Justice A.K Sikri of Supreme Court while speaking on ‘Freedom of the press in the digital age’, on February 10, said, “Judging is under stress in the digital era. Freedom of the press is changing the paradigm of civil and human rights and the current pattern of media trials is an example of it. People start discussing on social media not what is the outcome but ‘what should be the outcome’. It has an influence on how a judge decides a case.”
Additional Solicitor General Madhavi Goradia Divan, also gave her concurring views and said that the procedural requirement is of accredited journalists to report from Supreme Court, but for many people the source of reporting is Twitter. “I think it can put the judge under pressure, as they are as human as anybody else and we should not distract them from deciding independently.”
One such giant exercise of media and street trials began when a 35-year-old woman who used to work as a junior Supreme Court staffer instead of taking appropriate action under the law, wrote to 22 judges of the Supreme Court and four media houses on April 19, 2019, alleging that Chief Justice of India Ranjan Gogoi had made sexual advances on her at his residence office on October 10 and 11,2018.
The discussion here on the matter is not of judgemental nature nor is inclined to narrate the sequence of events. It only means to discuss the faults of the system and absence of the mechanism, which has caused to scandalise the supreme Constitutional seat of dignity, as a CJI, like Caesar’s wife, is expected to be above suspicion.
The three points of discussion are: the wrong side approach of the complainant to bring forth her grievances; the ‘irredeemable damage’ to top most Constitutional seat through contemptuous media and street trials and legal extortion in the name of woman empowerment.
Soon after woman staffer’s sending complaint to 22 judges of Supreme Court, and four media houses, CJI Gogoi on April 20, convened an urgent suo moto hearing into the allegation of sexual harassment levelled against him. Justice Gogoi set-up a three-member Bench headed by himself that comprised Justice Arun Mishra and Justice Sanjiv Khanna. During the hearing, Justice Gogoi rejected the charges levelled against him and turned the allegations an attempt to deactivate the office of the CJI.
At the end of the hearing CJI Gogoi withdrew himself from the matter and a judicial order was passed by Justice Arun Mishra and Justice Sanjiv Khanna. Subsequently, a three-member in-House Committee of Supreme Court judges Indira Banerjee and Justice Indu Malhotra, was formed which submitted its report, dated May 05, 2019; in accordance with the in-House procedure, to Justice Arun Mishra, the next senior judge competent to receive the report. The in-House Committee unanimously cleared Chief Justice of India Ranjan Gogoi of sexual harassment charges levelled against him by the complainant. The panel also observed that before April 19, when the woman wrote to 22 judges, she did not raise the allegation of sexual harassment when she challenged the disciplinary action against her in December 2018.
The complainant alleged that the proceedings of the Committee were informal in nature and were not in accordance of the procedure. As such, the proceedings were bound to be informal as the complainant herself filed the complaint in an informal manner without following the due procedure of law and her act of sending the complaint to four media houses does indicate the intention of maligning the individual who happened to be the supreme Constitutional authority of the country. The allegation of ‘Nemo judex in causa-sua’ violation here is not justified as the CJI had no option but to form a three-member Committee being Master of the Roster and he was not the member of the in-House Committee, which found no substance in her allegations against CJI.
Article 124(4) lays down the procedure of removing a judge of the Supreme Court/CJI in the manner provided in Article 61. More so, the Supreme Court Regulations on Sexual Harassment, 2013, have no procedure for sexual harassment complaints against judges. An enquiry in an ordinary departmental proceeding, can not be equated to an enquiry in impeachment proceedings against a judge, under the Judges (Inquiry) Act, 1968.
After this action, doors of unprecedented politicking opened up in and outside the Supreme Court four walls. The Supreme Court Bar Association and the Supreme Advocates on Record Association passed resolutions criticising the CJI violating the process in hearing his own case.
