J 2020 10 GJLDP October 114

SCC Online Web Edition, Copyright © 2021
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Printed For: Sumohiotha V, National Law University Orissa
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(2020) 10 GJLDP (October) 114
In the Matter of Great Public Importance Touching upon the Independence of

Judiciary -A Great Opportunity Missed
IN THE MATTER OF GREAT PUBLIC IMPORTANCE TOUCHING UPON THE INDEPENDENCE OF

JUDICIARY -A GREAT OPPORTUNITY MISSED
by
Sanjeev Kumar Choudhary*
ABSTRACT
“In general, court confines its findings and remarks within the realm of the
dispute at hand. However, when the issues addressed are of larger public
importance, remarks become significant for the public at large. The remarks and the
guidelines issued by the judiciary time-to-time through various judicial
pronouncements have positive impacts in the life of the citizens. It also fosters
confidence in the citizens that judiciary, which is an independent institution, will
protect their rights in case of infringement/curtailment, by deciding the issues
following the principle of natural justice and without being biased at all.
Fortunately, our judiciary had stood firm in protecting the faith and keeping the
trust of citizens intact. One such prominent example is the Vishakha Guidelines.
Therefore, we, as a citizen, have immense faith in our judiciary : especially in the
Supreme Court of India. However, the unprecedented and historic press conference
by the four then senior most Judges of the Hon'ble Supreme Court of India in the
month of January 2018, indicating the need of preservation of the institution for the
survival of democracy, has raised serious concerns in the common public. Later, the
issue pertaining to the allegation of sexual harassment against the then Chief
Justice of India, Hon'ble Mr. Justice Ranjan Gogai, the comment of the then Chief
Justice thereon, incidental issues brought on record in the meanwhile, have raised a
thoughtful concerns in the mind of the citizens. Probably, for the first time in the
history of the Supreme Court of India, such allegation has been raised against the
sitting Chief Justice. The matter is resolved now. The then Hon'ble Chief Justice had
been given a clean chit and recently, the complainant have also been reinstated in
the service. But, certain concerns remained answered. This article is an attempt to
identify those
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concerns, to analyze the popular public perception pertaining to the concerns and
most importantly, to evaluate conduction process implied to resolve the dispute in the
light of principle of natural justice and also to analyze its impact on the judicial
independence.”
1. INTRODUCTION
‘Legislature, Executive, and Judiciary’ are identified and recognized as three
important pillars establishing and sustaining the Constitutional Democracy. Surely, for
this reason, the framers of the Indian Constitution, after deliberate discussion, have
brilliantly carved out the provisions separating the powers, roles, and responsibilities
of these indispensable organs in the Constitution of India.
Media, due to its immense role in mass communication, has been acknowledged
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and also recognized as the fourth pillar of the democratic set-up of the Country. It
performs one of the very important responsibilities of transferring the information to
the citizens at large, which the citizens have the right to know in the constitutional
democratic set-up of our country. It also brings out many issues in front of the citizens
for their consideration and deliberation when an attempt is made out to subvert the
settled principle of democracy.
Judiciary had been and is discharging an important role of establishing the ideals of
democracy as thought by the makers of the constitution through a rightful
interpretation of the provisions of the Constitution. However, it is seen that on
numerous occasions judiciary has been criticized on account of its accountability.
Recently, the critics have raised concerns in relation to the conduct of the highest
judiciary on the ground of failing in its accountability pertaining to upholding the
principle of natural justice in the matter related to the allegation of sexual harassment
against the Hon'ble Chief Justice of India and incidental matters brought on record
thereto. A lot had been discussed, not just in national but also in international media,
raising several concerns sufficient enough to distort the long held impression, image
and goodwill
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of the highest judiciary on one hand and the right of reputation of women in our
country on the other.1
The three-judge Investigating Panel of the Supreme Court comprising of the then
Hon'ble Mr. Justice S.A. Bobde, Hon'ble Ms. Justice Indu Malhotra, and Hon'ble Ms.
Justice Indira Banerjee had given the then Hon'ble Chief Justice of India a clean chit in
the matter pertaining to the allegation of sexual harassment against him. Though the
matter is resolved by this clean chit, however, it has raised many questions in the
mind of people and it appears, those questions remained unanswered. It seems the
Court missed this opportunity to showcase the strength of Indian judiciary and its
commitment of being accountable even when the stakes are high. One of the very
important questions that needs a deliberate discussion is, “Whether Justice has been
done in the case?”
This article is an attempt to understand the legal and social aspects attached with
the matter so as to reach at a convincing answer to the question posed in the above
paragraph. It is therefore, important to understand the laws that govern the various
issues involved in this matter; such as judicial independence, the basic structu
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re of the Constitution, judicial accountability and sexual harassment at workplace. It is

also important to understand theirs importance in developing the everlasting faith of
the citizens in the highest judiciary - the Supreme Court of India.
2. INDEPENDENCE OF JUDICIARY
Judicial independence, which first developed in the Anglo-American legal system, is
valued by many countries as an important condition for adherence to the rule of law.2
Our national motto of ‘Satyamev Jayate - Truth Prevails’ squarely depends upon the
judicial system which remains fearless, neutral and free from all malice and thereby
infuse the confidence in the people that their liberty and dignity are protected.3
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Independent judiciary is essential for creating a free society under constitutional
democracy ensuring the rule of law and realization of human rights and also the
prosperity and stability of a society.4 The existence of independent judiciary in any
legal system, however, depends on concrete institutional arrangements.5
Such concrete institutional arrangement was there in the mind of makers of our
Constitution. While replying to a question raised, Dr B.R. Ambedkar, Chairman of the
Drafting Committee of the Constituent Assembly on May 24, 1949 had clearly
suggested of these arrangement when he said,
“There can be no difference of opinion in the House that our judiciary must both
be independent of the executive and must also be competent in itself. And the
question is how these two objects could be secured”6 .
Dr. Rajendra Prasad, President of the Constituent Assembly in his speech to the
Constituent Assembly of India, preceding the motion to
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adopt the Constitution on November 29, 1949 had reiterated the same when he said,
“We have provided in the Constitution for a judiciary which will be independent.
It is difficult to suggest anything more to make the Supreme Court and High Courts
independent of the influence of the executive. There is an attempt made in the
Constitution to make even the lower judiciary independent of any outside or
extraneous influence”7 .
It is not India alone, even Sir Winston Churchill, during the parliamentary debate in
the House of Commons, had once said reflecting the importance of independence of
judiciary,
“The principle of complete independence of the judiciary from the executive is
the foundation of many things in our island life…The Judge has not only to do
justice between man and man. He also - and this is one of the most important
functions considered incomprehensible in some large parts of the world - has to do
justice between the citizens and the State”8 .
The executives and the legislatures carry enormous governmental power having
sufficient potential for abuse, and hence, an independent judiciary is very essential to
safeguard the rights of the people.9 As India's first Attorney-General and one of its
most distinguished jurists, Mr. Setalvad10 , also pointed out,
“An impartial and independent judiciary was gradually built up in the British
times. The Constitution of India continued and strengthened this tradition by
incorporating into itself what may be called an integrated judicial system designed
to function impartially beyond the range of executive influence and irremovable
except by Parliament under circumstances prescribed by the Constitution. A judicial
system of this nature
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was essential in order to preserve and maintain the ideals of democracy and freedom
and of the Rule of Law embodied in the Constitution”11 .
Independence of judiciary is considered even by the early philosopher as a

