CJI Gogoi Sexual Harassment Case: Former SC Judge Raises Questions

Justice Lokur questions the “institutional bias” and why the allegation of “victimisation” was not looked into.

File Photo of CJI Gogoi and Ex-Sc Judge Justice Madan Lokur. 

(Photo: Kamran Akhter/The Quint)

Former Supreme Court Judge Justice Madan B Lokur, who has been seen as a close associate of Chief Justice of India Ranjan Gogoi and was one of the four judges who spoke against former CJI Dipak Misra in an unprecedented press conference in 2018, has raised some serious questions against the handling of the allegations of sexual harassment against CJI Gogoi by a female staffer.

Chronicling the events, Retired Justice Lokur writes about “victimisation,” an allegations levelled by the complainant, and “institutional bias,” which Lokur argues had crept in while dealing with the case of the female staffer.

In an article titled ‘A one-sided Justice’ in The Indian Express, Lokur opines, “Given these events, could it not be said that institutional bias had crept in, in the manner in which the allegations of the lady staffer were initially dealt with? To me, the trappings of institutional bias are clearly made out whichever way one looks at the events of 20 April.”

‘Why Was the Mandate of In-House Committee Limited?’

Lokur writes about the dissatisfaction expressed by the Supreme Court Advocates on Record Association (SCAORA) as well as the Supreme Court Bar Association (SCBA) with respect to the events that had transpired, and how they passed independent resolutions which led to the formation of the in-house committee.

The two boards had recommended the formation of a committee by a full court but Justice Lokur in his piece points out that the notice posted on the SC website suggested that the in-house panel was “a decision taken by the CJI and not the full court.”

“Please note, the internal committee was set up by a person charged of unwanted physical contact with a lady staffer and that person chose the judge to inquire into the allegation,” argues Lokur.

He has also pointed out that the mandate given to the committee was “limited to the allegations of unwanted physical contact” and not of victimisation.

“Why was the mandate limited? If there was to be an inquiry by an internal committee, then it should have been in respect of both the allegations, particularly since the affidavit of the staffer does contain verifiable documentary evidence which could lead (if proved) to a conclusion of victimisation,” Lokur writes.

He also questions if another internal committee will look into the allegations of victimisation or will be “forgotten” and “not looked into as not worthy of consideration.”

‘Could the Internal Committee Not Allow a Support Person to the Staffer?’

Referring to the power imbalance between the complainant and Gogoi, Lokur writes that in “matters of alleged sexual offences, judges try to protect the victim from re-victimisation.”

He thus argues that the internal committee could have permitted the comfort of a support person to the female staffer. He also points out that since the proceedings were “informal” the staffer was not even permitted “legal representation.”

Lokur also goes on to question rejecting the “sane advice” given by Attorney General KK Venugopal to constitute an external committee constituting three retired judges of the SC, Lokur argues that if the advice would have been accepted it would have negated the “belief of possible institutional bias.”

The content of the report of the in-house committee has not been disclosed but as per a notice issued by the Secretary-General of the SC, the committee found “no substance” in the staffer’s complaint.

‘Under What Law Can the Report Be Denied to the Complainant?’

After the CJI was given a clean chit the female had asked for a copy of the report, which was denied.

Lokur writes that there is “no prohibition in giving a copy of the report to the complainant – neither the in-house procedure refers to any prohibition nor does the judgment of the Supreme Court refer to any such prohibition.”

“The judgment of the Supreme Court does not say that the complainant is disentitled from getting a copy of the report of the so-called in-house committee,” Lokur writes. 

Citing an older case, Lokur says that a similar question had cropped up before the apex court and the government had claimed privilege under the “Indian Evidence Act” but the defence was rejected.

He goes on to question that under what law the “person charged” was given a copy of the report but the complainant was denied one.

“In my opinion, the staffer must be given a copy of the report of the Committee so that she gets answers to the questions that she and others have raised,” Lokur says.

‘Justice Lokur Setting Standard for Speaking Up for Justice’

Reacting to Justice Lokur’s opinion piece in The Indian Express, Indira Jaising wrote on Twitter, “Justuce Lokur setting standard for speaking up for justice.”

Senior SC advocate Prashant Bhushan also shared the piece and wrote, “Powerful piece by the former No 2 Judge of CJI who was in the PC with him last year, slamming the manner in which the CJI & internal committee of 3 judges have dealt with the serious allegations against CJI.”

Lokur was amongst the four senior most SC judges who had held a press conference against then Chief Justice Dipak Misra in January 2018.

(With inputs from The Indian Express)