“Independence of Judiciary” – A Getaway tool used by the Indian Judiciary after violating Natural Justice

Shagun Singhal | National Law Institute University, Bhopal | 21st October 2019

It is analyzed here as to how the “Independence of Judiciary” is being used as a tool by the Indian Judges to get away with the accusations/allegations against them. This shall be done by analyzing the case of Justice Ranjan Gogoi – the 46^th Chief Justice of India.

Events that led to the allegations against Justice Gogoi:

On April 19, 2019, an affidavit was sent by a woman who was also a junior court assistant in the Hon’ble Supreme Court under Justice Gogoi from 1^st May, 2014 till 21^st December, 2018. This affidavit was sent to all the Supreme Court judges in which she alleged being sexually harassed by Justice Gogoi. She stated that the CJI had touched her in inappropriate places and she was further asked for sexual favors. After her denial, Justice Gogoi had asked her to be silent about the incident. He had threatened the former JCA that if she disclosed this incident to anyone, her family would be greatly disturbed. In her affidavit, she had also stated the horrendous incidents that have occurred after this incident which include her services getting terminated in December 2018, suspension of her husband and his brother, both of them who were head constables with the Delhi Police. Her husband’s younger brother who had a job under the D category of the Supreme Court under the Chief Justice’s discretionary quota was also terminated. Further, a frivolous FIR had also been lodged against her accusing her of bribery because of which she was arrested for two entire days. When the Chief Justice got to know about these allegations, he called them “baseless” which were designed to attack and erode the “independence of the judiciary”. He further stated that in the judiciary profession, reputation is all they have and therefore such an accusation was a threat to the judiciary as a whole.

Procedure in which the interrogations were carried on:

Contending a threat to the “independence of judiciary” Justice Gogoi constituted a bench which included himself but not the senior-most judges after him. There were no women judges on the Bench as well. The interrogations demanded the complainant not to share the proceedings with the media. It has also been contended by the complainant that the interrogations demanded a reason for delay of proceedings from her withstanding which there would be “ex-parte” proceedings.

Why wasn’t the procedure justified?

 According to Gender Sensitization and Sexual Harassment of Women at Supreme Court (Prevention, Prohibition and Redressal) Guidelines 2015, the rules on the Constitution of the Internal Sub- Committee state that committee should constitute a fact-finding inquiry, which shall comprise of three members, with a majority being women and one outside/external member.[1] In Justice Gogoi’s case, initially there were two male members and one female member which subsequently changed to two female members and one male member. Thus, by doing so they adhered to the guidelines but even then, the internal committee failed to include any outsiders.

The rules on Receipt of Written Complaint with supportive documents and statement of witness states that the aggrieved woman will be required to file her written complaint either personally or through a volunteer as per Regulation 8 which should be accompanied by all supporting material, evidence, transcripts and statements. It further states that the aggrieved woman shall submit a list of witnesses, along with their affirmed statements and contact details whom she desires to put in support of her case before the Internal Sub-Committee.[2] In the present case, even though the complainant demanded legal representation, she was denied so therefore violating these rules.

The rules on Notice to the Respondent and Submission of Response in Writing state that within seven days of the receipt of a Complaint from the aggrieved woman, the Member secretary shall serve the same along with enclosures on the Respondent. It further states that the Respondent shall be called upon to place his written response along with the supporting material, and list of witnesses within a period not exceeding seven days from the receipt of the complainant.[3]

The rules on Reasonable Opportunity for the Complainant and the Respondent to present their case state that if the aggrieved woman desires to produce any additional material or statement of any witness, which could not be submitted along with the Complaint, the Internal Sub-Committee will permit the aggrieved woman to do so, within such extended time as it deems appropriate. [4] In the present case, this stage wasn’t reached as the respondent heard ex-parte proceedings, Therefore, the complainant was not given a reasonable opportunity to present her case.

