The SC Molestation Case: Changing The Narrative ?

There is a tendency in India for all powerful public figures to allege a "conspiracy" whenever they are charged with any wrong doing. The Chidambarams do so when they are enquired into in the Aircel-Maxis case, the PM when he is accused of irregularities in the Rafael deal, MJ Akbar when he is called out for giving interviews in his underwear, Kamal Nath when his aides are caught with crores of unaccounted lucre. The CJI has just added himself to the list.

Most of my friends (a list getting shorter every year by natural attrition, Alzheimers and my insistence that Sunny Leone and not Narender Modi is God’s gift to India) frequently assure me that I am not as stupid as I look. Notwithstanding the back handed compliment, however, I am unable to make any sense of the goings on in the sexual molestation charge against the CJI, Mr. Ranjan Gogoi. There are well established laws (mandated by the Supreme Court itself) and precedents to take care of such cases. Why then is the whole narrative being changed  to treat it as a conspiracy against the judiciary and the CJI  rather than what it is: an apparently well documented and easily verifiable complaint of sexual impropriety?

There is a tendency in India for all powerful public figures to allege a “conspiracy” whenever they are charged with any wrong doing. The Chidambarams do so when they are enquired into in the Aircel-Maxis case, the PM when he is accused of irregularities in the Rafael deal, MJ Akbar when he is called out for giving interviews in his underwear, Kamal Nath when his aides are caught with crores of unaccounted lucre. The CJI has just added himself to the list. Apart from anything else this betrays a hubris of monumental proportions- why should he equate himself with the honoured institution of the Supreme Court? Like all other judges he is a bird of passage: the Court was there before him and will be there long after he has hung up his wig and gown. The junior assistant was not complaining about the Court but about him. He is not the court, the institution is much bigger than him.

Supreme Court of India

The conspiracy dimension was raised by the CJI himself when he stated that the accusations were meant to “deactivate” his position. And from hereon the entire focus is being sought to be shifted from the sexual imputation to the ” undermining the judiciary” narrative. It has found support from a lot of strange characters who have nothing to do with the case and have clearly jumped the gun: the Registrar General, the Attorney General, Solicitor General, the indefatigable Mr. Jaitley, the President of the Bar Council of India, and a hitherto unknown lawyer who has emerged from the woodwork at just the opportune moment to allege that he was offered a huge bribe to implicate Mr. Gogoi in a sexual molestation case.

I am no legal eagle and can’t tell a habeas from a corpus but even my sub par IQ tells me that this case has too many coincidences and unanswered questions for it to be glibly dismissed as a plot against the CJI. As a concerned layman here are the ones that bother me:

* Whatever prompted Mr. Gogoi to throw caution and the law to the winds and hold that unusual hearing on the 20th ? By doing so he converted what should have been handled administratively under the Vishakha and the court’s own internal guidelines into a judicial hearing.

* Even this hearing was conducted in an irregular manner on various counts, as many legal luminaries have pointed out: no notice was issued to the complainant, it was held ex-parte; Mr. Gogoi made every effort to vilify the complainant and criminalise her character even though she was not present to defend herself; he flouted the very essence of justice and fair play by repudiating the basic principle ” nemo judex in causa sua” (nobody should be a judge in his own cause); he presided over the bench but his signature does not appear on the proceedings.

* The three judge committee nominated by Justice Bobde to inquire into the lady’s complaint violated the Vishakha guidelines of the court itself: the guidelines state that the majority of members should be women, but initially only one was nominated against two gentlemen. Thankfully, this has now been rectified when the complainant objected.

* This committee is even otherwise flawed: it is a basic principle of administrative enquiries that those doing the inquiry should not be junior to the person being enquired into- in this case they are all junior to the CJI and very much under his administrative influence. Would it not have been better, and more credible, to have set up a committee of distinguished retired judges/ jurists as some elements of civil society had demanded? 

*  This committee’s rules of process do not ensure a level playing field for the complainant. She has been prohibited from taking the assistance of a lawyer during the hearings. Even though her adversary is a sitting Chief Justice with 40 years of legal experience and acumen! Nothing could be more unequal or more prejudicial to her rights. She has to be allowed a legal counsel at all times.

* And here are some of the amazing coincidences in this case:

         – The complainant had a consistently good record of service but suddenly after the alleged incident (October 2018) she was found to be so incompetent as to merit dismissal from service.

