Spotlight back on Vishaka

Rising pendency with a backlog touching 3.3 crore cases and the procedure of judicial appointments that has generated tensions between the judiciary and the executive were two issues that dominated the Supreme Court in the last two decades.

However, it appears that these two issues have become subsidiary among many current concerns surrounding the institutional crisis that has gripped the Supreme Court. 

Early 2018 brought to the fore another aspect – the accumulation of powers in the hands of Chief Justice of India (CJI) to select colleagues on the bench over which he presides or allocates cases to his colleagues. 

It became global news when four senior most judges, including the present Chief Justice of India, publicly said that the then CJI had been assigning cases arbitrarily and according to his own preferences. 

While this public protest ended as brusquely as it had commenced, the apex court faced the spotlight soon when the CJI introduced a new roster system. 

This led to unprecedented spin-offs. Seven opposition parties led by the Congress moved a notice for the impeachment of the then CJI accusing him of “misbehaviour” and “misuse” of his administrative powers.

Though Chairman Rajya Sabha, M Venkaiah Naidu, vetoed the notice, it brought unparalleled disgrace to the institution in general and office of the CJI in particular. 

The ghost of the past has come to haunt the office of the CJI once again with certain titillating questions and paradoxes.

The first paradox: it is not a mere coincidence that the judge who protested against preceding CJI arguing that ‘democracy is in danger’, is now facing charges of sexual harassment from a court employee. The paradox lies in the fact that the Supreme Court, which for the first time laid down the guidelines and norms for preventing sexual harassment at workplace in the famous Vishaka and Others vs. State of Rajasthan and Others (1997), failed to apply those guidelines when it came to itself.

The guidelines, besides imposing obligations on the employer to provide a safe working environment, mandated all to set up a Complaints Committee within the organisation to look into such offences.

“Such a complaint mechanism should ensure time-bound treatment of complaints,” provide the Supreme Court guidelines. The Complaints Committee should be headed by a woman and not less than half of its member should be women. 

Further, to prevent the possibility of any undue pressure or influence from senior levels, such a panel should involve a third party, either a NGO or another body familiar with the issue of sexual harassment. 

Unfortunately, ignoring all these principles laid down by the Supreme Court, double standards were on display once again.

The apex court, which keeps a constant check over every institution, has once again failed to apply similar method of disciplining its own behaviour.

Second paradox: the Chief Justice, who strongly raised his voice against his predecessor’s master of roster prerogative and held a press conference alleging that he was assigning cases arbitrarily, constituted a bench comprising himself and Justices Arun Mishra and Sanjiv Khanna, all male justices in spite of the fact that Supreme Court has three women justices at the moment.

The CJI, unpredictably, saw urgency and posted the matter on the judicial side constituting a bench of three judges and holding a hearing on a holiday as “In Re: Matter of great public importance touching upon the independence of the judiciary.’’ 

Third paradox: That the CJI judged the case, while being an accused, appears way too strong to digest. 

Nemo judex in sua causa, i.e. no one can be judge in his own cause, a cardinal principle of natural justice, it seems is applicable to all except My Lords. 

The name of the Chief Justice was, however, conveniently omitted from the order to be on safe side. The allegations may be true, false or politically motivated, but the manner in which CJI dealt with this case was undeniably vindictive.

Denial of hearing to the complainant and attempts to cancel her bail congregates the very essence of the justice delivery process, which is fair and transparent. Another principle of natural justice audi alterum partem stands desecrated. 

Fourth paradox: the Chief Justice who made history by organising a press conference in January last year against the then CJI, has now requested the media to show restraint to protect the independence of judiciary. 

The irony of the argument put forward by the CJI that an alleged sexual harassment against him has the potential of damaging the independence of judiciary, seems too naïve to be acceptable on pragmatic grounds. 

The spirit of independence was underlined precisely by Lord Woolf, “the independence of the Judiciary is not the property of the Judiciary, but a commodity to be held by the Judiciary in trust for the public.” 

On the contrary, greater transparency and accountability in the working of the apex court will foster more respect for the institution. Provided there is nothing to hide or shove under the rug.

For way too long, the judicial body has been wrapped under the cloak of discretion and inexplicability.

The Supreme Court of India has been a people’s court, pronouncing judgments for the betterment of human conditions and upholding rule of law. At this juncture, it will be surprising if it denies the due process on grounds of judicial independency. It will be a battle fought for all the wrong reasons.

Author is Registrar National Law University Odisha