Will truth triumph amidst this judicial medley?

Olav Albuquerque

Nothing is more dangerous than power wielded by a judge who dispenses justice. In the process, truth may be buried forever because it is neither simple nor pure. This became evident with the 46th Chief Justice of India Ranjan Gogoi emerging as the first CJI in Indian judicial history to appear before a three-judge panel on Wednesday to deny his alleged sexual misconduct against a former Supreme Court staffer whom he allegedly transferred to his office-cum-residence in August 2018. She was dismissed on December 21, 2018 for allegedly not reporting for work on a Saturday.

Earlier, the CJI did not endear himself to votaries of natural justice by presiding over a three-judge bench to deny the charges in the absence of the woman and then abstained from signing the order of the bench over which he presided. The woman was denied a lawyer. She was allegedly neither given a copy of her own statement, nor was she told about the procedure which was to be followed by the three-judge committee which she described as “intimidating” and “frightening.” She further alleged she was followed by two men on motorcycles after she left the Supreme Court in a car .

The woman walked out of the hearings conducted by the three judges, two of whom are women—Justices Indu Malhotra and Indira Banerjee. She was told the inquiry was neither an in- house probe nor one conducted under the Vishaka guidelines framed by the Supreme Court itself. This means the apex court has allegedly violated its own rulings- when the accused dignitary happens to hold the constitutional office of CJI, which perhaps implies all are not equal before the law.

Hence, the version of the woman may in all probability be discredited; so, her complaint will be held not to have been proved against India’s seniormost judge, as per the provisions of the Indian Evidence Act, 1872. If media reports are to be believed, the woman was told not to divulge anything to the media and was also promised her job back by the putative next CJI-in-waiting Justice Sharad Arvind Bobde, who chaired the committee.

She reportedly told the judges she was not interested in getting her job back but her family should not be hounded into penury. This speaks volumes about Indian democracy which appears to be the rule of a caucus for their own benefit rather than the rule of the people for the people and by the people.

And so this hapless woman may or may not get the justice she deserves because the global image of the Supreme Court overrides the rights of this 35-year-old woman who has alleged the CJI took an undue interest in her professional and personal life which culminated in his allegedly misbehaving with her. Whether she is part of a larger conspiracy or not has yet to be proved which does not remove the sting from the affidavit she sent to 22 judges of the apex court. For if she has filed a false affidavit, the judges can order her to be sent to jail.

What converts this case into a thriller is the fact that Utsav Bains, the 32-year-old advocate who filed an affidavit alleging the complainant was a front for a larger conspiracy to fix benches and force the CJI to resign before he delivered his judgment in “sensitive matters”, allegedly met the CJI before he filed his affidavit, if advocate Prashant Bhushan is to be believed. This puts a question mark over the role of Bains.

The allegation of sexual misconduct against the CJI now appears to have been allegedly diluted with the charge made of attempts to destabilise the office of the CJI and discredit the judiciary. The woman has given specific details of time and place when she was attached to the office-cum-residence of the CJI which appears to be bona fide.

She has also given details of her brother-in-law being appointed as court attendant and later being sacked. And of her husband and his brothers services being terminated by the Delhi police. The charge that she demanded a bribe of Rs 50,000 from a security guard who was promised a job in the Supreme Court has yet to be proved as must the other charges against her. Until she is convicted, she is presumed to be innocent just as CJI Ranjan Gogoi is also to be presumed innocent, which is why the report of the three-judge panel will be awaited eagerly.

But this report is unlikely to be publicised, so the entire controversy will die a natural death and the office of the CJI will be saved from ignominy on the reasoning that truth is no defence to a contempt charge. This is the same reasoning given in 1982 when it was laid down that truth is no defence to a summons for contempt of court.

This rationale blocked all news of alleged corruption within the judiciary from 1987 until Parliament amended the Contempt of Courts Act, 1971, in 2006 to allow truth to be pleaded as a defence, making a mockery of our national motto of satyameve jayate which means truth alone will triump. For often, it does not.

This is not the first time that a woman has brought down a sitting judge. In April 1990, the late Justice Sharad Desai who was an acting chief justice of the Bombay high court and also an acting governor for Maharashtra had to resign when his brother judge, Madhukar Kenia, recused himself from the bench after being threatened by Thelma Menezes, the woman “friend” of the late Justice Desai. She allegedly threatened Justice Kenia in a family dispute between brothers known as Mehta versus Mehta. Both these builder-brothers are believed to be alive.

Justice Desai was transferred to the Kerala high court on June 8, 1990 but chose to resign from the judiciary. Lawyers’ associations in the city passed no confidence resolutions against four judges, two of whom were Justice Sharad Desai and Justice Madhukar Kenia. Justice Desai alleged Rs 1.50 lakhs was found in the toilet of Justice Kenia.

The advocate general who wrote to the late CJI at that time was senior advocate Arvind Bobde, the father of Justice Sharad Arvind Bobde, who heads the panel hearing the complaint against the woman. It was only when Arvind Bobde, advocate general of Maharashtra, wrote to Governor C Subramaniam in April 1990 outlining the various charges against Desai and Subramaniam sent the message to the late President R Venkataraman, who sent it to the then law minister Dinesh Goswami, that the judges were put in a quandary.

The late CJI Sabyasachi Mukherjee (1989-1990) transferred Justice Desai to the Kerala high court but the judge who was reputed to be a legal expert, chose to resign. So, the fact that judges are men after all who may be swayed by women’s charms is a human failing which is acceptable for lawyers but not for judges.

The late editor of the Loksatta newspaper had alleged that one judge of the Bombay high court was swayed by the persona of a woman lawyer that he allegedly gave all orders in her favour. This was one of the reasons why the high court issued Losksatta a contempt notice to declare truth could not be pleaded as a defence when a contemnor was charged with contempt. Truth is stranger than fiction when judges are accused of misbehavior.

Olav Albuquerque holds a PhD in Media Law. He is a journalist-cum-lawyer of the Bombay High Court.