On the contrary, the Bar Council of India(BCI); Supreme Court Employees Welfare Association, supported CJI. Employees Association passed a resolution condemning the false, fabricated and baseless allegations against the CJI. The Bar Council of India termed the allegations a “cock and bull” story “big conspiracy”. The fraternity divided itself into groups like political rivals without realising the contemptuous nature of their actions.
Prominent lawyers wrote derogatory articles in newspapers against CJI, gave interviews to print, electronic and social media. Even the former judges openly criticized the CJI in public domain through different media. About 55 protestors mostly women lawyers and activists were detained outside the Supreme Court against the procedure adopted to deal with a sexual harassment case against CJI. The woman protestors shouted slogans of ‘supreme injustice’.
According to Section 2 (a) of the Contempt of Courts Act, 1971, Contempt of Court is of two types, civil and criminal. Civil contempt is wilful disobedience to any judgement, decree, direction, order, writ, etc. Criminal contempt means the publication of any matter… which scandalises or tends to scandalise, or lowers or tends to lower the authority of any court….or obstructs or tends to obstruct, the administration of justice in any other manner. Oswal defined contempt of court as, “any conduct that tends to bring the authority and administration of law into disrespect or disregard or to interfere with or prejudices parties, or their witnesses during litigation.” In view of the above, all street and media trials by all and sundry amounted to contempt of court which needs to be punished.
This was not the first case of sexual harassment against a judge of Supreme Court or High Court. In the recent past, in 2013, former apex court judge, Ashok Kumar Ganguly was accused of sexual harassment by a woman intern. She had posted the details of the incident that took place in a hotel room in December, 2012, on a blog, in total disregard to follow the legal process of complaint. Following the allegations, Supreme Court had appointed a panel to probe the Intern’s allegations. However, it said, it could take no action against him as he had retired when the alleged incident took place.
The panel in its report said that Justice Ganguly had argued that this case did not apply to the Vishakha Guidelines on sexual harassment at the workplace, as Hon’ble Court is not the workplace of either the intern or the judge who retired.
In 2014, Additional District & Sessions Judge accused sitting judge of Madhya Pradesh High Court, Justice S.K. Gangele of sexual harassment. It was also alleged that Justice Gangele was instrumental in her being posted in a remote area in the State. As a result of this and related acts, she was forced to resign from her post as Addl District and Sessions Judge.
Taking cognisance of her complaint, Chief Justice of Madhya Pradesh High Court constituted a two-member Committee, but the complainant challenged the constitution of the Committee in Supreme Court. Subsequently, the Supreme Court constituted a three-member Committee comprising Justice D.Y. Chandrachud, Justice G. Rohini and Justice Ajay Rastogi. This Committee concluded that the material on record was insufficient to establish the charge of sexual harassment. In 2015, Vice President Hamid Ansari admitted an impeachment motion in the upper House. During the proceedings, Justice Gangele, denied all the allegations levelled against him and the Committee eventually decided in his favour.
In another case, on January 13, 2014, a former law intern ‘Ms. X’ filed a petition in Supreme Court that in 2011, she was sexually harassed by retired Supreme Court judge Justice Swatantar Kumar, who was then appointed as Chairman, Nation Green Tribunal (NGT), seeking inquiry against the retired judge.
Earlier the intern had filed a petition to challenge the apex courts’ December 05, 2013, full court resolution in Justice Gangele case, in which it was decided that no complaint against its retired judges will be entertained.
Justice Kumar on January 14,2014, filed reply in SC saying the entire allegation is a deep-rooted conspiracy and that he has filed a defamation and injunction suit against certain media houses and the intern for publishing news regarding the sexual harassment charges against him. On January 17, 2014, Delhi High Court restrained the media from publishing contents which highlight the allegations against the retired SC judge, although fair reporting of court proceedings was allowed.
On March 26, 2014, Amicus Curiae in the case Fali S Nariman in the case had demanded a mechanism to probe sexual harassment charges against serving and retired judges.