precondition for obtaining justice, as Marx rightly says,
“The Judge has no other superior except the law, judge is obliged to interpret the
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law when applying it to a particular case in the way he comprehends it upon
conscientious consideration”12 .
Almost all democratic countries responded to judicial independence concern by
making strict separation of powers between judiciary and executive. Prof. K. T. Shah13
in Constituent Assembly Debate stressed that it is not merely the separation but the
independence which is of utmost importance, as it is the main bulwark of the civil
liberty in democratic society.14 The democratically constituted bodies in the form of
legislature capable to enact law, alone is not sufficient, it needs an independent
judiciary to give just interpretation is highly essential in Indian context.15
To maintain the independence of judiciary, the Constitution of India provides for all
possible safeguards by asserting separate provisions for appointment, salary, service
conditions, reviewing power etc. of the Supreme Court16 and High Courts17
respectively. It also keeps insulated the judges and the staff of subordinate judiciary18
from the executive by vesting control of all rights pertaining to appointment, posting
and other service conditions to the concerned high courts.
So, it is clear that the independence of judiciary is indispensable to the
constitutional democracy and the same had been accepted by almost
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all democratic countries, political philosophers, constitutional scholars and also the
champions of social rights.
The framers of the Constitution of India, therefore, vested the power of judicial
review in the hand of an independent institution - the Supreme Court and the High
Courts; subject to the constitutional provisions and limitations. However, a very
important development took place in Kesavananda Bharti case19 , which addressed the
question, ‘whether exercising power under Article 368, can parliament amend any
provisions of the Constitution’. While answering this question, the Hon'ble Supreme
Court, though kept the supremacy of the Parliament in the matter pertaining
to the framing, amending and repealing the laws but made it subject to the
‘Basic Structure of the Constitution’. As per the decision, the parliament is
competent to amend any part of the Constitution subject to the basic feature of the
Constitution. Interestingly, independence of judiciary was recognized as one of
the basic structure of the Constitution.20 Further, doctrine of separation of
powers21 was also considered as the basic structure. These recognitions further
strengthen the idea of constitutional democracy as envisaged by the framers of the
Constitution and the importance of judiciary for sustaining the constitutional
democracy.
Prof. Dietrich Conard, former Head of Law Department, South Asia Institute,
University of Heidelberg, Germany, brought the concept of basic structure doctrine, for
the first time in a lecture delivered by him.22 His reflections on the “basic structure
doctrine” of the Indian Constitution left an enduring imprint on the Indian
Constitutional Jurisprudence.23 The Supreme Court of India through Kesavananda
Bharti case24 recognised and legalised the basic structure doctrine. Through this
judgment, the Court imposed a check on legislature with respect to the amending
power of the
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Constitution provided under Article 368. The absolute power enjoyed is now subject to
the basic Structure, i.e. Parliament cannot amend the basic structure of the
Constitution. Undoubtedly, it has immense impact on the role of judiciary in
democratic society and also on the doctrine of separation of power.
Interestingly, the decision of Keshvanand Bharti case has not defined exhaustively
what constitute the basic structure of the Constitution, and the same was left to be
decided on a case-to-case basis. In the recent past, the Court has recognized various
different things as the basic structure of the Constitution. Deriving authority from the
judgment, the Supreme Court in I.R. Coelho25 case examined the extent of the
possibility of judicial review of any law placed under ‘the Ninth Schedule’26 . The
blanket cover provided from the judicial review under ninth schedule, after the
judgment, no longer remained intact. In fact, the Court held that any law incorporated
into the Ninth Schedule post April 24, 1973, i.e. after the pronouncement of
Keshwanand Bahrti judgment, would be subject to the judicial review and could not
violate those provisions in Part III that form part of the basic structure.27
Since then, the decision has been used as an instrument to check the
constitutionality of the constitutional amendments. The attempt was made
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to expound the basic structure principle, and provided some measure of concrete basis
for its application through Indira Nehru Gandhi v. Raj Narain28 , Minerva Mills Ltd. v.
Union of India29 and Waman Rao v. Union of India30 .31
In S. R. Bommai case32 , the Supreme Court held secularism to be a part of the

“basic structure” and held that any state that violates this would consequently invite
the president's rule, thereby extended doctrine to executive action.33 In the landmark
judgment of Supreme Court Advocates-On-Record Assn. v. Union of India34 (NJAC
judgment), it was observed by Justice Khehar that for examining the constitutional
validity of an ordinary legislative enactment, all the constitutional provisions, on the
basis of which the concerned “basic features” arise, are available and even the breach
of a single provision is sufficient to render the legislation as unconstitutional.35 It is
being now accepted by the academia and the jurists that the basic structure doctrine
is ‘a full-fledged doctrine of constitutional judicial review’, capable of invalidating not
only constitutional amendments, but also ordinary legislation and executive action.36
The Supreme Court on many occasions through several judgments reiterated that the
‘separation of power, and ‘independence of judiciary’ are the basic structure of the
Constitution.
As basic structure doctrine imposes a check on the legislative power, principle of
natural justice extends a restriction on misuse of executives’ power.
3. PRINCIPLE OF NATURAL JUSTICE
The principle of natural justice guarantees the procedural fairness and thereby
instill the faith of citizens in justice dispensing system which
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ultimately strengthen the confidence of citizens in the constitutional democracy.37
The Constitution of India, through its preamble, clearly envisages to secure justice -
social, economic, and political to its citizens. In this aspiration of securing justice, the
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natural justice is already inherent. The Supreme Court38 and High Courts39 are
empowered to check the impropriety of procedure or a disregard of judicial process, or
principles of fair hearing.40 Opportunity of hearing to both the parties, hearing before
the impartial tribunal so that no one becoming the Judge of his own cause, process of
decision making in good faith, and opportunity to render evidence and its counter
respectively, are the elements of the natural justice in accordance with Hugh Evander
Willis- a famous Constitutional Law expert of the United States.41 Whereas, Hood
Philips,had said that the concept refers principally to two fundamental principles of
procedure : that whoever takes a decision should be impartial, having no personal
interest in the outcome of the case (nemo judex in re sua) and that a decision should
not be taken until the person affected by it has had an opportunity to state his case
(audi alteram partem).42
So, primarily the two rules are recognised as fundamental to the principle of natural
justice, ‘audi alteram partem’ and ‘nemo judex in causa sua’
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i.e., one should hear the other side and that no one should be the Judge in his own
case respectively.43 In Meneka Gandhi44 , a decision of seven Judge bench comprising
of the then Chief Justice of India Hon'ble Mr. Justice H. M. Beg, the Supreme Court
observed natural justice as a great humanizing principle intended to invest law with
fairness and to secure justice.45 In the famous case of Tulsiram Patel46 , the five judge
bench of the Supreme Court of India comprising of the then Chief Justice of India,
Hon'ble Mr. Justice Y. V. Chandrachud, identified these two rules representing the
principle of natural justice in judicial, quasi-judicial and administrative process.
Hence, in the process of dispensation of justice to the parties, any authorised body
performing judicial functions or even administrative functions, are accountable to
uphold the Principle in their transaction of business. United Nations Basic Principle of
Independence of Judiciary also recognize the importance of the principle of natural
justice towards making an accountable judiciary.47
4. JUDICIAL ACCOUNTABILITY
The governing structure proposed by the Constitution of India prescribes the
mechanism to uphold the recognized rights of the citizen. It stresses upon the sense
of honest performance of the duty by the individuals. It empowers the officials and the
institutions responsible for effectuating rights and duties by bestowing certain
immunities in favour of them. But, such immunities are given with an intention to
provide the safeguard and not for protecting the wrongful act of the institution/person
concerned in the exercise of their power. This sense of balance, in the exercise of
power in good faith in accordance with the laid down laws and the justifiability
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for contemplated human error under immunity, brings the concept of accountability.
To practice this balance in day-to-day working within the