         –  In my 35 years in govt. service I have never come across a case where an employee was summarily dismissed for availing a day’s casual leave without authorisation! In fact, the reverse is the norm: people usually first avail unsanctioned leave and then get it regularised! Why this overkill? How fair were the disciplinary proceedings against her, and what were the reasons for imposing such an excessive punishment on her?

         –  It is intriguing that the complainant’s travails all started AFTER the alleged incident, and that her family was suddenly found to be a criminal one: not only was she dismissed but so also were her husband, her handicapped brother and brother-in-law in quick succession. An old case of dispute between neighbours (which was compromised amicably in writing) was dug up years later and the whole family arrested. A criminal case of accepting a bribe was registered against her in January 2019 and she was again sent to jail. She is out on bail currently, but – surprise! surprise!- the police are now asking for her bail to be cancelled.

         – Why and how did a lowly SHO have the temerity and gall to take her to the CJI’s house to make her apologise to Mrs. Gogoi ? [This is one of the allegations made by the complainant but it can be easily verified from the movement register in the Tilak Nagar police station/ visitor’s register in the CJI’s residence. The lady claims she also has a taped video of the relevant conversation with the SHO.]

         – How does one explain the extraordinary claim that the complainant ( a lowly junior Assistant) and her husband were issued a special pass for the CJI’s swearing in ceremony at Rashtrapati Bhavan, or that her physically challenged brother was appointed in the Court from the CJI’s discretionary quota? 

These questions and coincidences cry out for answers and explanations. For, at first reading, this chain of actions does lend credence to the assumption that the complainant and her family were singled out for special attention. The lady’s allegations are far more detailed than what is usual in sexual molestation cases, and each one is easily verifiable. The circumstantial evidence about her “victimisation” could also be a matter of record with the SC Registry and the Delhi police. That is why it would be wrong and dangerous to treat the matter primarily as a conspiracy against the CJI. It is eminently possible that Mr. Gogoi is completely innocent, but this cannot be certified by he himself: only an independent, unbiased, time bound inquiry based on fair legal principles and not on emotions or jingoism, can determine the actual facts in the case. 

Unfortunately, as I’ve said earlier, the narrative is subtly being sought to be changed, with greater emphasis being placed on the perceived threat to the judiciary by “fixers”, rather than on the woman employee’s complaint. The lawyer from the woodwork, Mr. Utsav Bains, has categorically stated in his affidavit that this molestation charge against the CJI is part of the conspiracy to demean him and to get him to resign. In other words, he has alleged a nexus between the two cases. Therefore, the logical thing to do was to order an enquiry into the woman’s charges, wait for its finding and only then decide the course of action on Mr. Bain’s accusations. For, if the woman’s charges are proved to be true and Mr. Gogoi is held liable for inappropriate behaviour, then Mr. Bain’s case collapses on its own. If, on the other hand, the employee’s complaint is determined to be false and mischievous then the whole weight of the law should be brought to bear upon unravelling the conspiracy. Right now the second inquiry is premature, hasty and will serve no purpose other than misdirecting the focus away from the molestation aspect and branding the poor woman as a conspiracy suspect.

There are far too many permutations and combinations in this case. Both the charges- the lady’s and Mr. Bains’- could be false or both could be true, or one could be false and one true. If it is the first then severe and exemplary action should be taken against both. If it is the second then the Court is in serious trouble, but merely because a conspiracy against the Court is established is no reason to assume that the employee’s charges are mischievous and untrue: that has to be established on its own merits, as hopefully Justice Bobde’s panel will do. The danger lies in playing one accusation off against the other-each should be examined independent of the other. Both are equally portentous for the future of the judiciary.  

Finally, the Hon’ Justices of the Court should be wary of the unsolicited and over hasty support of the government  and its law officers, even before the facts have been adjudicated on.  Mr. Jaitley’s role here is that of the wolf in the Little Red Riding Hood fable. This govt. does not serve free lunches and an invite to its table could be an even bigger threat to the independence of the judiciary than the complaint of a junior employee.

Avay Shukla retired from the Indian Administrative Service in December 2010. He is a keen environmentalist and loves the mountains. He divides his time between Delhi and his cottage in a small village above Shimla. He used to play golf at one time but has now run out of balls. He blogs at http://avayshukla.blogspot.in/

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