« DeStefano on "the Adjacent Possible" | Main | Hiring Announcement: Suffolk University Law School Transactional Clinic Director »

Monday, August 05, 2019

#MeToo at the Indian Supreme Court

I thought I’d take a break from my series about junior-prawfing to talk a little bit about a current project—rather, part of a future project. This draws from a preliminary “scouting” field trip I did in Delhi this April/May in order to refine ideas for a new research arc on the Indian judiciary. (One of my later posts may discuss the process of developing or shifting research arcs.)

The Indian Supreme Court is widely considered to be among the more progressive and powerful apex courts in the world, and at least for much of the last 40 years it’s enjoyed a remarkable reputation for being more trustworthy and “pro-people” than the executive and legislative branches. (I should note that this view of the Court is by no means universally endorsed, but it’s proven to have considerable reach and lasting power.) In recent years, the Court’s reputation has been getting tarnished for a number of reasons—the ongoing conversations about reforming SCOTUS have strong parallels in India right now—including one reason that I ended up inadvertently learning quite a bit about during my recent scouting trip.

The Chief Justice of India (CJI) is exceptionally powerful, and not “just” in the sense of representing and heading the highest court in the country. For example, the CJI is significantly involved in the elevation of both High Court and Supreme Court judges, has the power to form benches on the Court (the Indian Court does not sit en banc), and—most relevantly for this post, is charged with handling discipline matters involving other Supreme Court justices. But there’s no procedure for handling discipline matters involving the CJI himself. This proved to be a problem when, earlier this year, a former staffer accused the current CJI of sexually harassing her, following which she was demoted, fired, and otherwise intimidated. Incredibly, the Court’s first response was an informal (and closed door) “inquiry” comprising a panel of 3 justices, during which (1) the complainant was not allowed counsel or even a support person, (2) the CJI was present, and (3) the CJI’s presence was redacted from the proceeding’s records.

There were protests. Obviously. It just so happened that, on the day of the first protest, the journalist I was scheduled to have coffee with  had to cover the protest. Since it was broadly relevant to my interest in the Court, he suggested I attend myself. I did, and I ended up having some interesting conversations, making some more contacts, and barely managing to avoid getting scooped up when the Delhi Police and Central Reserve Police came to enact some thoroughly unnecessary crowd control. (I’m in a few photos from news coverage of the day, hanging out at the back and trying to look innocuous and student-like.)

There’s a lot to unpack here and I’m working on an article that will help me tackle a very small part of it as well as help me think about the larger research arc that this will be a part of. But the CJI scandal has been something of an unexpected introduction into the study of courts-as-institutions after a decade of studying issues that frequently land in the courts. I had no particular intention of diving into—or avoiding—India’s version of the judicial #MeToo until it impacted my other plans for the day. Attending the protest and following up with some of the folks I met there has convinced me that the CJI scandal has an important role to play in understanding the broader relationship between the Indian Court and Indian democracy. And that, in a nutshell, is the beauty (and risk) of fieldwork: like all work with primary source material—archival documents and data sets included—you never know how your inquiry will proceed, but unlike these other types of research your material is both unknown at time zero and constantly susceptible to change.

Posted by Deepa Das Acevedo on August 5, 2019 at 10:47 PM | Permalink

Comments

DDA, you may find great interest here ( and links therein):

"India Supreme Court orders state government to compensate rape survivor"

Here:

https://www.jurist.org/news/2019/10/india-supreme-court-orders-state-government-to-compensate-rape-survivor/

Posted by: El roam | Oct 2, 2019 5:44:26 AM

By the way DDA,you may find interest in that link( and links to rulings therein) titled:

"India court rules in favor of legal person status for all animals"

Here:

https://www.jurist.org/news/2019/06/india-court-rules-in-favor-of-legal-person-status-for-all-animals/

Posted by: El roam | Aug 24, 2019 6:16:41 PM


Thanks indeed for that link which clarifies it further. According to it, that committee was rather fact finding one, and impeachment can be achieved only by the path provided by the constitution, I quote:

The objective of the “in-house procedure” is to preserve the independence of the judiciary by having the allegations against the concerned judge examined in the first instance by his peers, and not by an outside agency. The nature of inquiry is fact-finding, where the judge would have his say. It is settled law that the inquiry would not be a formal judicial inquiry. It would not involve the examination and cross-examination of witnesses. The committee can devise its own procedure consistent with the principles of natural justice.

