Opinion| The handling of the sexual harassment case is a sad comment on our top court
Let me begin with an admission. I’m only a layman and I have no legal training whatsoever. I’m also not conversant with the procedures of the Supreme Court and how enquiries against sitting judges must be conducted. But that said and done, there’s a lot about the way the Supreme Court handled allegations of sexual harassment levelled at the Chief Justice (CJI) that perturbs me. It throws into question the Chief Justice’s exoneration. Indeed it makes me ask: was this justice or a charade? Let me share my concerns with you.
First, when a junior employee accuses her topmost boss of sexual harassment, the enquiry committee set up must surely be seen to be independent of both sides? It must also ensure fairness and equality in the very unequal circumstances of this case. But was that really achieved when three sitting judges of the Supreme Court were chosen to do the job? Remember, they are colleagues of the Chief Justice. No wonder the complainant felt intimidated in their presence.
Second, when questioned by three Supreme Court judges, in a matter where her dignity and integrity are at stake, it’s not surprising the complainant wanted the assistance of a lawyer. Yet this was denied on the grounds that the in-house procedure did not permit it. But does that matter?
Frankly, the in-house procedure is not cast in stone. To begin with, it does not encompass allegations against the Chief Justice. It was adapted for this purpose. In which case, you could further tweak it to permit the complainant legal assistance.
In fact, if you believe what the complainant stated in her press release, there’s a lot more that was disturbing about the way the Supreme Court enquiry was conducted. She was “orally instructed” not to share the proceedings with her lawyer. She was not given a copy of her statement recorded on April 26 and 29 and there was no video or audio recordings of the proceedings even though she requested this. Finally, if she’s correct, she asked for but was denied details about the procedure the committee would follow.
This raises a simple question: Why? What she was asking for was not just straightforward but fairly easily achieved. It would have given her comfort and reassurance without incurring either cost or inconvenience. It seemed perverse, if not bloody-minded, to refuse. Yet that’s what the committee did.
Finally, after the complainant decided to withdraw from the committee’s proceedings it continued without her. Again, this raised in my mind a simple question: how can you enquire into allegations I have made about sexual harassment without listening, fully and fairly, to what I have to say? You can hardly enquire, leave aside come to a conclusion, without my active participation. Unless, of course, you feel what I have to say is either irrelevant or untrue.
Now the inescapable truth is this is possibly the worst crisis our Supreme Court has ever faced. It’s also its greatest test. This means that not only must the procedure followed be fair but it must be seen to be so. I don’t think that was the case and, therefore, the committee’s exoneration of the Chief Justice only raises questions, it doesn’t resolve the matter. And that is a sad judgement on our top court.
Karan Thapar is author of Devil’s Advocate: The Untold Story
The views expressed are personal