institutions/officials/individuals, the Constitution of India mandated to adhereto the
rule of law. In simple words, it means that the Constitution of India is supreme and
every legislations, regulations and rules passed by the competent authority must be in
conformity with the Constitution of India. Also, everyone shall be treated equally
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before law and no one is above law.
The doctrine of Rule of Law as enunciated by Dicey48 has been adopted and very
succinctly incorporated in the Constitution of India. It is quite reflective in the
Preamble of the Constitution itself. The important tenets of the rule of law i.e., justice,
liberty and equality are very much made part of the Preamble of the Constitution.
Recognition of fundamental rights, prescription of directive principles of state policy,
conceptualization of independent judiciary, right of judicial review of the action of
legislature etc., are all the various ways well recognized in the Constitution to
establish the rule of rule of law.
Further, the procedure adopted to decide any claim of the individuals among
themselves, any action/order of the government, direction of any institution made
applicable over anyone etc. have to stand the test of principle of natural justice else
they will be held as unlawful. So, the authority
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may bring any law, regulation, rules, prescribe any procedure, but it must be correct
on the accepted notions of principle of natural justice.
The five Judge bench of the Supreme Court emphasizing the duty of the Judges to
maintain high standards of conduct observed in Veeraswami case49 ,
“The society's demand for honesty in a Judge is exacting and absolute. The
standards of judicial behavior, both on and off the Bench, are normally extremely
high. For a Judge to deviate from such standards of honesty and impartiality is to
betray the trust reposed on him. No excuse or no legal relativity can condone such
betrayal. From the standpoint of justice the size of the bribe or scope of corruption
cannot be the scale for measuring a Judge's dishonours. A single dishonest Judge
not only dishonours himself and disgraces his office but jeopardizes the integrity of
the entire judicial system.”
Later, in C. Ravichandran Iyer case50 the Supreme Court in the same manner
observed,
“Judicial office is essentially a public trust. Society is, therefore, entitled to
except that a Judge must be a man of high integrity, honesty and required to have
moral vigor, ethical firmness and impervious to corrupt or venial influences. He is
required to keep most exacting standards of propriety in judicial conduct. Any
conduct which tends to undermine public confidence in the integrity and
impartiality of the court would be deleterious to the efficacy of judicial process.
Society, therefore, expects higher standards of conduct and rectitude from a Judge.
Unwritten code of conduct is writ large for judicial officers to emulate and imbibe
high moral or ethical standards expected of a higher judicial functionary, as
wholesome standard of conduct which would generate public confidence, accord
dignity to the judicial office and enhance public image, not only of the Judge but
the court itself. It is, therefore, a basic requirement that a Judge's official and
personal conduct be free from impropriety; the same must be in tune with the
highest standard of propriety and probity. The standard of conduct is higher than
expected of a layman and also higher than expected of an advocate. In fact, even
his private life must adhere to high standards of probity and propriety, higher than
those deemed
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acceptable for others. Therefore, the Judge can ill-afford to seek shelter from the fallen
standard in the society.”
For a common man the court means the judges who adjudicate the disputes finally.
For them constitutional jurisprudence is not that important as the values system that
form the basis of a disciplined social life. It is rightly pointed out by Justice Iyer51 ,
“Our founding fathers have laid down for us a constitutional jurisprudence of
judicial power, but the integral component of judicial accountability has not been
designed with a sense of principled pragmatism. As a result the escalating
misconduct of Judges has often gone unpunished. Barring the extreme measure of
impeachment, the law is silent, so much so that one might well say that the
accountability of the judiciary is the vanishing point of jurisprudence. This void,
unless competently covered by well thought-out legislation, is bound to under-
mine the democratic credibility of the judiciary”.
Separation of powers, which is fundamental to principle of accountability, is more
easily said than observed and implemented seriously. There are always indigenous
complications in democratic system which eventually leads to a crisis52 , if not dealt
well in advance.
As noted by Prof. Sathe53 in his review work, Prof. Baxi precisely pointed out that,
“The structure of a social system allows fewer possibilities for problem solving
than are necessary for continued existence of the system. Where people desire
changes but are unable to attain it, there arises a perception of crisis. Crisis is not a
situation, it is incapacity to act. Among various crisis, the first and the foremost is
the crisis of legitimation of law. The values and institutions of the law are being
continually and expansively challenged. Legality is not legitimacy any more for the
masses of the people”.
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The assumption, that wherever there is power there is accountability, i.e. power
would know its limit and its proper uses, may or may not hold true especially because
power will not always hold itself bound by the law and even sometimes the
Constitution, as the constitution which structured power is now constituted and re-
constituted by power.54
Amidst the view that the power structure the constitution accordingly, Justice
Krishna Iyer55 in his article pointed the accountability issues pertaining to the
judiciary. He went up to saying,
“My appeal to parliamentarians is to wake up and implement glasnost and
perestroika in the judiciary. They control the executive and strike down laws you
make. Who controls them? In the name of independence you cannot have judicial
absolutism and tyranny.”
It is probably the reason for bringing ‘The Judicial Standards and Accountability Bill,
2010’ which tries to lay down the enforceable standards of conduct for Judges. It also
requires judges to declare details of their and their family members’ assets and
liabilities. Importantly, it creates mechanisms to allow any person to complain against
judges on grounds of misbehavior or incapacity. However, this could not passed yet,
and hence, presently the only act available is the Judges (Inquiry) Act 1968. It is
further important that whether the Act is sufficient to tackle the issues of sexual
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harassment against sitting judges to the level of CJI is another big question in itself.
Even before the Judicial Accountability Bill, 2010, could get passed, it faced quite a
lot of opposition. The former Chief Justice of Madras and Delhi High Courts, Justice Ajit
Praksh Shah in his article56 raised several concerns. He pointed out,
“In a system where half the litigants must necessarily lose their cases and where
most complaints against judges are frivolous, the Bill, if implemented, would mark
the beginning of the end of the judiciary”.
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The major point that was flagged under the Bill by Justice Prakash is the ‘Complaint
Procedure’, which empower the proposed Judicial Oversight Committee to examine the
complaint received in writing either to dismiss or to make a reference to Parliament for
removal of judges, issues advisories, withdraw judicial work or even to make request
to voluntary retirement; a major setback to the constitutionally afforded judicial
independence in the light of Article 124(4)57 .
The Constitution of India has no provision for inquiring into complaints against the
Chief Justice or companion judges sitting or former. Only when parliament initiate
impeachment proceeding, the inquiry into misconduct is contemplated, for which the
Parliament enacted the Judges (Inquiry) Act, 1968, prescribing procedure for the
investigation and proof of misbehavior or the incapacity of the Judge.
The allegation of sexual harassment, in the light of the proposed definition of the
misbehavior - ‘corruption or lack of integrity which includes delivering judgments for
collateral or extraneous reasons, making demands for consideration in cash or kind or
any other action… which has the effect of subverting the administration of justice’
under the Judicial Standards and Accountability Bill, 201058 , will certainly be a
misbehavior. However, the bill is yet not passed and the hence, the Judges (Inquiry)
Act, 1968 remains the operative law.
But, it will not come in operation till the motion for impeachment is not admitted in
the Parliament. Hence, legally it is quite difficult to punish the Judges following this
route in case of sexual harassment allegation.59
Moreover, the act of sexual harassment is not just a misconduct or an offence but a
moral wrong; indicative of the degradation of the value system essential for a coherent
society. Hence, at the institutional level, it must
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be thwarted with all rigor to keep the value system of our society intact. Fortunately,
none other than the Supreme Court of India itself, have taken a positive step in this
direction through Vishaka Case.
5. SEXUAL HARASSMENT ACT

