What you need to know about the ‘fixer conspiracy’ against the CJI – and questions about his conduct

From sexual harassment charges against the Chief Justice to judges expressing concern about the institution being destroyed, this has been an eventful week for the Supreme Court of India. What began as allegations of harassment and abuse of power against Chief Justice Ranjan Gogoi has expanded into much more, from questions about process and judges using the bully pulpit to an investigation into fixers who allegedly are trying to use money power to influence the court.

Here is a quick breakdown of what we know:

First, read our explainer from Monday, which summarises the sexual harassment charges against Chief Justice Gogoi as well as the alleged abuse of power subsequent to that, and then the court’s much-criticised special hearing on Saturday.

Since then the story has split into a number of angles, that are worth tracking separately.

The Sexual Harassment case

First there is the original allegation itself. A former court staffer accused Chief Justice Gogoi of sexual harassment and then abuse of power, with claims that, after she rebuffed the judge’s advances, she and a number of other family members lost their government jobs.

The woman put all of the details of her ordeal in an affidavit that was then sent to 22 judges of the Supreme Court, aside from Gogoi, demanding a committee of senior retired judges be set up to inquire into them.

Apparently with the consent of a full-court meeting, however, an administrative inquiry was set up with three current members of the court: Justices SA Bobde, NV Ramana and Indira Banerjee. This panel then sent a notice to the woman asking her to appear before them.

In response, the woman wrote a letter bringing up a number of questions. She pointed out that on a number of occasions it seemed as if her case had already been pre-judged, including by Justice Ramana who was quoted in the media as saying that her allegations were part of attempts to control the judiciary. She also said that according to the Supreme Court-formed Vishakha guidelines to investigate sexual harassment claims, a panel needs to have a woman head, be composed of more than 50% women and needs an external member.

On the following day, Justice Ramana recused himself from the panel, though he also wrote a letter that the Times of India described as “trashing” the woman’s claims of improper conduct from the court. Justice Indu Malhotra replaced him.

This panel will now look into the sexual harassment charges.

Many have raised questions about this panel, with perhaps the most pertinent being the question of how current judges of the court can freely look into the allegations:

• “Chief Justice Gogoi continues to preside over the highest court of the land and exercises administrative and supervisory control over all the likely witnesses and participants in the inquiry,” writes S Devika in the Wire. “An investigation should be done in accordance with the law laid down by the Supreme Court with the participation of retired and eminent former judges, jurists and rights activists.”
  

The conduct of the court

On occasion after occasion, responsible people and organisations appeared to have prejudged the matter, with judges and others making comments that have raised eyebrows about how this case is being dealt with.

On April 20, when the Chief Justice himself assembled the “special hearing” on a matter of “great public importance touching upon the independence of the judiciary”, all the judges on the bench included Gogoi himself called the allegations “wild and scandalous” and baseless. The Secretary General of the Supreme Court also earlier that day sent a statement to media organisations calling the charges “scurillous”.

Similar comments were made by the Bar Council of India and the Supreme Court Employees Welfare Association, while Finance Minister Arun Jaitley said it was “time to stand up” with the judiciary.

This presumption that a woman had made false allegations of sexual harassment without getting an inquiry or even a chance to be heard has prompted more than a few comments. We collected some of those in the last explainer, but here are a few more:

• Pratap Bhanu Mehta writes that the Chief Justice has sent a message that he is above the law: “Even if he is innocent of the charges, he has displayed gross incompetence and lack of judgment. He needed to have created a mechanism where he was not involved. Worse, his remarks were more petulant than dignified. But more seriously it is he who has compromised the independence of the judiciary by politicising the case.”
  
• Apurva Vishwanath adds a reminder of a similar court crisis a year ago: “Walking in the ominous footsteps of his predecessor CJI Dipak Misra, whom CJI Gogoi and his three other colleagues had publicly criticised by holding an unprecedented press conference for the very same reason that he now indulged in himself – handpicking a bench to denounce allegations against himself.”
  
• Suhrith Parthasarthy summarises the problems with the committee that will look into the sexual harassment charges: “Doubts persist over the committee’s legality, over whether it can at all scrutinise allegations made against the CJI, and over whether its composition lacks a moral base in that no external members have been included.”
• Mihira Sood has suggestions for what the court could have done instead: “The complaint ought to have been taken up by the court’s in-house committee, bypassing the requirement of the CJI’s permission in the circumstances, and ideally, the committee could have set up the special committee required in this case, with a majority of women and retired judges with no known familiarity with the accused, and the in-house committee extending a supporting role to the complainant to balance out the power equation.”
• The Women in Criminal Law Association put out a statement asking a series of questions about what procedure will be followed by the panel that looks into the sexual harassment charges.
  

The conspiracy case

Parallel to these developments were the allegations made by a lawyer named Utsav Bains, who claimed that he had been approached by a fixer to arrange for a press conference attacking the chief justice in the same matter. In a Facebook post he claimed that a “lobby of disgruntled judges and politicians” were behind the conspiracy to bring down the Chief Justice.

Bains then went on to offer several other versions when he actually turned up in court and filed affidavits. In his first affidavit, he dropped the portion referring to “lobby of disgruntled judges and politicians” and said instead that there were “corporate lobbyists and fixers,” even dropping the names of Jet Airways founder Naresh Goyal and wanted terrorist Dawood Ibrahim. Later, in another affidavit, he claimed that the action against the CJI was just involving disgruntled employees of the Supreme Court.

The bulk of evidence he put forward however was in the form of “sealed covers” given directly to the judges.

Over a series of dramatic hearings, Bains made a number of claims, echoed to some extent by the bench. In particular, Justice Arun Mishra at one point said that “the day has come when we have to rise and tell the rich and powerful that you can’t do this! You are playing with fire! We don’t want to take names but everybody tries to influence every time there is a big matter!” and claimed that the institution itself was in danger.

At one point, the bench asked the heads of the Intelligence Bureau, the Central Bureau of Investigation, the National Investigation Agency and the Commissioner of Police of Delhi to meet them in chamber. Questions were also raised by advocate Indira Jaising about the credentials of Bains, who was apparently permitted into the court complex without the appropriate authorisation.

Read recaps of these hearings on LiveLaw and Newslaundry.

Eventually, the bench decided that former Supreme Court Judge AK Patnaik would carry out a judicial inquiry into the allegations that disgruntled employees were part of a conspiracy to frame the chief justice in the sexual harassment case.

As with the other matters, questions are being raised about how this can take place in parallel to the sexual harassment inquiry, since this case itself presumes that the harassment allegations are part of a “conspiracy”.

• Rajeev Dhawan points out that here too, the Chief Justice has sat in judgement over a case in which he himself is a party:

“No person can be a judge in their own cause or hand pick a bench. At best, it could have gone to some other bench without the urgency of a Saturday hearing. Master of the roster or not, I think the proceedings in this writ petition are sufficiently tainted and should be closed.” 

“Regrettably, no analysis can be conducted of the order in In Re: Matter of Great Public Importance Touching Upon the Independence of the Judiciary, as all the affidavits have been placed before the Supreme Court in sealed covers... This post will be updated if and when the sealed covers are unsealed, and sunlight allowed into the corridors of the Supreme Court again.”

Also Read:

What you need to know about the allegations against CJI Ranjan Gogoi – and the ‘special hearing’

Full text: SC must follow procedure on inquiry into allegation against CJI, say women lawyers

‘Preserve neutrality, fairness’: Women lawyers say CJI should not hold office until inquiry is over

Chief Justice of India sexually harassed me, says former SC staffer in affidavit to 22 judges