Opinion | When the justice system is in the dock

Last year was spectacular for gender justice in India. The #MeToo campaign threw open a lot of ugly doors, forcing us into difficult conversations on sexual harassment. Among other things, we discussed the possible reasons why women take time to come out and complain, why someone who is a good friend or an accomplished professional can also be a sexual harasser.

Beyond what people called “naming and shaming” in public, the metoo movement also forced a senior minister to resign from the Union cabinet. It was clear that the nuances of consent had to be navigated with sensitivity.

Months later, it seems like the country is back to square one, and this time with the top judicial office in the spotlight. Late last week, the Chief Justice of India (CJI) was accused of sexually harassing an employee, a junior court assistant who submitted a written account of it to 22 judges of the Supreme Court. Under the law, as an institutional response to such a complaint, the apex court should have taken cognizance of it, constituted an inquiry committee and served a notice to the respondent. Instead, in response to the allegations, the CJI constituted a “special” bench (of which he himself was a part) with no woman on it, even though the law is unambiguous on how any panel probing such a case must be headed by a woman.

For a man who is the highest arbiter of justice in the country, the manner in which the CJI responded to the sexual allegations showed not just a lack of sensitivity, but also of propriety. In his defence, he appeared to cast doubt on her integrity and tried to contrast it with his own, which he sought to establish via the irrelevant example of a modest bank balance. Moreover, he used his constitutional position to defend himself from a charge of personal misconduct. He went as far as to contend that the complaint was an attack on the judiciary. All of this has compromised the reputation of this august institution—putting its independence at some risk of erosion, perhaps.

Today, groups of lawyers are speaking against the allegation, calling it a “conspiracy” against the CJI and rallying in his favour online. This, at best, is a secondary issue (to be addressed separately). So heated has the controversy become since the sexual harassment story broke, that one essential fact nearly got lost in the din—that the law is yet to begin taking its due course.

An internal panel of three apex court judges, including a woman judge, has finally been formed to look into the matter. This should have been done on the very first day. Now that it has been, how fairly it fulfils its mandate will be under watch.

The precedent that the Supreme Court sets with this case is likely to serve as a template for future charges against chiefs of the state’s most vital organs. Even if it happens to come down to “his word against hers”, as many cases of this nature sadly do, India needs clarity on how justice is to be upheld under such circumstances.

Meanwhile, as a matter of principle, a complainant must be shielded from all verbal aggression. Also, an allegation’s timing should not be used to impute motives. Whether or not sexual harassment was committed is all that is of relevance to such cases. This point was a major gain of the #MeToo movement. It must not be lost.