Guest Post by PRATIKSHA BAXI

The publication of a sworn affidavit by a former Supreme Court staffer testifying to sexual harassment by the Chief Justice of India has been treated as a scandal, whether the complainant was believed or not. And the subsequent events – an extraordinary suo moto hearing, allegations of a conspiracy against the independence of the judiciary, the in-house committee’s decision to exonerate the CJI – have evoked the normative question whether such forms of judicial exceptionalism are the necessary condition for judging in our courts.

Yet asking such questions ran the risk of being labelled as an ‘institution de-stabiliser’. The intent was to invent social consensus by deploying labelling as a technique of censoring and delegitimising feminist critique. Not so long ago women who challenged male authority were described as witches, today they are labelled anti-national, institution destabilisers, presstitutes or simply, left-liberal/JNU type.

However, whether one walks right, left, centre or zigzag, it cannot be denied that jurisprudential questions need answers beyond the specifics of this case. One would have thought that it is also in the interest of all judges to devise a procedure that is constitutionally sound and invested in gender justice, while recognising the specific problems that judges may have because of the nature of their work. And that the Supreme Court would recognise that it is in the interest of every survivor of sexual harassment, irrespective of ideology or status, to be provided normative answers.

It is legitimate to be concerned about when and how justice inhabits our courts, because courts often determine whether our workspaces become safe or unsafe for us. Sexist judges after all run the risk of writing sexist judgments, whether these are men or women judging our policies at our workplaces. There is enough evidence of the everyday form of suffering that we face when judges give ex-parte orders that result in the very denial of fair and just procedure to women complainants in our workplaces.

Unlike students, teachers and workers, until 2019, the highest court in the country did not think it needed to put in place a fair and just procedure bringing Judges and the Chief Justice of India (CJI) within the jurisdiction of the law on sexual harassment at the workplace.

Instead the political discourse that unfolded implied that a just and fair procedure would endanger the very independence of the judiciary. Political discourse needed us to believe that the post of the CJI is exceptional as far as allegations of sexual harassment are concerned, although the executive has conveniently abandoned similar logic on the question of judicial appointments where the sanctity of the collegium has repeatedly been questioned. And judges also resorted to publicity to challenge interference with judicial independence.

The Supreme Court’s belief then that “sunlight is the best disinfectant” was set aside now when it came to making a fair and just procedure that redresses sexual harassment allegations against a judge or a CJI by an employee of the court – whether such allegations are now or arise in the future.

In our courts, it is routine that a complainant is not perceived to be a victim but treated as a witness, a bystander and a conspirator simultaneously. And a no spoken firmly in the stand is often written feebly in judgments. As recently as 2019, the Supreme Court has continued to characterise married women as habituated to sex, in rape trials as a ground for disbelieving the victim [1] The habit of finding proof that women lie in specific cases, and extending this to characterise women, as a lying species, is fairly commonplace in legal reasoning. While there is a difference between rape and sexual harassment, legal reasoning has to first be allowed even if to demonstrate its sexist credentials.

In this case, there is no juridical process that allows legal reasoning. There is simply put, an in-house procedure. And it appeared that since the in-house procedure aimed to address the sudden crisis faced by the judiciary, the report was also treated as in-house. After all that which is in-house need not be shared with an outsider, even if she were to think of herself as aggrieved. The question of “due process” directed at conserving the independence of the judiciary is therefore in-house.

Surely the suspension of law, or judicial exceptionalism itself creates rightlessness, injustice and trauma. It hurts bodies and souls. And one would have thought that this is the affliction of law that sunlight must disinfect.  To open the windows to re-distribute light and secrecy means recognising that law is in a state of affliction.

Yet as we see again and again, sunlight – or in this case, publicity is not always a disinfectant. Publicity often re-organises secrets of sexual violence. The use of publicity to put a complaint in the public domain in the absence of fair and just law and procedure met with greater publicity. This publicity re-organised public gaze towards conserving the independent body of the Supreme Court of India via a suo moto special hearing where the CJI’s statement delivered from his courtroom was given widest publicity.

The special hearing became the site of sensational reporting in every major vernacular language. The call for widest publicity framed the narrative of judicial exceptionalism thereafter.

However, widest publicity was not given to the need for the learned judges to decide on the normative question of what is fair and just to any complainant who may complain of gender based discrimination and/or sexual harassment against any judge or the CJI in the present or in the future.

Does this mean that a zone of judicial exceptionalism has been created for all time to come? And would evolving a fair and just procedure undermine the duty on judges to decide, “without fear or favour” and “uphold the constitution as by law established” as laid out in the Third Schedule? Is an allegation of sexual harassment therefore automatically an attack on the independence of the judiciary – wherein the body of any CJI is the same as his office and the body of the entire judiciary?

Judicial exceptionalism is seen as necessary to preserve the independence of the judiciary when the bodies of judges (almost entirely male) are endowed with sacrality and when the court is thought of as a temple of worship (nyaya mandir as western India refers to courts). After all judges even get to decide whether or not gods are celibate and need judicial protection from menstruating bodies.

Not surprisingly, after the Vishakha judgment, courts were not recognised as workplaces and instead seen as temples of worship. The colonial practice of calling Judges, as Lords, was taken quite literally.

It took a valiant struggle for anti-sexual harassment complaints committees to be set up in courts, yet sexual harassment by judges have been almost impossible to contemplate as a possibility – despite germinal cases.

Courts are as much a workplace as universities. It is true that Judges need different protocols from university professors, although both need to submit to protocols that will truth to power. For each workplace has its own power, hierarchy and vulnerability, and ultimately these have to be examined in the broad judicial, as well as judicious, sunlight. What more is necessary to ensure that due process seems to, and actually, deliver justice to women, more than a quarter century after the Mathura Open Letter to the Chief Justice of India addressed by four law academics – Upendra Baxi, Lotika Sarkar, Vasudha Dhagamwar and Raghunath Kelkar?

Courts as workplaces remain foundationally male spaces to which women have merely been added, if not tolerated. The very habitus of courts is foundationally male ranging from architecture, dress, language and conduct.

Why is the jurisprudential or the normative as it finds eloquent articulation in appellate judgments divorced from transforming the sexist work culture of a courtroom? Surely the mural of feminine justice in the lobby outside the judges’ chambers in the Supreme Court is a symbolic reminder that jurisprudence must challenge patriarchal judicial footsteps in the corridors of law? Surely independence of the judiciary means liberation from patriarchal monopoly of law?

As in the press conference, widest publicity needed to be directed to the question: why is it that courts do not adopt gender just policies and work towards transforming its work culture? But then sunlight is not the best disinfectant when male monopoly of law is threatened. It would appear that publicity re-distributes secrecy; and scandal by claiming a space of exceptionalism – rather than direct attention to the jurisprudential question – why is sexual exceptionalism the necessary condition for judicial independence?

[1] Parkash Chand
 v. 
State of Himachal Pradesh MANU/SC/0181/2019


Pratiksha Baxi is Associate Professor at Centre for Studies in Law and Governance, JNU