CJI Gogoi vs ex-SC staffer: Do Powerful Men Subvert “Due Process” in Sexual Harassment Cases?

Social Commentary

CJI Gogoi vs ex-SC staffer: Do Powerful Men Subvert “Due Process” in Sexual Harassment Cases?

Illustration: Akshita Monga

“Ihave lost my job, I have lost everything,” the former Supreme Court staffer who accused Ranjan Gogoi, the Chief Justice of India, of sexual harassment told journalists from Scroll, The Wire, and Caravan in an interview published this morning. She detailed the complete breakdown of her personal and professional life after filing her complaint. Not only did she lose her job, but her husband and brother-in-law – who were serving as head constables in the Delhi Police – lost theirs too, she alleged. She claimed she has been stalked and threatened, as has been her family in Rajasthan and Uttar Pradesh.

However, the SC’s committee on the “in-house procedure” probing the allegations – consisting of justices SA Bobde, Indu Malhotra, and Indira Banerjee – ruled that there was “no substance” to her complaint. An initial reading of the case suggests that the guidelines of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 were not followed.

The story of this one woman up against one of the most influential men in the country raises familiar questions about imbalances of power, and how men who wield influence are often comfortably insulated from the consequences of their misdeeds. The entire affair involving CJI Gogoi brings to mind another Chief Justice, in another country, who also survived a sexual harassment scandal last year. When Brett Kavanaugh was about to be appointed Chief Justice of the Supreme Court of the United States, a woman named Christine Blasey Ford, who went to college with Kavanaugh, came forward with her complaint of nearly being raped by him. Then too, Kavanaugh was cleared via a hearing, even though his own testimony painted the picture of a man who acted “carelessly”, with little regard for the consent of others.

Men exercise power in these cases not by fighting the charges levelled at them, but through counter-charges that invalidate complaints made against them. Only days after the sexual harassment allegation was filed against CJI Gogoi, there was a whole parallel discussion on how he had been framed as a part of a larger conspiracy to “deactivate” the CJI’s office. A theory that, for its foundation, must assume that the complainant was lying, without anyone having even heard her case.

The CJI’s position is a powerful one, but it is pernicious for everyone to conflate the responsibilities of the office and the man – or woman – who executes them. To question his conduct is not to deactivate the role of the Chief Justice of India, for our judiciary and our governing system is far above that. But powerful men think they are irreplaceable, that somehow they can do whatever they want because we need them, their skills, their work so much that we would forgive great errors and misdeeds and transgressions to have them. Interestingly, one of the chief reasons why it was alleged that the sexual harassment complaint was a part of a larger conspiracy is because of how well it was presented, with evidence, witnesses, and a 28-page-long affidavit sent to 22 judges.

Sexual harassment cannot be “proven” by the victim – and if a woman uses an informal method like social media posts, as we saw during the #MeToo movement, she is met with disapproval.

Sexual harassment cannot be “proven” by the victim – and if a woman uses an informal method like social media posts, as we saw during the #MeToo movement, she is met with disapproval. If a survivor, like this former SC staffer, creates a painstaking, factual case out of her trauma and follows “due process”, her complaint is dismissed as having “no substance”. If she is heard at all that is – possibly by a strange ad-hoc committee made up of the accuser’s colleagues that grants her no courtesy of a lawyer or a support person, and proceeds with the judgment even after she refuses to participate in it.

Addressing the Gogoi episode, lawyer Gautam Bhatia writes on his blog, “A blanket denial of allegations, an attack upon the character of the complainant and references to a large conspiracy are all common responses in cases like this; not everyone accused of sexual harassment, however, has the chance to proclaim his innocence in Courtroom No. 1 of the Supreme Court, with the Attorney General and the Solicitor General to call upon. In effect, the complainant was damned by five of the most powerful men in the country, before being heard.”

Sexual harassment creates a power imbalance between the perpetrator and victim always, but when when the accuser is powerless compared to the accused, “neutral” laws that treat them equally perpetuate the injustice. This is the very reason powerful men get away with everything, and to prevent it from happening, progressive anti-sexual harassment laws like the Vishakha Guidelines and 2013 POSH Act make provisions for levelling the battlefield. While speaking to the media, the victim spoke about her reservations over the functioning of the panel, saying it was “an in-house committee of sitting judges junior to the CJI and not an external committee as I had requested…”

The same judiciary that once stood with thousands of women in the founding of these guidelines, never once mentioned that when it would be time to apply them to their own system, they would hesitate to follow due process.

Even if the charge levelled against the CJI is false, it does not help anyone, including the reputation Gogoi so desperately wants to preserve, to derive a conclusion from such unusually hideous violation of due process.

Even though the Justice Bobde panel has evidently decided that the vendetta the accuser has alleged is a figment of her imagination and her case against the CJI false, dozens of women have turned up before the Supreme Court to protest against the judgement and 40 of them have been arrested. There are hundreds of lawyers writing, clamouring, and ripping the case apart. Men in power repeatedly forget that they aren’t the only experts. They act like nothing can touch them, because for decades, nothing has. But, something is in the air – it tells us that the time for impunity, is up.