When the news came out that sexual harassment case against the Chief Justice of India would be heard by an internal committee, it was widely anticipated that it would be decided in the favor of CJI which has proved to be true as the in-house inquiry committee found “no substance” in the allegations of sexual harassment against the CJI Ranjan Gogoi and gave him a clean chit.

It has been quite a disturbing scenario how this enquiry has been held, especially the hasty nature of it. Although it is a skeptical question whether the complainant in this case is being honest about the nature of complaint or not since there are many conspiracy theories floating around. It is true that such complaints can be weaponised and manipulated but that is not the only focal point of this unique case.

Even assuming that the woman was completely wrong, she still has a constitutional right to the procedure established by law.

Since this case involves a complaint against the CJI who is at the top most position of the judicial hierarchy, it is important to understand that this case will set out a benchmark for similar cases in the times to come.

At first it looked like that SC was trying to remedy the situation wherein CJI was made a judge in his own cause, which defied the basic rule of natural justice and was the lowest point in the judicial history.

Ideally the investigation in such a case should have been conducted by an external committee but instead of doing that the court included two women judges to compensate the existing lacuna.

One question here is that does the Supreme Court has its own sexual harassment committee? The Supreme Court has a Gender Sensitization and Internal Complaints Committee (GSICC), in line with the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act 2013, to look into the charges and complaints of sexual harassment. The cases and incidents of sexual harassment that take place within the Supreme Court premises can be probed by this Committee.

But this committee is not of any use in this case because the GSICC cannot probe allegations of sexual harassment made against judges. It is only applicable to lawyers, staffers, and any other member employed within the Supreme Court.

Furthermore, any step or action that has to be taken by the GSICC needs to be recommended to the Chief Justice of India first, and only the CJI can approve of any action against the accused.

Therefore, this complaint brings out a complete unique scenario because top most official of the Indian judiciary is the prime accused.

In such a case, having an external enquiry could have ensured that the judiciary is viewed as an impartial body.

The complainant in this case had asked to be represented by a lawyer or an amicus curiae which was her basic right and also a reasonable request coming from someone pitted against the Chief Justice of India, but the same was denied.

Justice Chandrachud in his letter stated that it is a ‘question of her dignity’ which needs to be protected. The letter also said that provision of a lawyer is not a privilege but “a matter of right” for the complainant. Justice Chandrachud argued for an external member to broad base the committee and suggested the names of three retired women Supreme Court judges to choose from. But clearly the suggestion was overlooked.

The complainant gave a detailed explanation of the incident of sexual harassment in her affidavit which was much required to be probed extensively and it is not justified to investigate and dispose off the matter in a short span of three days.

The court could have used this as an opportunity to set out a standard operating procedure or in-house mechanism for dealing with such complaints which would have led to a brighter future for justice delivery system in India.

The complainant was told that her own testimony would not be given to her because the inquiry is confidential. She also asked for procedural guidelines before the committee began it’s inquiry, but the same was not supplied. These facts about the in-house enquiry raises substantial questions.

Former Delhi HC Chief Justice, A P Shah says, “I believe that as per the law laid down in Indira Jaising’s case, the report of this inquiry will not be available to the public, nor can anyone challenge it. So this has resulted in a complete mockery of justice…I believe, like ADM Jabalpur, this episode is going to haunt the Supreme Court in the years to come. [The ADM Jabalpur judgement delivered by the Apex Court in 1976 upheld the suspension of Right to life by Presidential Order, legitimizing the Emergency].

The fact that judges cannot be probed for allegations is highly problematic and needs immediate attention. The judges should not forget that the institution is greater than the individual.

To remember the words of Justice Verma who said, ‘Be you may ever so high, you are not above the law.’