It is pertinent to mention here that the Inquiry Committee formed for impeachment of Justice S.K Gangele had not only absolved him from the charge of sexual harassment but also highlighted the seriousness of the allegations and their impact on the judiciary as a whole. The report stated:-
“An allegation of misbehaviour against a sitting judge of a Constitutional court has a cascading effect on the reputation of the judiciary as a whole. Such an allegation cannot be accepted ipso facto merely relying on the version of the complainant in the absence of strong evidence or probabilities consistent with natural human conduct proving the allegation.”
Further, it was highlighted that allegations against sitting high court judges, which may result in impeachment, need to have a higher standard of proof than usual. “We are conscious that normally sexual harassment does not happen in public view and it is difficult to adduce any independent evidence. But impeachment proceedings cannot be equated to a departmental proceeding to adopt the standard of proof of “preponderance of probability” The present proceedings being an impeachment proceeding for the removal of a High Court judge, a higher degree of proof is required.”
The Committee relied on witness accounts and video recordings provided by the respondent judge, as well as the delay in reporting of incidents, to conclude that the charges of sexual harassment could not be proved. The report prepared by the Committee was tabled in the Rajya Sabha, as required under Section 4(3) of the Judges(Inquiry) Act, 1968, on December 15, 2017.
On the contrary, in Moti Lal Vs. State of M.P, (SC P(Cri) No. 4751 of 2006), learned judge, Dr Arijit Pasayat, on July 15, 2008, had ruled: in the Indian Setting refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. A girl or woman in the tradition-bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracised by the society and when in the face of these factors the crime is brought to light, there is an inbuilt assurance that the charge is genuine rather than fabricated….corroboration is not the sine qua non for conviction in a rape case.” The judgement further reads, “…. In a given case even if the doctor who examined the victim does not find the sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix…. In the instant case, the suggestion given on behalf of the defence that the victim has falsely accused does not appeal to reasoning. There was no apparent reason for a married woman to falsely implicate the accused after scathing her own prestige and honour…. The socio-economic status, religion, race or creed of the accused or the victim are irrelevant considerations in sentencing policy.”
The same approach was adopted by the Supreme Court in State of Maharashtra vs. Chandraprakash Kewalchand Jain, 1990(I) SCC 550 and in the State of Himachal Pradesh vs. Asha Ram, AIR 2006 SC381.
One feels lamented to find the legal extortion in the name of women empowerment, basically, a Western concept, accelerated by NGOs in India for their self-promotion. Almost 49 laws already exist in our country for the protection of women and are not gender-neutral. There is no law protecting men from domestic violence.
Article 14 says that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 15 says, the State shall not discriminate against any citizen on grounds of religion, race, caste, sex, place of birth or any of them. Protection of law to women has been given to the extent that her name is not mentioned anywhere throughout the process of legal action. Whereas, the name of the person holding the highest Constitutional seat is dragged by Tom, Dick and Harry.
This manifestly indicates that a person of a particular sex is dignified but the person of the other sex irrespective of his status is not dignified.
Judiciary has played a pro-active role in developing biased laws, rules and judgements, out of social pressure. Criminal Amendment Act, 2013, is one such example. The enactment of the law has its driving force from public outcry. This law was initially devised at Raisina Hill, subsequent to massive public protests relating to Delhi gang-rape case in 2012.
The government adopts many methods to disperse the protesting crowd boiling with utmost anger. One such way government devised was the formation of Justice Verma Committee to pacify and disperse the crowd. As such, the Criminal Amendment Act,2013, was driven by the crowd at Raisina Hill; hastily drafted by Justice Verma Committee and simply approved by the government. The law besides being gender biased has multiple technical flaws which need a separate debate.
Another appeasement law was made as Sexual Harassment of Woman at Workplace (Prevention, Prohibition, Redressal) Act, 2013. However, the two parts of the law on the same subject matter have put the government in a quandary as to whether to treat it as a criminal offence or a civil wrong. The amendment in the relevant sections of the Indian Penal Code defines sexual harassment to women as a criminal offence and provides for three-year imprisonment. Whereas, in contrast to the above, the Sexual Harassment to the Women at Workplace Act, 2013, provides penalty and departmental action. The law also provides options to the women to either withdraw the complaint and settle the matter amicably within the organisation or else the woman may complain to the police. What is the rationale behind the two contradictory laws applying on one offence?
