When ‘Justice’ Uses Power Play Instead Of Fairness, How Can We, The People, Trust You?

Posted: April 22, 2019

CJI Ranjan Gogoi has been accused of sexual harassment by a junior court officer, and made himself part of the “investigation” of the case, defeating its very purpose. How can we trust such a judiciary?

Two weeks ago, a survivor reached out online, and we talked about the options she had. Nothing about her case was easy to handle – as is the situation with all cases of gender-based violence – and the legal redress she had was undoubtedly what the law could offer “at best.” The path between her and seeking redress was fraught with everything from shaming and hate, to downright malicious power play and the potential of losing everything she had worked hard to accomplish. That a survivor will be given a fair hearing is a question. That a survivor is given the chance to speak up before an impartial panel comprising people with no vested interest or connection to the accused is a question. That a survivor will receive justice, then, is automatically a question.

After our conversation, I sat quietly for some time, wondering at the shoddy state of the “system.” Filled with structural violence, this institutionalization of patriarchy has allowed for more and more non-cis-het male gender identities to find themselves elbowed out. It is hard to find a safe space that remains safe. It is hard to find support that continues along the path unconditionally until justice is achieved. I wanted to find hope, desperately, and feverishly.

But today, it feels like even that desire to find hope has been trampled upon.

The accused playing judge

The Chief Justice of India, who sits at the Supreme Court – holding the supreme position in the judiciary in the highest court in the and – himself has flouted the basic substance of justice. For those that are not familiar, Chief Justice Ranjan Gogoi was accused of sexual harassment by a woman who worked as a junior court assistant at the Supreme Court of India. She wrote an affidavit addressed to 22 judges of the court on April 19, reducing her allegations of sexual harassment into writing. The incident itself took place on October 10 and 11, 2018. (I won’t go into the details of the incidents of sexual assault because they are / can be triggering.)

Once the case came to light, the Chief Justice constituted a bench himself, to investigate the case, and made himself part of it to “consider” the case. By law, as the accused, he neither had any right nor any legal authority to be part of the investigation. If anything, he had to be investigated. In doing so, the Chief Justice made himself the judge, juror, and executioner. The group of judges investigating the matter went on to shame the survivor, assassinate her character, and then reduce to writing a decision authored by the Chief Justice himself (but of course, the man did not write his name down), calling the entire set of accusations as “cooked up” and “mischief.”

When ‘justice’ itself is in the dock

I cannot, and will not go into the merits of this case because it is not my place to play a judge. What I will share, in this article, is a note on how there is an absolute disrespect for justice, for protocol, and for appropriate respect for legal rights. What the Chief Justice did in the “investigation,” then, is up for discussion in this article – nothing more, nothing less.

This is a brazen disregard for justice and a terrible and egregious failing on part of the highest judicial authority in the country. The judiciary has a non-negotiable duty to uphold the core values of the Constitution of India – which is non-verbally acknowledged in the Right to Life under Article 21.

Natural justice itself comprises two key principles: the right to a fair hearing (audi alteram partem = hear the other sideand the rule against bias (nemo judex in causa sua = no man can judge his own cause). This is the very fount of justice, in that every individual, regardless of their standing, is entitled to the enforcement of this right.

When the highest judicial authority in the country thinks nothing of the defenestration of procedure, thinks nothing of flouting the very edifice on which the institution he represents is built, and thinks nothing of the law that he has been sworn to uphold and respect, show true faith and allegiance to the Constitution of India by law as established, is nothing shy of deplorable.

When those in power use it to silence women

It speaks volumes to the extreme struggles survivors face in reporting sexual violence. Even before the merits of the case are investigated, those with vested interest and enough power in their hands are able to make use of their power to quash these women for speaking up.

This is not new by any stretch of imagination: think of Chinmayi and what she’s facing for speaking out against Vairamuthu, think of Tanushree Dutta and what she faced for outing Nana Patekar. I could go on, but you (hopefully) get the picture. A few years ago, a young woman spoke up about how Justice AK Ganguly had molested her. The backlash that followed was tremendous – and the judge himself was indicted by a committee, which had agreed with the young woman’s allegation that he had subjected her to “unwelcome sexual behaviour” during her internship with him in December 2012. By then, he had retired, and the committee ruled that he wouldn’t face further proceedings before the Supreme Court. He was, however, acquitted of all charges after the intern stopped short of recording her statement before the police.

The Supreme Court was the first “author” of the laws against workplace sexual harassment in the Vishaka judgment. In the 22 years since the judgment has passed, India’s #MeToo movement brings up astounding numbers of cases, even as Bhanwari Devi – whose case led to the Vishaka judgment – still waits for her perpetrators to be caught. Shouldn’t the Supreme Court be the vanguard of endorsing its own decisions through appropriate action? What is the point in rapping the knuckles of State Governments for not setting up local complaints committees if they don’t know what it is to implement their own ruling?

A few months ago, I remember berating to a friend about Alok Nath playing the role of a judge in a film that addressed the me too movement. We talked about how distasteful the whole idea was – hoping that the real judiciary wouldn’t be caught with its hands tainted.

Oh, the irony.

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