The Supreme Court of India in its landmark judgment of Vishaka60 framed the
guidelines and issued directions to the Union of India to enact an appropriate law for
combating workplace sexual harassment. Following this judgment, with an objective of
protecting the fundamental rights, the right of equality and the right to lifeof working
women, the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and
Redressal) Act, 2013 (POSH Act) was enacted by the Ministry of Women and Child
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Development, India, and subsequently, the Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Rules, 2013 was notified.
The POSH Act defines61 ‘sexual harassment’ in line with the Supreme Court's
definition of ‘sexual harassment’ in the Vishaka Judgment. As per the POSH Act,
‘sexual harassment’ includes unwelcome sexually tinted behavior, whether directly or
by implication, such as,
i. Physical contact and advances,
ii. Demand or request for sexual favours,
iii. Making sexually coloured remarks,
iv. Showing pornography, or
v. Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.
The POSH Act also requires an employer to set up an ‘Internal Committee’ (IC) at
each office or branch of an organization employing ten or more employees, to hear and
redress grievances pertaining to sexual harassment.62
Following Vishakha Judgment, the Supreme Court of India along with the Act came
up with ‘Gender Sensitization & Sexual Harassment of Women at the Supreme Court of
India (Prevention, Prohibition and Redressal) Regulations, 2013’ (the Regulation),
which makes the Chief Justice of India
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as the Appropriate authority63 competent to constitute by order the Gender

Sensitization and Internal Complaint Committee (GSICC)64 . In case, an allegation is
made against any members including chairperson of the GISCC, in such circumstances
the Chief Justice of India (CJI) is empowered to take necessary action.65 GISCC is
competent to pass appropriate order66 on the inquiry report submitted to it by the
Internal Committee appointed to conduct the inquiry. An aggrieved party may make a
representation67 to the CJI against the order.
In exercise of the powers68 conferred by the Gender Sensitisation & Sexual

Harassment of Women at the Supreme Court of India (Prevention, Prohibition and
Redressal), Regulations, 2013, GSICC framed the Guidelines called the ‘Gender
Sensitization and Sexual Harassment of Women at Supreme Court (Prevention,
Prohibition and Redressal) Guidelines, 2015’ (the Guidelines) which empowers the
internal inquiry committee to ‘proceed ex-parte and also recommend the termination
of proceeding’69 in appropriate cases and.
6. THE CASE AND THE CONCERNS
On Friday, April 19, 2019, a sexual harassment complaint was made against the
then Hon'ble Chief Justice of India by an ex junior court assistant through an affidavit
sent to 22 sitting Judges of the Supreme Court of India calling for an inquiry. The
details of the allegation was also brought to the public domain by the complainant70 .
The very next day, Saturday, April 20, 2019, a special bench of the Supreme Court
comprising of then Chief Justice of India Hon'ble Mr. Ranjan Gogoi, Hon'ble Mr. Justice
Arun Mishra, and Hon'ble Mr. Justice Sanjiv Khanna had met for a special sitting to
discuss the allegation against
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the Chief Justice. The Chief justice denied all charges and said, “There is a larger
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conspiracy to destabilize the Judiciary.”71
Hon'ble Mr. Justice Arun Misha pointed, “People have faith in the system, in the
judiciary. If such unscrupulous, scurrilous allegations are raised, how will courts
function?”72
Senior advocate and the Supreme Court Bar President, Advocate Rakesh Khanna
raised the concerns about the violation of the sexual harassment act as it prohibits the
disclosure of the names of the complainant and the accused.73 Also, former Attorney
General Shri Mukul Rohatgi said that the allegations were an attack on the judiciary.74
Even, the then solicitor general Shri Tushar Mehta wanted serious action as it
appeared to him a blackmail technique.
The then Hon'ble Chief Justice had also said, “The responsibility of holding a special
sitting is mine. I’ve taken this unusual and unprecedented step because things have
gone too far. The judiciary cannot be targeted.” He further said, “Considering the very,
very important cases that are due to be heard next week, they want to destabilize the
office of the CJI. Independence of judiciary is under very, very serious threat.”
The Supreme Court press release in this regard termed the meeting as “a matter of
great public importance”. It said that it's in the “Chief Justice's court to deal with a
matter of great public importance touching upon the independence of the judiciary, on
a mention being made by Tushar Mehta, Ld. Solicitor General”75 .
In the light of unprecedented historical press conference made the four senior
sitting Judges of the Supreme Court, the statement of the Chief Justice alleging a
deliberate attempt to destabilize judiciary becomes more serious. It cannot be ignored
at all, rather must not be ignored at all as it is directly connected with the faith of
citizens in the judicial system.
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However, at the same time it is also important to take note of the fact that many
legal experts, practicing lawyers and journalists raised a question on the legality of the
hearing especially on the moral and on the ground of principle of natural justice citing
the presence of the then Chief Justice on the Bench. Though, the order was not signed
by the Chief Justice, still his presence on the bench was objectionable in the eyes of
the experts.
The then Supreme Court Bar Association Secretary Vikrant Yadav said, “The
executive committee has resolved that procedure adopted for conducting the court
proceedings on April 20 in the matter of allegations made by ex-employee of the
Supreme Court against the Chief Justice of India is in violation of the procedure
established by law as well as principles of natural justice,”76
However, there was consensus among all the legal luminaries that a thorough
investigation was needed into both the women's allegation and the worries of a
conspiracy as pointed out by the then Chief Justice.77
After a full court hearing of all the Judges of the Supreme Court, a panel of three-
judges was set up to look into the allegation against the then Chief Justice.
Finally, the three-judge Supreme Court Panel investigating the allegation of sexual
harassment against the then Chief Justice gave him a clean chit in the matter. The In-
House Committee headed by Hon'ble Mr. Justice Bobde said that it did not find any
substance in the allegation of the former Supreme Court employee who had accused
the then Chief Justice.78
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But, the complainant after the clean chit given to the then Chief Justice by the in-
house panel comprising of three-judge raised serious apprehensions and said, “I, the
woman complainant, a former SC employee, am not just highly disappointed and
dejected to learn that the In-House Committee ‘
Page: 134
has found no substance’ in my complaint, but feel that gross injustice has been done
to me as a woman citizen of India.”79
In the meantime, during the period of making complaints and its’ disposal, many
issues came on surface. All of them were appalling. It led a clear divide in the social
sphere. The two very important facets of the case seems competing with each other in
the realm of the society. The competing facets were - the protection of women at
workplace and the dignity of the highest judicial office of the country. As mentioned
above, a clear divide was observed among the people in the society. Whether the
disposal of the complaint resolved that divide or not, is a million dollar question to
ponder upon.
7. ANALYSIS OF THE HANDLING OF THE CASE
Several concerns had been raised by the prominent legal luminaries pertaining to
this case. Some were questioning the procedure adopted by the Court while others
was raising question with respect to the conduct of the complainant; especially of
making the complaint public. There was also quibble with respect to ex-parte hearing.
The three-judge panel report have not been made public citing the rationale of
Indira Jaising case80 and hence, We don't know the basis of reaching to the conclusion
which enabled the in-house panel to give clean chit to the then Chief Justice in the
matter. Whatever it may be, being a citizen, everyone has faith in their lordships and
will remain forever.
However, the important questions raised in the public domain can also not be
overlooked at all. As far as the very first step of conducting a hearing wherein the
Chief Justice himself was present, though the Chief Justice refrained himself from
signing the order and thereby on technical front appeared to be upholding the law, did
not absolve him from the responsibility of creating an upper edge in the matter
because of him holding such an influential position in relation to those who had been
authorised
Page: 135
to resolve the dispute, especially when the whole issue is looked from the complainant
side.
It was indeed an unprecedented circumstances for the Chief Justice as well. In