The rules on “Inquiry” state that the internal sub-committee shall provide an opportunity to both the parties and their respective witnesses, for an oral hearing and the hearing shall be duly “video graphed”.[5] It also states that the Member Secretary shall give three days (72 hours) advance notice to the aggrieved woman, the Respondent and their respective witnesses before a hearing is convened. Further, if the aggrieved women desire to be accompanied by a volunteer she shall convey the same to the Member secretary. [6] In the present case, both these rules were not followed.

The rules relating to Identity and confidentiality of Proceedings and Records state that notwithstanding anything contained in the Right to Information Act, 2005, the contents of the Complaint made under Regulation 8, the identity and address of the aggrieved woman, Respondent, and witnesses, and any other information relating to the Inquiry proceedings, recommendations of the Internal Sub- Committee, shall be kept confidential.[7]In the present case, the respondent’s identity was known. Therefore, anonymity was not followed.

The rules of interrogation state that the Internal Sub-Committee will not be precluded from taking cognisance of any new fact, or evidence which may arise, during the pendency of the inquiry proceedings, relating to the Complaint. [8] In the present case, even though it did not reach that stage but even after the complainant withdrew from the proceedings, the CJI was called.

The rules relating to Ex- Parte proceedings state that The Internal Sub-Committee shall have the right to proceed ex-parte if the circumstances so warrant. In the event of the Respondent refusing to appear before the Internal Sub-Committee for three consecutive hearings, without valid justifiable ground, the Internal Sub-Committee shall proceed ex-parte against the Respondent on the basis of the material available before it. [9]In the present case, it is alleged that ex-parte proceedings were resorted to give the respondent a clean chit.

The rules relating to “Completion of the Inquiry” state that The Internal Sub-Committee shall take all necessary steps to conduct and complete the fact-finding inquiry within a period of 90 days of the constitution of the Internal Sub-Committee as per Regulation 9(3).[10] In the present case, the enquiry was not completed within the given number of days.

Concluding these, it can be said that the procedure was not followed as per the Gender Sensitization and Sexual Harassment of Women at Supreme Court (Prevention, Prohibition and Redressal) Guidelines 2015.

Is natural justice applicable in India?

The eternal absolute principles of natural justice may be summarized as follows;[11]

1. Opportunity for both the parties to be heard.
2. Hearing before an impartial tribunal so that no man can be judge of his own cause.
3. Decision made in good faith.
4. The party against whom evidence is obtained, must be given an opportunity to contradict it.

The same idea has been expressed by Hood Philipci as well in the following ways;[12]

1. No one shall be a judge in his own cause.
2. The judges deciding are bound to hear the other side.
3. The trial must be in good faith without bias and not arbitrarily or unreasonably.

Further, natural justice has been filtered into the Indian Judicial System as well into the Articles 14, 19 and 21 of the Constitution which protects the individual liberties and rights of civil servants. Article 136 also envisages natural justice. Through this article, the Supreme Court can confer a special leave petition. Some members of the Constituent Assembly have understood it as bringing natural justice within the realm of the Supreme Court. Thus, Shree AlladiKrishnaswamiAiyer said in the Constituent Assembly; [13]

“It is necessary to realize the comprehensive nature and the plentitude of the jurisdiction conferred by the Article 136. The Supreme Court is free to develop its own rules and conventions in exercise of its jurisdiction. There is nothing preventing the Supreme Court from developing its own jurisprudence in such a way that it could do complete justice in every kind of cause or matter” The Supreme Court has observed the notion of natural justice in procedural matters as well. In fact, there are some cases in the Supreme Court applied natural justice as a fundamental basis of its decision. Some of them are summarized as follows;

In the case of P. John v. State of Travancore Cochin,[14] the civil servant concerned was the chief engineer. An enquiry was made against the officer. A copy of report was given to the officer and he was asked to show why he would not be removed from service, and he did not do so. The supreme court held that the opportunity that was given to the officer to show cause was sufficient but Mahajan, C.J observed that all the rules of natural justice were fully observed during the enquiry in this case and the petitioner had the fullest opportunity. This principle was further observed in the cases of Union of India v. T.R. Verma[15] and Khemchanda v. Union of India[16]. Another remarkable application can be observed in the case of Mukhtar Singh v. State of U.P [17] where the division bench laid down that the principles of natural justice are the rules that offer minimum protection of rights against the arbitrary procedure that may be adopted by a judicial or quasi-judicial authority.