End of quotation:

All this is problematic. For, their findings, was by nature and function, sort of ruling,clearing the justice accused. This is problematic. On the other hand, they are justices of the Supreme court, so, the Q is back to the issue, for, who is greater than them, in terms of integrity expected ? If you can't rely upon supreme court justices, then who?

By the way, two women served there in that inquiry. Very bizarre. I shall look further one day to that affair, and shall better understand it.

Thanks

Posted by: El roam | Aug 6, 2019 8:16:38 PM

Thanks so much for these comments. There's been considerable back and forth as to how we should understand what happened during the inquiry process, with commentators (virtually all SC lawyers/law professors) calling it everything from an ad hoc response to a statutorily established in-house process. FWIW, one of the most striking defenses of the Supreme Court's approach was written by a famous SC lawyer and former Attorney General, available here: https://indianexpress.com/article/opinion/columns/supreme-court-ranjan-gogoi-sexual-harassment-allegations-ranjan-gogoi-5725918/.

Even so, it's worth noting two things. First, the Judges Inquiry Act is primarily a procedural statute explaining how you go about impeaching a judge/justice. As far as I know, the complainant was not interested in pursuing impeachment: my sense is that she just wanted the intimidation to be stopped and the damage done to her family acknowledged and addressed. (Again, though, I'm just starting my exploration of this whole mess.) Most of the legal blogosphere focused on the POSH Act (which is specifically oriented towards sexual harassment at work) and a prominent Supreme Court judgment, Vishaka v. State of Rajasthan, that dealt (I'm being super simplistic here) with women's rights at work.

Second, and setting aside the issue of what the complainant wanted (and therefore what kind of investigation was called for) the inquiry that occurred did not--as far as I have heard--follow the terms of the Judges Inquiry Act. There was no motion for impeachment presented to Parliament and the Committee was not constituted by the "Chairman" and did not include anyone save sitting Supreme Court justices.

I think the bigger issue though--and the sticking point for most critics of the Court's behavior--is that the panel was called by the CJI, it was called in short order to sit on a Saturday, it included the CJI himself, and his presence was redacted.

Posted by: DDA | Aug 6, 2019 7:48:24 PM

And here one specific report published:

https://rajyasabha.nic.in/rsnew/judges_inquiry/jic_gangele_report.pdf

Posted by: El roam | Aug 6, 2019 6:34:05 AM

So,I have found it seems the legal basis, and it is the:

"THE JUDGES (INQUIRY) ACT, 1968 "

http://www.prsindia.org/uploads/media/Judges%20(Inquiry)%20/bill88_2007100588_The_Judges__Inquiry__Act_1968.pdf

And one report published ( on another judge )I shall put later.

Thanks

Posted by: El roam | Aug 6, 2019 6:32:20 AM

Interesting, and good luck ahead with that interesting and important project. Yet, you had to reconcile here, with some few words such prima facie contradiction presented here. For, on one hand you write that, I quote:

" But there’s no procedure for handling discipline matters involving the CJI himself. "

On the other hand, you tell us that, I quote:

"....the Court’s first response was an informal (and closed door) “inquiry” comprising a panel of 3 justices "

End of quotation:

So, what was then the legal basis for such panel and inquiry and so forth? We couldn't understand simply ( not withstanding the substantive greater issues, we won't finish here with of course....).

Thanks

Posted by: El roam | Aug 6, 2019 6:13:18 AM

Post a comment