John Austin, the renowned British jurist, believed that judges have no option but to make the law, otherwise, the law must be "a miraculous something made by nobody existing, I suppose, from eternity". Justice Oliver Wendell Holmes, Jr. of the US Supreme Court argued that judges must make the law, else it would remain a “brooding omnipresence in the sky”.
Our Supreme Court has, especially of late, been an activist Court, charting new paths in jurisprudence where none existed, and has rarely hesitated to make a break from tradition for the cause of justice.
So, one cannot help but being dismayed at the apex court washing its hands off Justice AK Ganguly’s transgression of every norm of judicial conduct and propriety. Despite the Committee (comprising three sitting judges of the Supreme Court) finding prima facie merit in the allegations of sexual harassment by an intern, Chief Justice of India (CJI) P Sathasivam and his colleagues on the Bench have decided:
“Considering the fact that the said intern was not an intern on the roll of the Supreme Court and that the concerned judge had already demitted office on account of superannuation on the date of the incident, no further follow up action is required by this Court.”
Effectively, it means that since the complainant was not a rostered intern under a sitting judge but a research associate for a book Justice Ganguly was in the process of authoring post his retirement, and since the incident took place in a hotel where he was staying and not within the precincts or premises of the Supreme Court, the court is absolved of all responsibility.
It is not the first time their Lordships have sought refuge in that fortress of rules and principles which appear unjustly nebulous. In 1995, the Bombay High Court was rocked by Justice A M Bhattacharjee’s refusal to resign despite being found guilty of judicial misconduct. In its judgement, the Supreme Court held that the Bar could not protest or pass resolutions against a sitting judge whose actions were out in the open for all to see. Instead, the matter must be taken up with the chief justice of the high court and, if there is no redress, then with the CJI and await a response for a “reasonable period”.
But what constitutes a “reasonable period”? What if the Chief Justice of India failed to respond? Would the accused Judge continue to adorn the Bench while the appropriate petitions made their way through the serpentine alleys of the judiciary’s hierarchy? There was silence from the court.
The reasoning in the present case is, with all due respect, facile at best, and at worst, deeply reflective of the sexism entrenched in the judiciary. Even to someone trained in the law and not easily tempted by the fruit of imputing motives, this citing of a lack of jurisdiction points towards certain imperiousness in refusing to acknowledge and deal with a malaise which taints the very quality of justice.
Such an approach appears ironical because the same Supreme Court framed the Vishaka guidelines in 1997 to effectively deal with sexual harassment at the workplace. More irony is in store when one notices that it took the apex court 16 long years to practise what it ruled from the Bench – the Gender Sensitisation & Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013 were brought into force only in August 2013. One might be forgiven for being cynical and wondering if all judgements championing the cause of women’s rights and gender justice were the shibboleths of an institution steadfastly opposed to holding up a mirror to itself.
Some commentators might commend the court for at least not brushing aside the allegations under the carpet with the specious reasoning that an ‘in-house’ panel would do what it deems best, lest the independence of the judiciary is put at stake.
However, such contentment with a minor break from the status quo elides a much required scrutiny of the court’s conduct.
Three issues cry out for attention. One, in the “operative part” of the committee’s report which has been made available to the public, it is stated that the court was awakened from its torpor not on the basis of the complainant voicing her allegations in the open, but because it was alarmed that a newspaper report with the headline “SC judge harassed me, says intern” – which gives the impression of a sitting judge’s involvement – might imperil the judiciary’s credibility.
Two, is it squeamishness on the part of the sexagenarian guardians of the law to call molestation or “sexual assault (in the words of the complainant: “not physically injurious, but nevertheless violating”) an “act of unwelcome behaviour (unwelcome verbal/non-verbal conduct of sexual nature)”? Or, as the venerable Justice Krishna Iyer had put it, an act of ‘erotic delinquency’?
Three, why did this committee gloss over Justice Ganguly’s unworthy conduct of casting aspersions on the complainant’s credibility in this 17 November, 2013 interview with a tabloid? From a court which otherwise responds to media reports with alacrity, this elision appears disturbing, if not suspicious. The committee submitted its report on 28 November, 2013; therefore, this interview clearly falls within the domain of interfering with the judicial process and called for suitable action.
Or is it? One thing is clear: the Supreme Court is drawing a thick line between its administrative and judicial functions, in so far as the duty to act judicially (emphasis, mine) is concerned. Again, such solipsistic cherry-picking is not new to the court. 2010 witnessed an unprecedented instance of the court’s institutional exceptionalism – it appealed to itself against a Delhi High Court judgement mandating disclosure of judges’ assets.
The turn of events in the immediate case makes it redolent of the sordid Clarence Thomas incident in the US, in which Anita Hill, the complainant against Thomas’s lurid acts was publicly ridiculed.
Already doyens of the Bar as well as the Bench, among them, an ex-CJI and a former Solicitor General have started closing ranks around Justice Ganguly, while serial litigant Manohar Lal Sharma has filed a PIL demanding investigation and penal action against the complainant. Justice Ganguly, with his confidence bolstered by such support, has refused to resign from the position of chairperson of the West Bengal Human Rights Commission. He could perhaps take a leaf out of Justice Arun Madan’s book and make a graceful exit before sullying the judiciary’s reputation even further. In 2004, after a Supreme Court committee had charged him with demanding sexual favours from a litigant, he resigned, hoping to escape prosecution. His hopes did not go in vain.
But this is not 2004, and it is imperative that deterrent measures against such crimes get written in the book of precedents. There is a complaint calling for an FIR to be lodged and the law to take its course. It goes without saying that in such cases, respecting the complainant’s agency is an essential ingredient of justice. Whether she shall go ahead and enable the criminal law to be set into motion is entirely her right to choose, and we must respect and support her irrespective of her decision.
The Supreme Court has not covered itself in glory by abdicating its role and relegating the present case to the ‘administrative matter’ back-burner. However, there is still a chance to redeem itself, albeit partially. On 12 November this year, it ruled that an FIR and subsequent investigation is mandatory when the commission of a cognisable offence is reported.
Justice Ganguly has retired from the Bench, but that does not excuse him from adhering to the highest standards of judicial conduct. After all, the chairperson of a state Human Rights Commission does discharge a quasi-judicial function and enjoys some perks of judicial office.
Provided the complainant agrees let this be a test case for the judiciary as an institution – let it walk the talk and set a precedent of critical self-assessment and correction.
In case the court decides not to act, it shall only validate what The Book of Judges of The Old Testament tells us: “when the judges rule, every man doth that which is right in his own eyes.”
Full disclosure: The writer graduated in the Class of 2007 of NUJS, the same law school as that of the complainant.
Saurav teaches Media Law & Jurisprudence in Mumbai and Pune. Follow him on twitter @SauravDatta29