Judges appoint/promote themselves, there is no mechanism to sack corrupt ones; and now, they conduct their own inquiries.
Even when it was first announced, an internal Supreme Court committee examining the sexual harassment charges against Chief Justice of India (CJI) Ranjan Gogoi was always a bad idea since, at the end of the day, the judges reported to the CJI. But, at the very least, the committee needed to have external members and its inquiry had to be conducted with certain rules designed to give the complainant as much of a chance to make her case; more so since, the CJI’s first reaction was to dismiss the charge as part of a larger conspiracy against him and a retired judge was asked to probe this with the help of the Delhi Police, the CBI and the IB implying that, even before the committee reached a view, the Supreme Court already had.
As it happened, the complainant walked out of the Supreme Court inquiry while saying she was not getting a fair shot; she was, for instance, not allowed to have her lawyer with her, she wasn’t even given a written copy of her statement to the committee, and there was no audio/video recording of the proceedings which is critical to ensure that all witnesses were interviewed and that their statements were taken into account by the committee. As it happened, when the complainant walked out, the decision was ex parte, much like the one when a Supreme Court disciplinary committee dismissed her from her job after the alleged incident first came to light.
Even under normal circumstances, the in-house inquiry was problematic, but what complicated things further were the other charges made. The complainant had alleged, for instance, that she was transferred thrice in a matter of weeks after the incident, a Supreme Court disciplinary enquiry was initiated against her after this, her husband and brother-in-law were suspended from the Delhi police and she was even arrested based on a complaint that she had been paid Rs 50,000 to help someone get a job in the Supreme Court. Given the committee report has not been made public or even given to the complainant, it is not clear if all the charges were probed; was the police, for instance, asked to explain how the suspensions took place after the complainant’s fallout with the CJI, or why the alleged bribe-giver was not also being prosecuted.
With the in-house committee giving the CJI a clean chit, judges have become even more powerful than ever before, and the institution even more opaque. In the 1990s, over the course of three cases, the judges created the collegium which had the sole right to recommend appointing/promoting judges. Till then, this was done by the government, and when the government tried to strike a balance by proposing a National Judicial Appointments Commission (NJAC) which gave both the government and the Supreme Court an equal say in selecting judges – and both had a veto – the SC struck this down even as its own judgment made it clear the collegium system had serious shortcomings. Indeed, when the four judges – including current CJI Ranjan Gogoi – had gone public with their protest against then CJI Dipak Misra, they wrote to Misra and referred to the letter written by Justice CS Karnan who gave a list of 20 corrupt sitting/retired Supreme Court and high court judges. While the letter spoke of the need to “revisit the process of appointment of judges and to set up a mechanism for corrective measures other than impeachment”, nothing of the sort took place. A Judicial Standards and Accountability Bill, in fact, was brought into Parliament in 2000 to address these issues by setting up a National Judicial Oversight Committee, a Complaints Scrutiny Panel and an Investigation Committee, but nothing came of it.
In this instance, CJI Gogoi presided over a 3-judge bench that discussed the sexual harassment charge against him; ironically, when the four judges went public against then CJI Misra, one of the charges they had made was that he was presiding over benches dealing with cases that concerned him. While CJI Gogoi presided over the three-judge bench that passed an order suggesting that the media refrain from publishing the detailed affidavit of the complainant, the order was, interestingly, given in the name of the two other judges.
The inquiry process looked so loaded against the complainant, Justice DY Chandrachud in the Supreme Court has expressed his discomfiture with the in-house committee, and former Delhi High Court chief justice AP Shah told The Indian Express that “in no sense can this be called an inquiry … I also agree (with Justice Chandrachud) that there ought to have been an external inquiry… there is no other way to ensure that the judiciary can be viewed as an impartial body” (https://bit.ly/2VMZZo5). And, at another event, last year, after the four judges went public against then CJI Dipak Misra, Justice AP Shah (https://bit.ly/2H6APZu) said that even after the bribery charge against Justice Nirmal Yadav of the Punjab and Haryana High Court, she was only transferred to another court and her case is still pending after a decade; he said that there was no proper investigation of the charges made, among others, against judges including the then CJI by former Arunachal Pradesh chief minister Kalikho Pul in his suicide note… the Judge Loya case, Justice Shah said, was a trigger for the four judges going public against then CJI Dipak Misra, but “what the judges allege has happened several times in the past”.
The sexual harassment allegation may not hold any water, as the Supreme Court inquiry panel contends, but the manner in which this has been dealt with proves that the SC isn’t quite ready for complete transparency. And, in the absence of that, it is difficult to see how the dignity of the Supreme Court and the judiciary can be restored. Indeed, though the inquiry panel was meant to restore CJI Gogoi’s reputation, it has only tarnished it further.