How Can the Harassment Claims Against CJI Gogoi be Investigated?

The internal complaints committee of the Supreme Court – the GSICC – can’t investigate sitting or retired judges.

The allegations of sexual harassment against Chief Justice of India Ranjan Gogoi sent shockwaves through the legal community, as did the manner in which he addressed them.

In a move termed a violation of procedural norms and propriety by several lawyers, the CJI conducted a special hearing of the Supreme Court on Saturday, soon after the allegations broke, in which he addressed the allegations while being part of the bench. Rather than simply deny the allegations, he also claimed that they are part of a larger conspiracy to “deactivate” him.

But what happens now? Will an internal complaints committee (ICC) investigate the claims of sexual harassment as is required by law generally? Who would be on that committee? Or is the matter over now that the court has conducted a hearing in which the allegations were rubbished?

Here’s what we know.

Supreme Court Has an ICC, but This Case Can’t be Heard by It

In 2013, the Supreme Court created a set of regulations to deal with gender sensitisation and sexual harassment of women at the court, following the enactment of the Sexual Harassment of Women at Workplace Act 2013. These regulations led to the setting up of a committee to achieve these goals called the Gender Sensitisation and Internal Complaints Committee – the GSICC for short.

According to the regulations, the GSICC is supposed to “fulfill a very public function of sensitizing the public to gender issues and to address any complaints made with regard to sexual harassment at the Supreme Court precincts.” The Supreme Court precincts include any area under the control of the CJI, so should therefore apply to the residence of at least him, if not other judges.

This should mean that the woman who has alleged sexual harassment and intimidation by the CJI should be able to file a complaint against him with the GSICC, and the committee should then be able to investigate the matter and pass appropriate orders.

However, it is not clear if the GSICC has the authority to investigate complaints against sitting or retired judges of the Supreme Court. This is not expressly written anywhere in the 2013 regulations or the 2015 guidelines on its operation, but appears to be the case upon a reading of the relevant procedures for addressing complaints against Supreme Court judges and the scheme of the 2013 regulations.

This was the position taken by senior advocates Fali Nariman and PP Rao in 2014, when they were asked to conduct a review of the regulations by the court. According to them, the regulations did not extend or apply to either sitting or retired judges of the apex court (see for instance this report from the time in Live Law).

They recommended that this needed to be urgently addressed as “no matter how high the judges are, they are definitely not to be treated as immune from charges of sexual harassment of women at workplace.”

Looking at the regulations as a whole supports this view since everything under the regulations goes through the CJI, whether it’s the establishment of the GSICC, certain forms of action, and enforcement of the orders of the GSICC. At the very least this indicates that the GSICC will not be able to tackle inquiries into the actions of the CJI, given the involvement of the CJI in the whole process.

On top of this, there’s the Supreme Court’s In-House Procedure from 1999, which covers how complaints of any kind of misconduct against judges of the Supreme Court or high courts are to be inquired into. To ‘preserve the independence of the judiciary,’ such complaints can’t just be taken up (note also Section 197 of the Code of Criminal Procedure which requires sanction for investigation of public servants) and must be routed through the Chief Justice of India, who has to authorise any inquiry.

However, there is no procedure specified for what happens if the CJI is the one against whom the complaint is made, as in this case.

So is the CJI Immune to Investigations Into Misconduct?

The CJI doesn’t have immunity from investigation and punishment – the law, including the Sexual Harassment of Women at Workplace Act 2013 (SH Act) still applies to him. However, he is effectively insulated from an inquiry thanks to the way in which the procedural steps for an investigation are to be taken.

The only situation where the Chief Justice could be overridden is if Parliament decides to go down the impeachment route – which is unlikely to be followed in this case with the government coming out in support of the CJI, and because even if the process was initiated, it would not be completed before he retires.

Any investigation after his retirement would require sanction of the next CJI (Justice SA Bobde), which would also be unlikely.

This whole situation demonstrates the glaring loopholes that exist in the system and the law as it stands. The In-House Procedure should have a system to make complaints against the CJI, the 2013 regulations should have been amended after Nariman and Rao’s recommendations, there needs to be an alternative system of disciplinary action against judges apart from impeachment.

Are There Any Options to Investigate the CJI?

But do these loopholes mean no action can be taken against CJI Gogoi?

This isn’t necessarily the case. The SH Act, a Parliamentary legislation, cannot be ignored because of the In-House Procedure, which has been created by the Supreme Court itself and doesn’t technically have the status of a law.

• Which means that the relevant Local Complaints Committee under Section 6 of the SH Act (which have to be set up in each district) can inquire into the complaint. However, as this would include administrative officers of a far lower rank, this would likely be fruitless.
• Alternatively, the ‘full court’ of the Supreme Court (ie all the judges sitting together) could call for an investigation to be conducted into the matter by a special committee made up of retired judges of the court. They could also ask the GSICC to look into the matter on a preliminary basis at least.
• Another possibility is for the next most senior judge of the Supreme Court, Justice Bobde (alone or in consultation with the other three senior judges of the Collegium), to appoint a special committee or ask the GSICC to investigate the allegations.

One problem, however, is that the latter two options are not formally written into law, and require a generous interpretation of the laws on sexual harassment and the procedures applicable to the courts – which means, for instance, that a writ petition of mandamus, for instance, couldn’t be used to ensure the investigation takes place on those grounds.

The complainant in the case has asked for an investigation by retired SC judges, and sent her affidavit with a covering letter to the other judges of the court, indicating she seems to be hoping for Option 2.

Is the Court Contemplating These Options?

The apex court, however, has made no steps towards taking up this option, or any other option for that matter.

On Tuesday, a three-judge bench of Justices Arun Mishra, Rohinton Nariman and Deepak Gupta (no women judges were included, even Justice Indu Malhotra who heads the GSICC), decided to examine an affidavit filed by a Supreme Court advocate which claims the allegations are part of a plot to frame the CJI and issued notice asking him to appear before them. The bench made no mention of taking up the complainant’s affidavit.

Reports emerged on Tuesday that the CJI had a discussion with Justice Bobde where he may have asked Justice Bobde to consider how to take the matter further. The two judges did have a meeting together, though what exactly was decided is unknown at this point.