absence of any procedure prescribed in the Regulation for such circumstances wherein
an allegation was to be made against the Chief Justice itself, he seemed to be free to
use his wisdom. However, exercise of wisdom must be judicious, fair and equitable. It
could have been better if at the very beginning he would have made himself available
with the issue to get the rightful suggestion for the best recourse available in the light
of the objectives of the POSH Act in front of the all Judges, i.e., for a full court hearing.
Eventually, however, the matter had been finally referred to and the appointment of
the in-house three-Judge panel was the outcome of the full court hearing.
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-
Why In-house Ad-hoc Committee? Why not a committee comprising of the member
as suggested in the POSH Act for ‘Internal Complaint Committee’? These were also a
concern properly reflected in the social as well media discourse. There were lot of
prominent people supporting for having a committee comprising of woman presiding
officer, women members of employee and of course, women member from NGO
working for the cause of women empowerment. Had it been, it would have been much
better but just because it was not, it never mean that whatever had been done ceased
to have legal backing especially when no prescription is made in the Regulation for
such a situation. However, the making the report unavailable even to the complainant
probably did not absolutely justify the defence taken.
The way everything was done, was done because of the silence in the law for such a
situation as it was probably not contemplated that complaint might be made against
the Chief Justice one day. But, it was an ultimate occasion for the Supreme Court,
whereby the Court in the larger interest of public good, principle of natural justice,
judicial independence and accountability could have amended the rules to
accommodate the concern so arose and accordingly would have conducted the inquiry.
In the light of the statement made by the then Chief Justice, the biggest
apprehension that could be contemplated was that this occasion might be used to
penetrate the shield that judiciary is protected with and then utilize this incident to
tarnish the image of the judiciary so that the people's faith and trust got shaken. If it
was so, it was indeed a serious issue.
Page: 136
The apprehensions might appear just and reasonable to many people in the light of
revelation made by one advocate, Mr. Utsav Bains. In a Facebook post, the Supreme
Court advocate, Utsav Bains said:“I was offered bribe to help frame CJI in the sexual
harassment case by lawyering and organizing a press conference against the CJI for
the ex-SC staffer who has accused the CJI of sexual harassment just a few days back
and also specifically asked to organize a press conference only at the Press Club of
India.”81
But, to me it does not appear to be enough a reason for not utilizing this occasion
by the Supreme Court to come forward and bring the highest office to the stand the
scrutiny of a proper committee and thereby set an example for all institutions to
follow. Rather it was an occasion for the apex Court to exercise its power to prove the
point judiciary had been raising in the recent past - the issue of external intervention.
As far as the question of misuse is concerned, it could have been very easily addressed
by bringing provision for strict legal action against the complainant if allegation is
found to be false and frivolous, containing malafide and malicious intentions.
Any question with respect to the dignity and integrity of the highest office of the
judicial set-up, if raised in the social sphere negatively effecting the trust and faith of
the citizen in the justice dispensing system, is not good as it defeats the very purpose
of justice. Former chief justice of Delhi High Court A.P. Shah said that the entire
process was shrouded in secrecy. He further said while delivering the 27th Rosalind
Wilson Memorial Lecture, “We need a robust mechanism so that future incidents are
tackled differently and in a better way”82 .
The complainant also violated the law by making the complainant public and
thereby, even before bringing the allegation to legal scrutiny, hampered the reputation
of the then Chief Justice as people started discussing about with doubt. On a personal
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
as well as on official front, it was a huge loss. Even after finding the complaint
baseless, devoid of any substance by three-Judge panel, the loss of reputation and
dignity of the then
Page: 137
Chief Justice was not addressed at all. This question is worthy enough to be enquired
properly. It will be quite dangerous, if such iniquitous allegation is being raised
against none other than the Hon'ble Chief Justice and if no substance is found in the
complaint after investigation, to close the matter without resorting to appropriate legal
recourse available in law against the frivolous complainant. This approach of the Court
may be misused in future. This approach will never restore the integrity absolutely,
rather will always leave at least the slightest doubt about the integrity of the
constitutional office. There are many such questions which remained unanswered.
At the same time, the complainant is also a bonafide citizen of the country and
more importantly a woman. She also have every right to protect her dignity and
reputation, rather it's our collective responsibility as a society and also of the Hon'ble
Supreme Court as the protector of such right. The constitution has given every one the
equal right as an individual. Any question pertaining to the dignity of a women in
Indian context as well as in legal context of POSH Act needs to be addressed in quite a
sensible manner sufficient enough to satisfy everyone concerned and capable enough
to foster confidence in the future generations to come forward with their grievances
without any hesitation. It is perturbing to know that the complainant withdrew herself
from the hearing citing the atmosphere of the enquiry as frightening83 . The
complainant, in a press release on May 6, 2019 said that her “worst fears have come
true” and that “all hope of justice and redress from the committee have been
shattered”. She further said, “I am highly disappointed and dejected to learn that the
in-house committee ‘has found no substance’ in my complaint and feel that gross
injustice has been done to me as a woman citizen of India”84 . She had no legal
recourse available to get this corrected if she felt so. In such circumstances, to decide
whether injustice has seriously been caused become impossible. She had every right
to get satisfied that justice has been done to her. If a complainant, litigant is not
getting satisfied with the conduction of his case, it is a failure on the part of the justice
dispensing system.
However, the recent order of reinstatement85 of the complainant in the service by
the Supreme Court after giving clean chit to the accused is
Page: 138
another concern confusing enough for a common man to understand the whole issue
