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Mainstream, VOL LVII No 22 New Delhi May 18, 2019

The Smothering of Justice

Sunday 19 May 2019, by Anil Nauriya

Introduction

It has been evident for some time that the judicial system in India is in a state of crisis. It is also increasingly obvious that this crisis is interconnected with a crisis in the polity and, in turn, has ramifications for the polity. The starkest illustration of this so far is provided by the chain of events surrounding the complaint by an ex-employee of the Supreme Court of India that became public on April 19-20, 2019. This complaint led to responses from the judicial system that were not only unusual but which have involved the throwing overboard of norms intrinsic to any modern judicial system. It would hardly be an exaggeration to state that, with this matter and all that it implies and entails, the Supreme Court has touched its lowest point ever. Indeed in the absence of drastic correctives, the Court may not be able to live down this shameful phase in its career.

Proceedings on and since April 20, 2019

As soon as the matter entered the public domain, a proceeding of unclear category was organised at the Supreme Court on Saturday, April 20, 2019. The proceeding, presided over by the Chief Justice of India, was held at the instance of a law officer of the Union Government but without as such any specific case before it. It was pre-emptive in nature because the complainant ex-employee was clearly the absent elephant in the room and the suggestion made was that there had been, in effect, an assault on the Court itself. As the proceeding on April 20, 2019 was without compliance with the principle of audi alteram partem (“hear the other side”) it was clearly vitiated. Many persons, including sections of the Bar and the Court employees, have since then taken sides and some have sought to insinuate that the complainant was involved in a kind of conspiracy. It has further been insinuated both in proceedings before yet another Bench and elsewhere that a conspiracy might be afoot at the instance of various forces, including corporate bodies, out to manipulate or intimidate the Court. In this context reference has also been made to two other ex-employees of the Court who were dismissed recently on the charge that they had tampered with Court orders.

So far as manipulation by corporate bodies is concerned, this is not a novel issue and as early as in 1957 Mr Justice M.C. Chagla, then of the Bombay High Court, had warned in a judgement of the threat posed to the polity by the misutilisation of money bags. [See Justice Chagla’s prescient warning in the Bombay High Court on June 21, 1957: “History of democracy has proved that in other countries democracy has been smothered by big business and money bags...”. (link: https://indiankanoon.org/doc/256323/ )

Justice Chagla was referring to the polity and not to the judiciary as such. However, in the search for a conspiracy in the wake of the charges made by the complainant ex-employee in April 2019, the Court’s gaze has been turned far and wide. This is certainly a matter to be inquired into, but it may not be fair to the complainant ex-employee, who has raised a specific set of grievances, to overwhelm her individual case with the full weight of an inquiry into the role of money bags in the polity and the judiciary.

An Error

It was clearly an error to link the complainant ex-employee, without hearing her, with a possible conspiracy and that too even before her complaint had been inquired into on merits. Here the Court was clearly placing a Judicial Cart before an Administrative or Quasi-Judicial Horse.

Some two decades ago the Supreme Court had itself held in a case that a direction to an investigative agency (in that case the CBI) to make a roving inquiry, that is to investigate the possibility of “any other offence” having been committed, was “ wholly erroneous....a direction to the C.B.I. to investigate whether any person has committed an offence or not cannot be legally given”. (link: https://indiankanoon.org/doc/1707158/ ) In the circumstances, Mr Justice Patnaik (retired), who was requested by a second Bench of the Supreme Court to look into the conspiracy angle, was reported sagaciously to have said he would go into the conspiracy angle only after the ongoing internal inquiry on the Complaint by the ex-employee in question was complete. It had seemed at the time Mr Justice Patnaik made this statement that a semblance of balance was gradually being restored. But subsequent events have occurred which have led to a lack of clarity on the nature of the internal inquiry. Was it akin to a Departmental Enquiry in which an assistant is permitted? Or was it a proceeding of a statutory Gender Harassment Committee (which has a specified composition and pro-cedure)? Or was it a judicial hearing (in which lawyers are permitted)? And since it was obviously none of these was it in the nature of a mere discussion to which the complainant ex-employee had been invited? There is still insufficient clarity on these and connected matters and we need not, for the present, dwell on them at length except to make one observation.

This is that the so-called administrative or quasi-judicial in-house panel set up in the Supreme Court to inquire into the gender harassment complaint against the Chief Justice of India appears to have missed a vital point. This concerns the manner in which the Court Assistant was removed from service. The reason for her removal was reportedly attributed to her raising questions on her transfer from one section of the Supreme Court to another and her absence on a particular Saturday when, by her account, she had gone to attend a function in her daughter’s school. As these reasons are inadequate for removal from service of an employee who till recently seems to have had a good enough record to qualify for preferment, there appear to be unstated reasons for her removal from service.

This circumstance seems largely to shift the onus of explanation from her to the Court Administration at the very least and her charges cannot therefore be lightly dismissed. That should have raised a presumption in her favour in the so-called in-house inquiry and an onus should have been placed on others to rebut her narrative. Unfortunately, the Supreme Court’s internal inquiry has failed to allay the fear that the Court is responding to the current crisis by what may seem like smokescreen-creation.

The matter reeks of overzealousness on the part of the authorities. Even without commenting on what did or did not transpire at the Chief Justice’s residence in October 2018, it is obvious that people are not removed from service for the kind of reasons that have reportedly been stated. That suggests that there was an unstated and collateral reason for her removal from service. The unstated element, unless rebutted or otherwise explained, acts as a possible link between her removal from service and the facts constituting her gender harassment complaint; as such the two cannot be seen in isolation of one another.

Need for Comprehensive Inquiry and Redress

It is important that the complainant ex-employee removed from service and also her relatives who, along with her, have been at the receiving end of action by the Delhi Police should also be able to seek legal redress. Here we must return to the conspiracy angle but perhaps not necessarily confined to the manner that has been suggested so far in proceedings before the couple of Benches of the Supreme Court where this matter has been discussed. The apparently overzealous action reportedly taken by the Delhi Police against the relatives of the Court ex-employee suggests a possible desire on the part of the Union Government to please and that too at a time when vital cases were due to be heard in the Court.

A comprehensive inquiry is required to ascertain whether this crisis, on the boil since mid-October 2018, has in any manner been taken advantage of by the other branches of Government or affected the delivery of justice in any cases dealt with by the Supreme Court in the period since then.

Many important cases, including those affecting India’s national, defence and social security, have been dealt with during this period. Legal systems break down when the ‘fox’ comes, directly or indirectly, into a position to control or vitally affect the ‘henhouse’. In other jurisdictions, when this phenomenon occurs in relation to the state, it is known as State Capture. In India the Higher Judiciary has, in spite of aberrations, been much respected. One member of the Constituent Assembly of India had said that the seat of Justice was the Seat of God. The last thing the Secular Democratic Republic of India needs is Court Capture.

Role of Full Court 

There is no doubt that Judicial independence can be protected better if the full Court reviews the situation. One of the Honourable Judges of the Supreme Court had reportedly made such a suggestion in the context of the in-house inquiry related to the Court Assistant’s complaint. It was Lord Coke who had said that once law loses its reason it becomes a nullity. Increasingly, one looks strenuously for reason in the recent Supreme Court’s judicial activity.

The author is an Advocate of the Supreme Court of India.

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