowly becoming visible and subject to diverse uses.
What needs elucidation is that the court’s proceedings of April 20 were specially held on a Saturday morning with the Attorney General K.K. Venugopal, Solicitor General Tushar Mehta and president of the Supreme Court Bar Association, Rakesh Khanna being present. What seems astonishing is that CJI Gogoi was also part of the bench, but not a signatory to the order. No person can be a judge in their own cause or hand pick a bench. At best, it could have gone to some other bench without the urgency of a Saturday hearing. Master of the roster or not, I think the proceedings in this writ petition are sufficiently tainted and should be closed.
Instead of closing this suo motu writ petition, whose sole purpose was to quiet the storm of protest arising out of the CJI controversy, on April 23-24 the Court issued notice to advocate Utsav Bains who filed an affidavit in which he asserts that there was a wider conspiracy involving a corporate figure who, along with an alleged fixer Romesh Sharma, tried to “frame the Hon’ble Chief Justice of India in a false case of sexual harassment to pressurize him to resign” and that Bains was privy to documents under sealed cover to prove this. On April 24, the bench consisting of Justices Arun Mishra, Nariman and Gupta summoned the highest officers of the CBI and police. The simplest solution would be to ask the CBI to investigate and file an information to this effect without the ensuing drama which has now become a part of the crisis.
The in-house procedure
Since the judges did not want complaints to be aired ad lib against them short of impeachment, an in-house procedure was created as a result of the agitation of the Bombay bar concerning the chief justice of Bombay in the Ravichandran Iyer case (1995). This in-house procedure was to protect public faith in high court judges. The question posed by the judgment was:
“When the Judge cannot be removed by impeachment process for such conduct but generates widespread feeling of dissatisfaction among the general public, the question would be who would stamp out the rot and judge the Judge or who would impress upon the Judge either to desist from repetition or to demit the office in grace? Who would be the appropriate authority? Who would be the principal mover in that behalf? The hiatus between bad behaviour and impeachable misbehaviour needs to be filled in to stem erosion of public confidence in the efficacy of judicial process.”
The purpose was to prevent public discussion by the media or agitation by the Bar and to protect judges by harmonising free speech rights. The judgment, therefore, explores self regulation: “It seems to us self regulation by the judiciary is the only method which can be tried and adopted.” The trajectory was an in-house inquiry following which matters could eventually be acted upon by the CJI until when the Bar was to “suspend all action”. The court said,
“The Chief Justice of India, on receipt of the information from the Chief Justice of the High Court, after being satisfied about the correctness and truth touching the conduct of the Judge, may tender such advice either directly or may initiate such action, as is deemed necessary or warranted under given facts and circumstances. If circumstances permit, it may be salutary to take the Judge into confidence before initiating action. On the decision being taken by the Chief Justice of India, the matter should rest at that. This procedure would not only facilitate nibbing in the bud the conduct of a Judge leading to loss of public confidence in the courts and sustain public faith in the efficacy of the rule of law and respect for the judiciary, but would also avoid needless embarrassment of contempt proceedings against the office bearers of the Bar Association and group libel against all concerned.”
Of course, in our case, it is the CJI who is involved. In a better-late-than-never initiative, the CJI passed the controversy to Justice S.A. Bobde (senior-most judge after the CJI), who will now assume the role assigned to the CJI in the Iyer case. Since Justice N.V. Ramana said he will not be a part of the panel, its constitution remains in question. Who will the panel report to? Surely not to CJI Gogoi? We are compelled to raise the further question as to whether CJI Gogoi was fully involved in the creation of procedure in this case.
Also read: Charge Against CJI Gogoi Should Be Handled Correctly If SC Wants to Keep People’s Faith
This procedure was also used in the Bangalore crisis and Justice Gupta (then chief justice of Kerala who inquired into it) told me that nobody wanted to depose against the judges. In the Madhya Pradesh case, such a committee was appointed against high court Judge ‘X’ who was later absolved. How would the woman complainant fare in a committee examining the case against a CJI noting that (a) the Supreme Court’s Secretary General has already taken a view that the allegations are scurrilous and (b) truth in its totality would not be a defence. I really think this in-house procedure was directed against the Bar in Iyer’s case in a particular situation and its extension is dangerous and undesirable as a clandestine in camera process.
No in-house procedure can be a substitute for a sexual harassment case.
Reviewing the controversy
This controversy is embarrassing in many respects:
I believe the dismissal proceedings against the woman employee were unfair.
The Supreme Court through its Secretary General had already taken a view that her comments were scurrilous presumably with the CJI’s knowledge since it aired his defence.
The procedure adopted on the Saturday hearing was unfair and tainted and must be closed.
If the Supreme Court felt the court was scandalised, the court should have issued contempt proceedings giving the accused woman the right to invoke truth as a defence.
The in-house procedure under the Iyer case is clumsy and unfair.
No in-house procedure can be a substitute for a sexual harassment case. The woman would have little chance and it is a moot question who would depose against the CJI under these circumstances.
There remains the question of whether during his investigation, the CJI should continue to sit in his judicial or administrative capacity. I am strongly of the view that we should continue to discharge both these functions in the confidence that he will not interfere with any procedure further. We have yet to learn the manner in which the in-house procedure will proceed.
We have seen that the CJI is likely to have known of the dismissal proceedings. He was certainly instrumental in constituting the suo motu bench. He is likely to have known of the Secretary General’s statement in his defence that the allegations were scurrilous. He had a choice to proceed in contempt as he did in the Justice Katju case, but may have felt that this might be perilous in the present case. He may have been right to pass on the controversy to an in-house, procedure, as an alternative because after the hearing on April 23, the judges of the first five courts appear to have met in conclave while hearings in those courts were suspended. The CJI seems to be in the know of the choices of procedures to deal with the crisis – each more inventive than the other.
In any case, this is a no-win situation. If the in-house procedure results in his favour, it will be sought to be questioned – but there is no forum for doing so. If it goes against him, the embarrassment will be greater, leading to resignation or impeachment.
Looking to the future
Having said this, there is a need for a judicial accountability mechanism for the high courts and Supreme Court through a constitutional amendment, as in so many countries. There must be a procedure to answer the adage Quis custodiet ipsos custodes: Who will be the custodian of the custodians.
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