Chief Justice of India Sexual Harassment controversy: Twilight before a New Dawn?

Bar & Bench April 24 2019
supreme court registry cji gogoi

Vivek Narayan Sharma

For the better part of this month, the Indian General Elections was the focus of the news cycle, before the news of a sexual harassment complaint by a woman court staffer against Hon’ble Chief Justice of India Ranjan Gogoi came out in the open. Needless to say, the whole country was in shock.

The allegations against the highest judicial officer of the country has heavily divided the nation into two segments - in favour of, and against the Chief Justice of India. The allegations against the CJI, leaked to the media, are doing the rounds on millions of WhatsApp groups and internet sites, and it would not be worthwhile to incorporate the same here. While the investigation into the sexual harassment allegations against the CJI is yet to commence, the minds of the nation have already passed their verdict of guilty, whether against the CJI or against the complainant.

While there can’t be two opinions about certain facts related to this episode, the unprecedented controversy involving the institution of the Supreme Court hurts deeply. It goes without saying that like all other cases involving sexual harassment at the workplace, fair and impartial investigation and trial should be carried out in present case too, as the Constitution of India treats all citizens equally and prohibits differential treatment.

During the special bench hearing on April 20, 2019, the CJI appeared to have indirectly rebutted the sexual harassment allegation and reminded the nation of his honest efforts. However, it is the firm belief of many that CJI should have spoken such things in a formal Press Conference instead of speaking during the special bench hearing. Using the institution of the Supreme Court to respond to personal allegations, howsoever motivated the allegations may be (if found so in future), appeared to be misuse of judicial power and against the interests of justice.

Judicial propriety doesn’t permit a person, even the CJI, to be a judge in his own cause. The other party was not afforded an opportunity of hearing. The court order for the said hearing had the CJI's name missing, despite the CJI being part of the Bench. All this is in very bad taste, as it points to misuse of the highest judicial institution of the country by the highest judicial officers of the country.

While the above infractions are required to be explained and cured, the silver lining for a new dawn has also appeared. The nation has seen serious changes in the laws relating to women during the last two decades. The Indian Evidence Act has changed to the extent that in sexual crimes, it is the man who has to prove that he did not commit a sexual crime, and such proof has to be beyond reasonable doubt, which is the yardstick for assessing the evidence in criminal law.

Publishing or publicizing the name, picture, video, or other details of female and child victims of sexual crimes is strictly prohibited and entails punishment in India. However, the same is not true for an accused, and the media or any person is free to circulate the details of an accused named in a sexual offence.

The fundamental principle of punishment in India is that an accused should be proven guilty beyond reasonable doubt and is convicted only after fair trial.

After the trial, an accused may be declared guilty or freed. However, due to circulation of name, image, and other details of the accused in the media, society pre-empts the trial and treats an accused as being guilty. This may create havoc in the lives of innocent persons implicated falsely in sexual offences. Such persons may lose jobs, family, reputation, livelihood and in effect, the very fundamental right to live with dignity as guaranteed under Article 21 of the Constitution of India. In some cases, the accused have also committed suicide.

Now that the Chief Justice of India is named in a sexual harassment case, the constitutional courts of the country are in their twilight. However, they may embark upon a new dawn and provide for non-disclosure of the identity of the accused until proven guilty. This would immensely benefit the people who are falsely implicated in cases of sexual offences, and uphold the interests of justice.

The author is an advocate practising at the Supreme Court of India and the Joint Secretary of the Supreme Court Advocates-on-Record Association.

Disclaimer: The views and opinions expressed in this article are those of the author’s and do not necessarily reflect those of Bar & Bench.