CJI harassment case: Two advocates write open letter to Bar Council, condemn its support for Gogoi

Two Supreme Court advocates on Monday wrote to Bar Council of India Chairperson Manan Kumar Mishra, criticising the organisation’s support for Chief Justice of India Ranjan Gogoi, who is facing allegations of sexual harassment. Lawyers Gautam Bhatia and Ashish Goel also criticised the manner in which the top court dealt with the allegations during a hearing on April 20.

The lawyers said that according to the Supreme Court’s procedures, an in-house committee should have been set up to inquire into the incident. However, the chief justice used his administrative powers to immediately constitute a special bench, which included himself. “What ensued on Saturday morning in the Supreme Court is nothing short of a travesty of justice,” they added.

While Gogoi vilified the complaint, both Attorney General of India KK Venugopal and the Solicitor General indulged in character-assassination of the complainant, who was not given notice of the hearing, the advocates said.

“Shockingly, you, as the chairman of the Bar Council of India, have endorsed what happened in the Supreme Court on Saturday morning,” the lawyers said. “You have been quoted by PTI as saying: ‘These are all false and cooked-up allegations and we condemn these kinds of acts. These kinds of allegations and actions should not be encouraged. This is an attempt to malign the institution. Entire bar is standing in solidarity with the Chief Justice of India’.”

The lawyers said that on the contrary, Mishra does not represent their views about the matter. “Through this letter, we, as members of the legal profession, unequivocally condemn and distance ourselves from the unconstitutional stand taken by the Bar Council of India in the instant case,” they added.

Open Letter to the Bar Council of India

To the Chairman of Bar Council of India

April 21, 2019

Respected Sir,

There is nothing more pivotal to the Indian democracy and to the Indian Constitution than the rule of law. And the very essence of rule of law is that the law of the land is above everyone, including the judges of the Supreme Court of India.

The manner in which the Supreme Court dealt with the allegations of sexual harassment made against the sitting Chief Justice of India (CJI Ranjan Gogoi) by a former woman employee of the Supreme Court deeply undermines the foundations of our Constitution and flies in the face of the rule of law.

According to the Supreme Court’s “In-House Procedure” that sets out procedure to deal with allegations of sexual harassment, an Inquiry Committee must have taken cognizance of the complaint and initiated inquiry proceedings after giving notice to the respondent (the CJI in this case).

However, that did not happen. Instead, the CJI, in exercise of his administrative powers, constituted a “special” Bench of his choosing (including himself) to respond to the allegations. What ensued on Saturday (April 20) morning in the Supreme Court is nothing short of a travesty of justice.

The CJI used his constitutional office to respond to and deny personal allegations of sexual harassment in the open court, made oral remarks vilifying the complainant, termed the allegations a high-level conspiracy against the judiciary, and discreetly attempted to silence the media. Both the Attorney General and the Solicitor General indulged in character-assassination of the complainant. And all this was done in the absence of the complainant, who was not given any prior notice of the hearing.

Shockingly, you, as the Chairman of the Bar Council of India, have endorsed what happened in the Supreme Court on Saturday morning. You have been quoted by PTI as saying: “These are all false and cooked-up allegations and we condemn these kinds of acts. These kinds of allegations and actions should not be encouraged. This is an attempt to malign the institution. Entire bar is standing in solidarity with the Chief Justice of India.”

As lawyers, we are deeply concerned about preserving and facilitating the cause of justice and protecting the very democratic and constitutional ideals that we profess and stand for. We feel compelled to write to you to say that you, as the Chairman of the Bar Council of India, do not represent the views of the bar in the instant matter, and most certainly, do not speak for the undersigned lawyers.

Without commenting on the merits (or otherwise) of the allegations made against the CJI, we believe (and we hope there are many other lawyers who concede) that a high-powered independent inquiry must be held to look into the allegations to maintain the credibility of the institution and repose public trust in the judiciary. Through this letter, we, as members of the legal profession, unequivocally condemn and distance ourselves from the unconstitutional stand taken by the Bar Council of India in the instant case for reasons outlined below.

1. Two basic principles are central to the doctrine of natural justice. The first is “no man shall be a judge of his own case” and the second is “hear the other side”. The CJI has shown disregard to both these principles. Under no circumstance should the CJI have been a part of the Bench, nor should he have used his constitutional office to respond to personal allegations of sexual harassment

2. The CJI should have promptly referred the complaint to the Supreme Court’s Internal Complaints Committee, headed by Justice Indu Malhotra. In not doing so, the CJI has exhibited disdain for an independent inquiry upon the allegations of sexual harassment made against him

3. Judicial independence does not imply freedom from accountability. The allegations of sexual harassment, made in a sworn affidavit with specific details, cannot be conveniently dismissed as being “wild”, “scandalous”, or politically motivated.

In light of the above, we urge you to withdraw your comments as a mark of respect and honor to the fundamental principles and norms of our constitutional democracy.

One of the primary functions of the Bar Council of India is to promote and support law and judicial reform, not impede it. The Bar Council of India must be mindful of its true purpose and existence.

(Note: We have learnt that The Women in Criminal Law Association (WCLA) have issued a statement demanding fair inquiry into the sexual harassment allegations against the CJI. We endorse and adopt the stand taken by the WCLA.)

Yours sincerely,

Ashish Goel, Lawyer
ashish.g@nujs.edu
Enrolment No: D/1333/2012

Gautam Bhatia, Lawyer
gautambhatia1988@gmail.com
Enrolment No. D/2290/2012

‘False, fabricated’ allegations

The Supreme Court Employees Welfare Association, in a statement on Monday, came out in support of Ranjan Gogoi. It said the allegations against the chief justice were “false, fabricated and baseless”.

The association alleged that the allegations were aimed at maligning the court. “In this hour of time, the entire staff is united and stand firmly with the Hon’ble Chief Justice of India to defeat the malicious attempt of external forces to target the Indian judiciary,” it added.

‘Procedural impropriety’ during Saturday hearing

The Supreme Court Advocates-on-Record Association expressed its “deep reservation against procedural impropriety shown by Justice Ranjan Gogoi” during the special hearing on Saturday. The organisation said the allegations need to be dealt with according to established procedure of law and must be applied in each and every case uniformly.

The association sought the “immediate appointment of a committee headed by full court of Supreme Court to impartially investigate” the allegations and submit its independent findings.

‘Proceedings on April 20 violated the law’

The Executive Committee of the Supreme Court Bar Association, meanwhile, said the procedure adopted by the chief justice of India to conduct proceedings on April 20 was in violation of procedure established by law.

“The EC [Executive Committee] further resolves and requests the Hon’ble Full Court of the Hon’ble Supreme Court to take all such necessary steps as may be required in law in this regard,” it said in a statement. “The EC further resolves that without prejudice to any enquiry which may be initiated as above, it shall collate all the materials and facts with regard to the said allegations from social media, electronic media, print media and other available sources, which may be considered in its next meeting.”

The case

A 35-year-old woman who used to work as a junior court assistant at the Supreme Court of India wrote to 22 judges of the court on Friday, April 19, alleging that Gogoi had made sexual advances on her at his residence office on October 10 and 11 in 2018. In the affidavit, the woman said that after she rebuffed the chief justice, she was moved out of his residence office, where she had been posted in August 2018. Two months later, on December 21, she was dismissed from service. One of the three grounds for dismissal, as detailed in the inquiry report, was that she had taken casual leave for one day without approval. She has alleged that her family is being persecuted after the incident.