altogether.
8. CONCLUSION
There are several concerns that remained unanswered. The public at large have
nothing substantial to reach to any conclusion. It will always be remembered as a
missed occasion for judiciary to stand tall and justify the acceptance of judicial
independence as a basic feature by making the highest office bearer of the judiciary
available for the toughest legal scrutiny and thereby establishing the accountability at
the top by ensuring the visible and apparent application of principle of natural justice.
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-
In fact, for the sake of judicial integrity and accountability, a magnanimity in
approach of handling of the allegation was expected. As rightly said, “Justice should
not only be done it must also be seen to be done”.
———
* Assistant Professor of Law, Gujarat National Law University, Gandhinagar; E.mail : [email protected]
1 Jeffrey Gettleman, “India's Chief Justice is Accused of Sexual Harassment”, The New York Times, April 20, 2019
<https://www.nytimes.com/2019/04/20/world/asia/india-chief-justice-sexual-harassment.html>; India's top
Judge Ranjan Gogoi accused of sexual harassment, April 20, 2019, Aljazeera News,
<https://www.aljazeera.com/new/2019/04/india-top-judge-ranjan-gogoi-accused-sexual-
harassment90420082847291.html>;India Chief Justice Gogoi Accused of Sexual Harassment, April 20, 2019, BBC
News <https://www.bbc.com/ news/world-asia-india-47996468> etc.; Shishir Tripathi, “CJI Sexual Harassment
Allegations : While Safeguarding Judicial Independence, Supreme Court must also Defend Principles of Natural
Justice”, First Post, April 23, 2019, <https://www.firstpost.com/india/cji-sexual-harassment-allegations-while-
safeguarding-judicial-independence-supreme-court-must-also-defend-principles-of-natural-justice-
6500661.html>; Krishnadas Rajagopal, “Sexual Harassment Allegations : CJI Violated Procedure by Hearing Own
Case, Say Supreme Court lawyers”, The Hindu, April 22, 2019, <https://www.thehindu.com/news/national/sexual
-harassment-allegations-cji-violated-procedure-by-hearing-own-case-say-supreme-court-
lawyers/article26910964.ece>; M. Sridhar Acharyulu, “Why SC's Reasoning for not Disclosing Report of Sexual
Harassment Inquiry against CJI doesn't Fly”, Scroll.in, May 7, 2019, <https://www.scroll.in/article/922633/why-
scs-reasoning-for-not-disclosing-report-of-sexual-harassment-inquiry-against-cji-doesnt-fly>; Apurva
Vishwanath, On Harassment Charge, CJI Gogoi did What he Accused CJI Misra of - Betray Natural Justice, The
Print, April 23, 2019, <https://www.theprint.in/opinion/on-harassment-charge-cji-gogoi-did-what-he-accused-cji
-misra-of-betray-natural-justic e/22 5134/>; Arundhati Roy, Medha Patkar, “Others Seek Independent Inquiry
into Sexual Harassment Allegations against CJI Gogoi” Huffpost.in, April 22, 2019,
<https://www.huffingtonpost.in/entry/arundhati-roy-medha-patkar-others-seek-independent-inquiry-into-sexual
-harassment-allegations-against-cji_in_5cbdd2ede4b06605e3f163f7?ncid=other_huffpostre
pqylmel2bk8&utm_campaign=related_articles>; etc.
2
Thomas E. Plank, “The Essential Elements of Judicial Independence and the Experience of Pre-Soviet Russia”, 5
Wm. & Mary Bill Rts. J. 1 (1996), available at <https://www.core.ac.uk/download/pdf/73966657.pdf>.
3 Chandrashekhar Dharmadhikari, Contemplating Gandhi - Essays on Mahatma's Life and Thought, Institute of
Gandhian Studies, Wardha, 2014 pp. 93-104, available at <https://www.mkgandhi.org/ebks/contemplating-
gandhi.pdf>.
4
M. P. Singh, “Securing the Independence of the Judiciary-The Indian Experience”, Indiana International &
Comparative Law Review, IUPUI, Vol. 10 p. 245 available at
<https://www.mckinneylaw.iu.edu/iiclr/pdf/vol10p245.pdf>.
5 Ibid.
6A.G. Noorani, The Indian Judiciary Under the Constitution, Law and Politics in Africa, Asia and Latin America,
Vol. 9, No. 3 (1976), pp. 335-341, available at <https://www.jstor.org/stable/43108524>; see also, Constituents
Assembly of India Debate (Proceedings) - Vol. VIII; para 8.90.157, available at
<https://www.cadindia.clpr.org.in/constitution_assembly_debates/volume/8/1949-05-24>.
7 Constituents Assembly of India Debate (Proceedings) - Vol. XI; para 11.166.37, available at
<https://www.cadindia.clpr.org.in/constitution_assembly_debates/volume/11/1949-11-26>.
8
Amit A. Pai, “Committing to an Independent Judiciary”, 24 March, 2018, Live Law.in, available at
<https://www.livelaw.in/committing-independent-judiciary/>; see also, 14th Law Commission of India Report,
Vol. I, p. 41.
9Irving R. Kaufman, “Maintaining Judicial Independence : A Mandate to Judge”, American Bar Association Journal,
Vol. 66, No. 4 (April, 1980), pp. 470-472, available at <https://www.jstor.org/stable/20746394>.
10Motilal Chimanlal Setalvad - An eminent Indian jurist, the first Attorney General for India, Chairman of the First
Law Commission of India, the first Chairman of the Bar Council of India, and an awardee of the Padma Vibhushan.
11 Motilal Chimanlal Setalvad, The Common Law in India; Hamlyn Lectures 12th series; Stevens & Sons Ltd.,
London; 1960; p. 200; see also, A.G. Noorani, The Indian Judiciary Under the Constitution, Law and Politics in
Africa, Asia and Latin America, Vol. 9, No. 3 (1976), pp. 335-341, available at
<https://www.jstor.org/stable/43108524>.
12
Arun Prokas Chatterjee, Quoted in Independence of the Judiciary, Social Scientist, Vol. 2, No. 4 (November,
1973), pp. 65-69, available at <https://www.jstor.org/stable/3516363>.
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13Prof. K.T. Shah was a prominent economist, advocate, socialist and a representative from Bihar in the
Constituent Assembly and also a member of advisory committee and sub-committee on fundamental rights.
14B. Shekar Hegde, Independence of the Judiciary and the Supreme Court, Journal of the Indian Law Institute,
Vol. 9, No. 4 (October-December 1967), pp. 638-649, available at <https://www.jstor.org/stable/43949957>.
15Vishnu Parshad, “Independence of Judiciary in India”, The Indian Journal of Political Science, Vol. 25, No. 3/4,
December, 1994, pp. 307-312, available at <https://www.jstor.org/stable/41854044>.
16 Arts. 124-147 of the Constitution of India.
17
Arts. 214-231 of the Constitution of India.
18 Arts. 233-237 of the Constitution of India.
19 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 : AIR 1973 SC 1461.
20
Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441; see also, State of Bihar v. Bal
Mukund Sah, (2000) 4 SCC 640; Kumar Padma Prasad v. Union of India, (1992) 2 SCC 428; All India Judges’
Assn. (3) v. Union of India, (2002) 4 SCC 247.
21Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1; see also, Kesavananda Bharati v. State of Kerala, (1973)
4 SCC 225 : AIR 1973 SC 1461; I.R. Coelho v. State of T.N., (2007) 2 SCC 1; State of Bihar v. Bal Mukund Sah,
(2000) 4 SCC 640; Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549; Chandra Mohan v. State of U.P., AIR
1966 SC 1987.
22Setu Gupta, “Vicissitudes and Limitations of the Doctrine of Basic Structure”, ILI Law Review, Winter Issue