As such, except appeasement policy and social pressure, there was no need to enact sexual harassment law additionally, when there are already provisions in the Indian Penal Code to deal with the offences of rape, molestation, etc. If the place of offence is the criteria, will the government now enact laws about sexual harassment of women in a train or in a market or in an agriculture field. The IPC provisions alone would have been sufficient to prevent and prosecute sexual harassment irrespective of the place of the offence.
Expressing his views learned advocate and renowned author Yawer Qazalbash said that even in cases of consensual encounters, often complaints are launched by women for a variety of reasons and courts are not inclined to listen to the accused person as if there was a presumption of the law of guilt of accused, because of the created general hype and norms set during recent past decades. The approach towards rape, law and its variations had changed since Justice Arijit Pasayat had held that conviction can be based on single testimony of the prosecutrix, irrespective of any corroboration from any quarters.
Qazabash further said, “The complainant in the instant case could have filed a writ instead of sending her complaint to 22 judges of Supreme Court, but it was the easiest way to scandalise the highest institution through such a frivolous complaint by a woman when vested interest are prowling to make efforts to diminish the legitimacy of the institutions worthy of respect and dignity.
Driven by the sentiment for providing more and more empowerment to women basically a western concept, the legislature has been making gender biased laws after laws without considering its misuse. Now a new question is frightening the common men; when the highest Constitutional authority can be falsely implicated, what is next in store for them?
Renowned lawyer Navin Jaggi and his associate Aakriti Singh said that in their view trial by media and others amounts to contempt of court as we cannot simply hide the fact that the man being accused by woman staffer holds the highest Constitutional post which has to be respected. As such, all who have written, spoken through print, electronic and social media unnecessarily against the CJI need to be punished. When the case is going on in court, the law will take its own course. Who are we to interfere in the proceeding of the court and dictate our comments. It is highly mischievous on part of the newspapers, electronic and social media to conduct an independent investigation into a matter and then make a prejudiced publication of it, while the proceedings are going on in a court of law. Such publication, whether it tends to prejudice the accused or the prosecution, should be prevented at all costs as it tends to interfere with the proceedings of the court of justice.
The major effects of media trial are well substantiated by the trial of Oscar Pistorius for the murder of his girlfriend Reeva Steenkamp, who was turned into a number one public enemy by the media. The serial trial exposed the grave miscarriage of justice and led to a hate campaign against Oscar and his family, which continues till date. The bail hearing and trial court of Oscar Pistorius with the help of Twitter made it extremely difficult to protect the dignity and privacy of the witnesses in the criminal trial. Every detail of the proceedings was being ‘live tweeted’ by the journalists, leading to widespread ridicule on social media, thus aiding the hate campaign against Oscar Pistorius.
Talking to Lawyers Update, Ritwik Bisariya, vice president of Men Welfare Trust, operating under the aegis of Save Indian Family Movement said, that the Indian law is based on the principle of equality, guaranteed by the Constitution of India for all citizens irrespective of caste, creed and gender, etc. However, unfortunately, with the advent of gender-based hatred propagated by West-funded feminist organisations, India has forgotten that commitment. Legislators have made a large number of gender biased laws in favour of women. Even the judiciary presume all men accused by women as criminals from day one. Even the murder accused is considered innocent till his guilt is proved but it is not in the case of men accused by women as from day one he is labelled as criminal.
“Our movement is trying hard to convince the government and the judiciary to make all laws gender neutral. When the courts had ceaselessly been passing judgements in favour of women, little they knew that a day will come when these gender bias will hit them also. The gender-biased laws are destroying the Indian families,” said Basariya.