In the case of Sangram Singh v. Election Tribunal[18], Justice Bose said,

“A law of natural justice exists in the sense that a party must be heard in a Court of law, or at any rate be afforded an opportunity to appear and defend himself, unless there is an express provision to the contrary, is we think beyond dispute” In the case of Nageswar Rao v. State of A.P. [19] it was objected that the chief minister being a party could not be a judge in his own cause and that the chief minister having prejudiced had no fair mind and as such was disqualified to act i.e. it was against the principles of natural justice.

In the light of the above cases it can be stated that the principle of natural justice was applied by the Supreme Court.

How did the procedure followed in this case violate Natural justice?

In the previous paragraphs, we have already stated how the procedure followed was not according to the procedure stated in law. Now, we shall analyze how it violated natural justice. The eternal principles of natural justice state that no man can be a judge in his cause. Justice Vivian Bose in a case of District Superintendent of Police had squashed the proceedings stating that the DSP had acted both as a judge and a witness therefore enforcing the principle of natural justice. In the present case, when faced with sexual harassment allegations Justice Gogoi constituted an internal committee which included him and two other male judges including the Attorney General who would speak on his behalf. By doing so he violated the first principle of natural justice. The second principle states that a both the parties should be given an opportunity to be heard. In the present case, when the complainant was not comfortable with the Justice Gogoi being a judge in his own cause, she delayed the proceedings and subsequently withdrew from it because of which ex-parte proceedings had started and the complainant was not given a reasonable opportunity to be heard. The third and the most important of all the principles is that the decision should be in good faith. But if a man is a judge in his own cause and ex parte proceedings have taken place which further adds to not giving the other party a reasonable chance to be heard, the chances of the decision being impartial is substantially less. Therefore, concluding this, it can be said that the procedure adopted by Justice Gogoi violated all the principles of natural justice and therefore was against the law.

Justice Gogoi’s remarks after violating Natural justice

Justice Gogoi made several statements through which it can be inferred that he tried asserting “independence of judiciary” over “natural justice”.

Some of the statements he made are;

“Rise of populism presents a challenge to independence of courts and asked the judiciary to standup against populist forces and protest constitutional ethos”

He further added, this is also an area that requires the judiciary to prepare itself, to strengthen itself against such populist onslaughts on the “independence” of the institution.[20]

Does asserting “independence of judiciary” make you judicially accountable as well?

In India, Judiciary is considered to be the most important organ of the government. The two other organs, the legislature and the executive are even accountable to the judiciary. But the real question that arises is who is the judiciary accountable to?

In India, a judge has never been impeached. Does that give judiciary absolute power amongst the several organs? Furthermore, “independence of judiciary” is also considered to be one of the basic structures of the Constitution. But does that give the Indian judiciary an excuse to get away with their crimes? We shall analyze these through these cases.

In the present case as we have already noted, when Justice Gogoi was faced with sexual harassment charges, he denied so asserting the allegations were a threat to the “independence of judiciary” Furthermore, as we have already noted a lot of immunities were given to the Chief Justice as well. The procedure in which the interrogations were conducted did not abide by theGender Sensitization and Sexual Harassment of Women at Supreme Court (Prevention, Prohibition and Redressal) Guidelines 2015. This is not the only case where such immunities have been granted.Recently, a retired Supreme Court judge AK Ganguly was accused by an intern for sexually harassing her. Later on, he was even found guilty. But after that all he had to do was resign from the West Bengal Human Rights Commission. There weren’t any substantial charges against him. In another case, a Madhya Pradesh High Court judge was found guilty of sexually harassing a woman. 58 resolutions were also passed by the Rajya Sabha MP’s to impeach the judge yet no severe action was taken against him. These cases are a clear indicative of judiciary misusing the power given to them. These cases further imply that there is a dire need to hold the judiciary accountable for their acts and further restore the citizens faith in them.

How can the judiciary be held accountable for their actions?