2016, available at <http://www.ili.ac.in/pdf/p8_setu.pdf>.
23Zum Seitenanfang, Selected Bibliography, South Asian Legal Studies, University of Heidelberg, available at
<https://www.sai.uni-heidelberg.de/abt/IND/forschung/forschungsbereich/legalstudies.php#up>.
24
Supra note.
25 I.R. Coelho v. State of T.N., (2007) 2 SCC 1.
26 Art. 31-B of the Constitution, inserted by the Constitution (First Amendment) Act, 1951, provides that
legislations inserted into the Ninth Schedule cannot be challenged on the ground that they violate the Pt. III
(the fundamental rights chapter) of the Constitution. It reads,
“Without prejudice to the generality of the provisions contained in Art. 31-A, none of the Acts and
Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or
ever to have become void, on the ground that such Act, Regulations or provision is inconsistent with, or
takes away or abridges any of the rights conferred by any provisions of this Part, and notwithstanding any
judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations
shall, subject to the power of any competent Legislature to repeal or amend it, continue in force”.
The constitutional validity of the amendment was upheld in Sankari Prasad Singh Deo v. Union of India,
AIR 1951 SC 458 and in Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845. However, the same was
reexamined and overruled by the Supreme Court in Golak Nath v. State of Punjab, AIR 1967 SC 1643. In
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 : AIR 1973 SC 1461, Supreme Court reshaped its
position and made all amendment post the judgment to the subject of basic structure doctrine. Finally,
though I.R. Coelho v. State of T.N., (1999) 7 SCC 580, even laws placed under Ninth Schedule has also been
made subject to basic structure doctrine to certain extent.
27Madhav Khosla, “The Ninth Schedule Decision : Time to Define the Constitution's Basic Structure”, Economic
and Political Weekly, Vol. 42, No. 31 (August 4-10, 2007), pp. 3203-3204, available at
28 1975 Supp SCC 1 : AIR 1975 SC 2299.
29
(1980) 2 SCC 591 : AIR 1980 SC 1789.
30
(1981) 2 SCC 362 : AIR 1981 SC 271.
31 Virendra Kumar, “Basic Structure of the Indian Constitution : Doctrine of Constitutionally Controlled
Governance”, Journal of the Indian Law Institute, Vol. 49, No. 3 (July-September 2007), pp. 365-398, available
at <https://www.jstor.org/stable/43952120>.
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32 S. R. Bommai v. Union of India, (1994) 3 SCC 1.
33 Supra note 26 Khosla.
34 (2016) 5 SCC 1.
35 Supra note 21 Setu Gupta.
36Christopher J, Quoted in Basic Structure Doctrines and the Problem of Democratic Subversion : Notes from
India,. Beshara, Law and Politics in Africa, Asia and Latin America, Vol. 48, No. 2 (2015), pp. 99-123; See also,
Sudhir Krishnaswamy, Democracy and Constitutionalism in India : A Study of the Basic Structure Doctrine, New
Delhi 2009, p. 132. available at <https://www.jstor.org/stable/26160109>.
37 Amartya K. Sen, “The Idea of Justice, Harvard University Press Cambridge, Massachusetts”, 2009. See also,
“James Edelman, Why Do We Have Rules of Procedural Fairness?” Supreme Court of Victoria/University of
Melbourne colloquium, 4 September, 2015. <https://www.fedcourt.gov.au/digital-law-library/judges-
speeches/speeches-former-judges/justice-edelman/edelman-j-20150904>
“Turning to the rules of procedural fairness, however, as Sen observes, there are philosophies other than
natural justice that suggest different underlying principles:
(1) One rationale is perhaps the most commonly advanced. It is essentially a utilitarian rationale for
procedural fairness. The rationale is that better procedure will be more likely to lead to a better result.
(2) A second rationale is that we have principles of procedural fairness because of the need for public
acceptance of decision making. Here, the argument is that procedural fairness improves the
community's acceptance of judicial decision making because they reflect societal values.”
38 Arts. 32 and 136 of the Constitution of India.
39
Arts. 226 and 227 of the Constitution of India.
40
Hari Sharan Saxena, “Tribunals and Natural Justice Principles”, Journal of the Indian Law Institute, Vol. 38, No.
3 (July-September 1996), pp. 348-361, available at <https://www.jstor.org/stable/43952389>.
41Pramila Agrawala, Author of Constitutional Law as Quoted in, Indian Judiciary and Natural Justice, The Indian
Journal of Political Science, Vol. 25, No. 3/4, (July-September-December, 1964), pp. 282-291, available at
42 O. Hood Phillips, Constitutional Law and Administrative law, Sweet & Maxwell Ltd. 7th edn., 1987, pp. 670-71.
43
Lawrence G. Baxter, “Fairness and Natural Justice in English and South African Law”, 96 South African Law
Journal 607-639- (1979) available at <https://www.scholarship.law.duke.edu/faculty_scholarship/2565/>.
44 Meneka Gandhi v. Union of India, (1978) 1 SCC 248 : AIR 1978 SC 597.
45 Justice T. S. Sivagnanam, Lecture on Principles of Natural Justice, Tamil Nadu State Judicial Academy,
Induction Programme 2009 available at <http://www.tnsja.tn.gov.in/article/Pri%20of%20Natural%20Jus%20by%
20TSSJ.pdf>.
46
Union of India v. Tulsiram Patel, (1985) 3 SCC 398 : AIR 1985 SC 1416.
47The United Nations Basic Principles on the Independence of the Judiciary were adopted by the Seventh United
Nations Congress on the Prevention of Crime and the Treatment of Offenders in September 1985 in Milan, Italy,
and endorsed by the General Assembly in its Resolution 40/32 of 29 November, 1985. See also, UNODC (United
Nations Office on Drugs and Crime) Commentary on the Bangalore Principle of Judicial Conduct held in Vienna on
1-2 March, 2007.
48A.V. Dicey, Introduction to the Study of the Law of the Constitution, Liberty/Classic Ed. (Reprint of 8th edn.,
Macmillan, London 1915). Dicey had visualised three different concepts within the doctrine of “Rule of Law”.
These concepts together gives the true meaning of the propounded doctrine.
“When we say that the supremacy or the rule of law is a characteristic of the English constitution, we
generally include under one expression at least three distinct though kindred conceptions.
We mean, in the first place, that no man is punishable or can be arbitrary lawfully made to suffer in body
or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary
Courts of the land. In this sense the rule of law is contrasted with every system of government based on the
exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint.
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We mean in the second place, when we speak of the ‘rule of law’ as a characteristic of our country, not
only that with us no man is above the law, but (what is a different thing) that here every man, whatever be
his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the
ordinary tribunals.
There remains yet a third and a different sense in which the ‘rule of law’ or the predominance of the legal
spirit may be described as a special attribute of English institutions. We may say that the constitution is
pervaded by the rule of law on the ground that the general principles of the constitution (as for example the
