On the 19th of April this year, a former employee of the Supreme Court’s registry, forwarded a detailed affidavit to the Judges of the Court alleging sexual harassment by the Chief Justice of India. She also pointed out a subsequent pattern of vengeance upon her and her family. In this unprecedented situation, the Court had many options before it – order an enquiry under the Prevention of Sexual Harassment at Workplaces Act, follow its own internal sexual harassment complaint procedure or follow simple common sense. Over the last 20 days, it seems to have abandoned all of these, and decided to brazen it out.
The Court’s response started with an ‘emergency Saturday hearing’ in a case dramatically titled: “In Re : Matter of Great Public Importance Touching upon the Independence of Judiciary - mentioned by Shri Tushar Mehta, Solicitor General of India”. It has ended in a secret, internal report that has exonerated the Chief Justice.
The process and its outcome do not come as a surprise. If anything, they follow a pattern, common to other cases of such allegations against men in positions of power. All of these are characterized by victim shaming by the accused and their supporters – often other men and women holding high office, wild conspiracy theories and scant regard to the most basic principles of fairness. In the past, the US Supreme Court, has similarly protected its judges.
The case of Justice Clarence Thomas
In 1991, President George H. W. Bush nominated Clarence Thomas, a federal Circuit Judge, to the United States Supreme Court. Soon thereafter, a private interview given to the FBI by Professor Anita Hill was leaked to the press. Hill was called to testify publicly. In senate hearings that were televised across the United States, Hill affirmed on oath that Thomas had sexually harassed her while he was her supervisor at the Department of Education.
Thomas' supporters questioned her credibility, claiming she was delusional or had been spurned. During the senate hearing, Republican Senator Orrin Hatch went as far as implying that "Hill was working in tandem with 'slick lawyers' and interest groups bent on destroying Thomas' chances to join the court."
Hill agreed to take a polygraph test. The reports of the test confirmed her claims. Thomas refused a similar test. He however stated that he was being subjected to "high-tech lynching for uppity blacks" by white liberals who were seeking to block a black conservative from taking a seat on the Supreme Court. Ultimately, the United States Senate confirmed Thomas to the Supreme Court by a vote of 52–48.
The case of Brett Kavanaugh
In early July 2018, Judge Brett Kavanaugh was reported to be on Donald Trump's shortlist to become an Associate Justice of the Supreme Court of the United States. Soon thereafter, Christine Blasey Ford, a professor of psychology at the Palo Alto University contacted the Washington Post and her congresswoman, Anna Eshoo, informing them that she had been sexually assaulted by Kavanaugh in 1982. Professor Ford wrestled with the choice to make her identity known for months. She was wary of the “negative impact” it would have on her. Ultimately, after reporters started to track down her identity, she went public on September 16, 2018.
What followed is well known. Like Anita Hill, Professor Ford was made to undergo a polygraph test. Like Hill, her claims were supported by the results of the test. However, even before a hearing before the Senate could take place, President Trump jumped to Kavanaugh’s defence. He also went on to doubt the veracity of Ford’s allegations, stating that they were an "assault" made by "radical left wing politicians" intended to undermine his presidency. Brett Kavanaugh is now a Judge of the US Supreme Court.
The case of Chief Justice of India
Immediately after reports of the allegations against him came out in the media, the Chief Justice constituted a bench, which he presided over himself. Three of the most powerful men in the Court – the Chief Justice, the Attorney General and the Solicitor General got together to indulge in what can best be called character assassination of the complainant. The hearing was called without notice to the complainant herself. Curiously, though the Chief Justice was a member of the bench, the final order of the day was not signed by him.
Soon thereafter, one Mr. Utsav Bains filed an affidavit alleging that there was a conspiracy to ‘fix the Chief Justice’. Mr. Bains was not a party to the Court proceedings. How then was his affidavit accepted by the Court registry? The affidavit itself alleged a conspiracy involving people of all hues - Dawood Ibrahim, Naresh Goyal, Supreme Court judges, disgruntled court staff etc. A bench – not involving the Chief Justice, has taken cognizance of this, and ordered an enquiry.
At the same time, an in-house panel was constituted to conduct an ‘informal enquiry’ into the charges against the Chief Justice. The Complainant described the proceedings before the panel as hostile. She chose to walk out of the proceedings after her requests for a lawyer and for recording of the proceedings etc were denied. The enquiry that went on in her absence cleared the Chief Justice of all charges. The Court has refused to make the report public.
The institutional response of the Supreme Court to the allegations against the Chief Justice is a study in what not to do in cases of sexual harassment against men in power. The entire process – starting from the hearing where the Chief Justice’s Court was used to deliver a speech fit for a press conference; to the final outcome - has been punctuated with misuse of power and little adherence to the basic norms of procedural fairness.
‘Fiat justitia ruat caelum’ - Let justice be done though the heavens fall, the Supreme Court often tells us. The same Supreme Court refused a lawyer to the Complainant in this case. Sunlight is the best disinfectant – the Court repeatedly says while stressing on transparency in all matters. The same Court has refused to make its final report public. In doing so, it has let all of us – lawyers and citizens who have (had?) faith in the judiciary down. For years citizens and lawyers looked up to the judiciary as the protector of the Constitution – the sentinel on the qui vive. It now appears reduced to a “..man, proud man, dress'd in a little brief authority, most ignorant of what he's most assur'd..” It is said that things have to get worse before they get better. Things do not get much worse than this.