Here, we will finally discuss the measures that can be taken in order to hold the judiciary accountable for their actions. This shall ensure reasonable power in the hands of the judiciary. Furthermore, even “independence of judiciary” in its truest sense shall be procured. Firstly, there should be an investigative body that should ensure wider representation of members and not just the judges. The members can be elected from the leading political parties and their oppositions. There can also be members from the various commissions such as the Chairperson of the National Human Rights Commission. By doing this, the investigation/interrogation procedure shall take place in a fair/justified manner. There would be less probability of a judge influencing a decision because of its position/the power it holds. Further, a bill should be introduced which shall provide a mechanism for the procedure for investigation i.e. whenever there is a complaint against a judge. All the investigating procedure should be made public.Further, the contempt charges should be taken up by independent bodies rather than the courts. And the most important of all the measures is Judicial Restraint. Judicial Restraint deals with limiting the power of the judges. In the present case, we have observed that since Justice Gogoi had unlimited power in his hands, he conducted an interrogation which was favorable for him therefore violating fairness, natural justice and good conscience. These measures shall be a step ahead in procuring Judicial accountability which in today’s era is very much needed.

Conclusion

By analyzing this case, we can infer that “independence of judiciary” is being misused by the Indian judges. There is a dire need for an investigative body/a law that ensures that the power given to these judges is utilized in a fair and reasonable manner. If not, then power will prevail over justice. If that happens, there will be no democracy which has been acquired after several hardships. The only difference that’ll lie before independence and after is that the Indians will be ruled by the judges instead of the British.

[1]Gender Sensitization and Sexual Harassment of Women at Supreme Court (Prevention, Prohibition and Redressal) Guidelines(2015).

[2]Gender Sensitization and Sexual Harassment of Women at Supreme Court (Prevention, Prohibition and Redressal) Guidelines (2015).

[3]Gender Sensitization and Sexual Harassment of Women at Supreme Court (Prevention, Prohibition and Redressal) Guidelines (2015).

[4]Gender Sensitization and Sexual Harassment of Women at Supreme Court (Prevention, Prohibition and Redressal) Guidelines(2015).

[5]Gender Sensitization and Sexual Harassment of Women at Supreme Court (Prevention, Prohibition and Redressal) Guidelines (2015).

[6]Gender Sensitization and Sexual Harassment of Women at Supreme Court (Prevention, Prohibition and Redressal) Guidelines (2015).

[7]Gender Sensitization and Sexual Harassment of Women at Supreme Court (Prevention, Prohibition and Redressal) Guidelines (2015).

[8]Gender Sensitization and Sexual Harassment of Women at Supreme Court (Prevention, Prohibition and Redressal) Guidelines(2015).

[9]Gender Sensitization and Sexual Harassment of Women at Supreme Court (Prevention, Prohibition and Redressal) Guidelines(2015).

[10]Gender Sensitization and Sexual Harassment of Women at Supreme Court (Prevention, Prohibition and Redressal) Guidelines(2015).

[11]Willis, Indian Journal and Natural Justice, Volume 25, p.282, p.662, (1964).

[12]Hood Phillips, Constitutional Law and Administrative law, Volume 37, p.286, p.352, (1966).

[13]Constituent Assembly Debates Volume VIII P.638 TO 639

[14]P. John v. State of Travancore Cochin, AIR 1955 SC 85.

[15]Union of India v. T.R. Verma, AIR 1958 SC 110.

[16]Khemchanda v. Union of India, AIR 1958 SC 220.

[17]Mukhtar Singh v. State of U.P, AIR 1957 SC 297.

[18]Sangram Singh v. Election Tribunal, AIR 1955 SC 545.

[19]Nageswar Rao v. State of A.P., AIR 1959 SC 1376.

[20]DhananjayMahapatra, Rise of Populist forces poses a challenge to the judiciary, (Jul. 19^th 2019 4:30), https://timesofindia.indiatimes.com/india/rise-of-populist-forces-poses-a-challenge-to-judiciary-cji-gogoi/articleshow/69849591.cms