In A Miscarriage Of ‘Due Process’, CJI Gogoi Given Clean Chit By Probe He Set Up Himself

Posted: May 7, 2019

In a clear travesty of justice, CJI Ranjan Gogoi has been given a clean chit by a 3-judge panel, which he set up himself, to investigate a sexual harassment case against him, and the details will not be made public. What faith should people have in ‘due process’?

“Nemo judex in causa sua.” This was the first legal maxim I learned when I was training to get into law school, way back when I was in grade 12. It means, “No one can be a judge of their own cause.” Simply put, it was a rule against bias of all kinds, where one’s vested interests became a disqualifier in their engagement in deciding on a case.

Since the Chief Justice of India was given a clean chit by a panel that he constituted to investigate a charge of sexual harassment against him last night, this maxim has been jumping about in my mind. The panel comprised three members, Justices SA Bobde, Indira Bannerjee, and Indu Malhotra. They dismissed the complaint on the ground that they found no substance in the allegations in the complaint. Justice SA Bobde indicated that the report was submitted to the Chief Justice and the next senior judge of the Supreme Court of India, and that because it was an informal inquiry, it was not liable to be made public.

In the run up to this outcome, the survivor herself withdrew the case, suggesting that she did not feel like she would get any justice there. Her lawyer was not allowed to the hearing, the committee proceedings were not recorded via audio or video, and she was not given a copy of her statements during the first two sittings which took place on April 26 and 29. Following her withdrawal, the Chief Justice appeared before the panel and went ahead with the inquiry although the complainant had withdrawn her case.

Within the Supreme Court, echoing the concerns that many outside have raised, Justice Chandrachud was particularly concerned with the fairness of the approach. He wrote to the three judges on May 2, indicating that the “credibility of the Supreme Court would be further damaged if they decided to continue with the probe in the absence of the complainant.”

Due process is a fundamental legal requirement. It points to the provision of fair treatment through the normal judicial system and is a sound acknowledgment of a citizen’s entitlement to a hearing before an impartial judge. The rudiments of any judicial approach to investigating a crime must be centred on this as a matter of respect for human rights.

When Raya Sarkar’s list did the rounds, one of the most commonly heard arguments in response was the need to rely on due process. Many voices resisted this argument, specifically pointing at the power dynamics that are involved in most processes and institutional approaches to address workplace sexual harassment. It takes tremendous courage to speak up. But when procedure – read structural violence – is institutionally deployed to silence one who speaks up anyway, there can be no greater disservice than that.

Editor’s note: This is a developing story, and will be updated as more details come in.

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