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Out of a valley of darkness: How, in the face of tyranny, the Supreme Court did right by #InternJudge

Supreme Court: Clear lawns
Supreme Court: Clear lawns

Those who are accusing the Supreme Court of washing its hands of the allegation that a former apex court judge sexually harassed a former intern (“SJ”), have it wrong: in fact, the institution performed a skilful balancing act over several dark weeks that couldn’t have gone any other way.

Reading between the lines, the parts of the judicial inquiry’s report that went public yesterday were damning about retired Justice Asok Kumar Ganguly.

The inquiry of justices RM Lodha, HL Dattu and Ranjana Prakash Desai wouldn’t have taken lightly the decision to write what they did in their official report.

It might not seem like much, but it is highly significant for two ‘brother’ and one ‘sister’ judge to write that they were “of the considered view” that SJ’s written and oral statements “prima facie discloses an act of unwelcome behaviour (unwelcome verbal/non-verbal conduct of sexual nature)” by Ganguly at a room in Delhi’s Le Meridien hotel on Christmas Eve of 2012.

Likewise, Chief Justice of India (CJI) P Sathasivam wouldn’t have taken it lightly to republish that passage in his public statement yesterday, unless that popular legal term ‘prima facie’ (‘on the face of it’) meant more than just “her word against his” in the context of #InternJudge, which has become the affairs’ coyly appropriate hashtag on Twitter.

Sources with knowledge of the inquiry strongly corroborate that SJ’s testimony, witness’ affidavits and the inquiry’s report reference more than just hearsay, with some hints published in a Times of India report yesterday morning.

And despite Sathasivam adding that “no further follow up action is required by this Court” (arguing that Ganguly was already retired at the time of the incident and SJ was not an official apex court intern), the full statement leaves the door wide open.

The police have several already-opened files, and politicians have long begun, perhaps gleefully, sharpening knives in West Bengal, where it is an open secret that the Trinamool Congress has little love lost for Ganguly.

Much ado without anything?

Those who say that at the end of the day, the apex court has achieved absolutely nothing in its inquiry, except for delaying the inevitable political fallout and police investigation, which had been stalled by the court’s administrative procedure, are missing the point and the dynamics.

The Supreme Court as a creature of the constitution is beset from all sides by the tyrannies of power, the commercial interests of the selfish and the inequities faced by the weak.

Behind nearly every action of the apex court, lies the institution’s insecurity that its role as protector of the constitution is precarious and could become compromised. The risk of judges losing their independence and freedom to act is real and should be feared, considering that in recent years they have been the only real counterweight to the excesses and corruption of India’s political and wealthy.

(Exhibit one: The judiciary’s limp-spined conduct during the 1976 Emergency, which Ganguly himself slammed in a rightfully celebrated judgment; exhibit two: the heated battle for what the judicial appointments commission (JAC) will eventually look like.)

Shortage of sticks, too many apples

The judiciary knows as much as anyone that unchecked corruption could destroy the institution from the inside, and even a powerful Chief Justice with a long term and a strong anti-graft agenda, such as SH Kapadia, could only do so much to rein in errant judges in junior benches.

Short of the carrot of elevation to higher benches, which is already a politicised and flawed process, the only stick available to beat bad judges with is the judicial transfer, which is less akin to problem solving than shunting problems from state to state.

Impeachment as an effective check on judicial impropriety is mostly unrealistic, despite former Calcutta high court Justice Soumitra Sen’s resignation in its face. And compared to its aggression over others in public office, the media has traditionally been over-cautious in reporting on the judiciary, partially muzzled by India’s near-draconian contempt rules (witness the silence around the Mysore sex scandal).

Allowing outsiders – i.e., non-judges – too much sway over the judiciary is anathema to many judges, and rightly so because of outsiders’ potential to be corrupted and indirectly used to bully and intimidate judges.

On a scale of judicial impropriety, sexual harassment is an apple to judicial corruption’s orange, but the concerns at play should be similar. Sexual harassment goes to the heart of the public’s trust in the judiciary, its decisions and law making powers.

And though arguments in favour are strong, as outlined in an amicus brief by senior advocates Indira Jaising and Anand Grover, creating an independent panel in line with the Supreme Court’s own Vishaka guidelines is nearly as worrying for judges who fear that false charges could be used to bully them, just as an omnipotent Lokpal or JAC could be influenced politically.

Clumsy but firm

Re-considering #InternJudge, it is clear that only judges could have sat in preliminary judgement of it, or at least have had the first chance to do so.

Despite their clumsy arrangement, the words used by the inquiry (“considered view”, “prima facie”, “unwelcome”, “verbal”, “non-verbal”, “sexual nature”) cover nearly all important bases within the framework of realpolitik they operate in.

Sure, the CJI could be accused of sleight of hand to get out of taking any action: “as decided by the Full Court in its Meeting dated 5th December, 2013, it is made clear that the representations made against former Judges of this Court are not entertainable by the administration of the Supreme Court”, he wrote.

However, careful reading of SJ’s original 11 November interview with Legally India, suggests that some form of alleged impropriety could also have pre-dated his retirement in February 2012: SJ had claimed that three other interns were also harassed by the same judge, though “perhaps” not as overtly as what she had faced.

It is not known whether any tangible evidence of other alleged incidents than SJ’s was presented to the committee, but in any case, other considerations must have outweighed the need for deeper investigation by the committee.

First, the judges were able to present a strong and united front, by not directly throwing a brother judge under a bus as could have been caused by outright damnation or an investigation and verdict beyond reasonable doubt, while allowing the institution to be seen as impartial, despite having sat in judgment over one of their own.

Second, it allows the bench to wrap up its part in the story, which has for too long already cast a shadow over other former judges over whom aspersions were cast because of the allegation, as Ganguly remained un-named for several weeks as the “recently retired” former judge in question.

Third, with the court out of the picture, this has essentially become a story about the chairperson of a public authority.

Beneath the robes

This should not be used as a chance for another media frenzy as in L’Affaire Tejpal, nor, no matter what the outcome, should it be an opportunity to question or unravel Ganguly’s judicial output, which should rightly continue to stand as some of the finest and most important jurisprudence of the Supreme Court of India.

There are horror stories about judges, senior counsel and powerful individuals in all countries; alleged failings of personal character must simply serve as an unfortunate but unsurprising reminder of everyone’s potential for error, including those who are larger than life. But if the institution rises to acknowledge the inevitable existence of the (all-too-)human underneath the robes, this should cement rather than diminish the respect the institution needs right now in India.

A police complaint or other action might now proceed and SJ or others might choose to cooperate with such an inquiry that could take years out of their lives and is therefore a decision only they can make.

While the road ahead is dark and full of peril, one hugely important milestone has already been reached, which years of sensitisation workshops, sexual harassment committees and guidelines have failed to pass: the message is out that sexual harassment needs to be taken seriously, by everyone, whether they like it or not.

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