right to personal liberty, or the right of public meeting) are with us the result of judicial decisions determining
the rights of private persons in particular cases brought before the Courts”.
49
K. Veeraswami v. Union of India, (1991) 3 SCC 655.
50 C. Ravichandran Iyer v. A.M. Bhattacharjee, (1995) 5 SCC 457.
V.R. Krishna Iyer, “Judicial Accountability to the Community-A Democratic Necessity”, Economic and Political
51
Weekly, Vol. 26, No. 30 (July 27, 1991), pp. 1808-1814, available at <https://www.jstor.org/stable/41498506>.
52Roger J. Traynor, “Who Can Best Judge the Judges”, Virginia Law Review, Vol. 53, No. 6 (October, 1967), pp.
1266-1282, available at <https://www.jstor.org/stable/1071864>.
53
S. P. Sathe, Review : The Crisis of the Indian Legal System by Upendra Baxi, Economic and Political Weekly,
Vol. 18, No. 32 (August 6, 1983), pp. 1388-1389+1392- 1393, available at
54
Prof. Upendra Baxi, “Judicial Discourse : Dialectics of the Face and the Mask”, Journal of the Indian Law
Institute, Vol. 35 (Pt. I) January-June 1993 Nos. 1 and 2, available at <http://14.139.60.114 :
8080/jspui/bitstream/123456789/17468/1/003_Judicial%20Discourse_Dialectics%20of%20the%20Face%20and%
20the%20Mask%20%281-12%29.pdf>.
55 V. R. Krishna Iyer, “Who will Judge the Judges?” The Hindu, September, 1 2010 available at
<https://www.thehindu.com/opinion/op-ed/Who-will-judge-the-judges/article15898016.ece>.
56Ajit Prakash Shah, “Judicial Standards and Accountability Bill”, The Hindu, March, 29 2011; available at
<https://www.thehindu.com/opinion/lead/Judicial-Standards-amp-Accountability-Bill/article14966449.ece>.
57
Art. 124(4) of the Constitution of India - “A Judge of the Supreme Court shall not be removed from his office
except by an order of the President passed after an address by each House of Parliament supported by a
majority of the total membership of that House and by a majority of not less than two-thirds of the members of
that House present and voting has been presented to the President in the same session for such removal on the
ground of proved misbehavior or incapacity”.
58Introduced in the Lok Sabha on December 1, 2010, passed by Lok Sabha on March 29, 2012, but could not be
taken up for discussion in the Rajya Sabha due to adjournment of the parliament. Finally, due to dissolution of
15th Lok Sabha, the Bill could not be considered and lapsed.
59 Prof. Madabhushi Sridhar Acharyulu, “Lacunae in Law on Who Will Judge the Judges”, April 27, 2019, Live Law
in, available at <https://www.livelaw.in/columns/lacunae-in-law-on-who-will-judge-the-judges-144585>.
60
Vishaka v. State of Rajasthan, (1997) 6 SCC 241 : AIR 1997 SC 3011.
61 S. 2(n) of the POSH Act, 2013.
62 S. 4 of the POSH Act, 2013.
63
Cl. 2(b) of the Regulation, 2013 - “Appropriate Authority” means in relation to the Supreme Court of India, the
sitting Chief Justice of India.
64 Cl. 4(2) of the Regulation, 2013.
66
Cl. 11 of the Regulation, 2013.
67 Cl. 12 of the Regulation, 2013.
69
Cl. VI of the Guidelines, 2015.
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70 The copy of the cover letter of the voluminous affidavit is available at the web-page of the scroll.in;
<https://scroll.in/article/920678/chief-justice-of-india-sexually-harassed-me-says-former-sc-staffer-in-affidavit-
to-22-judges>.
71“CJI-led Bench Holds Hearing on Sexual Harassment Charges Against CJI Ranjan Gogoi”, India Today Web Desk,
April 20, 2019; <https://www.indiatoday.in/india/story/cji-led-supreme-court-bench-hold-unusual-hearing-on-
matter-of-great-public-importance-1506092-2019-04-20>.
72
Ibid.
73 Ibid.
74 “Sexual Harassment Allegations Against CJI Gogoi is Attack on Judiciary : Mukul Rohatgi”, India Today Web
Desk, May 3, 2019; <https://www.indiatoday.in/india/story/sexual-harassment-allegations-against-cji-gogoi-is-
attack-on-judiciary-mukul-rohatgi-1516581-2019-05-03>.
75
Ibid.
76“2 Lawyers’ Bodies of SC Disapprove of CJI Gogoi's Handling of Allegations Against Him”, India Today Web Desk,
April 22, 2019; <https://www.indiatoday.in/india/story/cji-ranjan-gogoi-sexual-harassment-allegations-sc-lawyer
-bodies-1507698-019-04-22>.
77Ranjan Gogoi, “Supreme Court in Supreme Row : The She-Said He-Said of it all”, India Today Web Desk, April
24, 2019; <https://www.indiatoday.in/india/story/ranjan-gogoi-supreme-court-sexual-harassment-corporate-
conspiracy-explainer-1509397-2019-04-24>.
78
“CJI Ranjan Gogoi gets Clean Chit in Sexual Harassment Case, SC Panel Dismisses Charge”, India Today Web
Desk, May 6, 2019; <https://www.indiatoday.in/india/story/cji-ranjan-gogoi-gets-clean-chit-in-sexual-
harassment-case-sc-panel-dismisses-charge-1518425-2019-05-06>.
79 Ibid.
80 Indira Jaising v. Supreme Court of India, (2003) 5 SCC 494 : In this case the Supreme Court bench had
observed that an in-house inquiry conducted to probe complaints filed against the Chief Justice or Judges of the
High Court “is for the purpose of his (Chief Justice of India) own information and satisfaction” and a “report made
on such inquiry if given publicity will only lead to more harm than good to the institution as Judges would prefer
to face inquiry leading to impeachment”.
81
Was offered Rs 1.5 Crore to Help Frame CJI Gogoi in Harassment Case, Claims SC Lawyer, India Today Web
Desk, April 21, 2019; <https://www.indiatoday.in/india/story/was-offered-rs-1-5-crore-help-frame-cji-gogoi-
harassment-case-claims-sc-lawyer-1507038-2019-04-21>.
82“Process of In-House Committee Questionable in Dealing with Complaint Against CJI : Former Justice A.P.
Shah”, India Today Web Desk, July 28, 2019; <https://www.indiatoday.in/india/story/process-of-in-house-
committee-questionable-in-dealing-with-complaint-against-cji-former-justice-ap-shah-1574573-2019-07-28>.
83 Supra note 78, CJI.
84 “Scared, Dejected”, Says Ex-Staffer after Panel Finds “No Substance’”in Complaint Against CJI, The Wire, May
6, 2019; <https://www.thewire.in/law/in-house-committee-cji-gogoi-no-substance>.
85Ananthakrishnan G., “SC Reinstates Woman Employee who Levelled Charges at Ex-CJI”, The Indian Express,
Saturday, February 2, 2020; <https://www.indianexpress.com/article/india/supreme-court-ranjan-gogoi-cji-
sexual-misconduct-6228834/>.
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(2020) 10 GJLDP (October) 114

In the Matter of Great Public Importance Touching upon the Independence of

IN THE MATTER OF GREAT PUBLIC IMPORTANCE TOUCHING UPON THE INDEPENDENCE OF

re of the Constitution, judicial accountability and sexual harassment at workplace. It is

Independence of judiciary is considered even by the early philosopher as a

In S. R. Bommai case32 , the Supreme Court held secularism to be a part of the

ultimately strengthen the confidence of citizens in the constitutional democracy.37

To practice this balance in day-to-day working within the

5. SEXUAL HARASSMENT ACT

as the Appropriate authority63 competent to constitute by order the Gender

In exercise of the powers68 conferred by the Gender Sensitisation & Sexual

It was indeed an unprecedented circumstances for the Chief Justice as well. In

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