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CJI sexual harassment case: Stand of Surbhi Karwa

By refusing to receive her gold medal from Ranjan Gogoi, the Chief Justice of India, Surbhi Karwa of the National Law University, Delhi, took a moral high ground against the 'botched investigations of sexual harassment made against the CJI. In April, a former Supreme Court employee accused Gogoi of making sexual advances at her in October 2018. Gogoi, becoming a judge in his own case, appointed an internal committee that found him innocent. The report wasn't made public.

What is the defiant statement by the law topper?

To receive her gold medal by India’s top judge would have been a dream when Surbhi Karwa started pursuing her studies in law.
But when her name was called out on August 18, Saturday, to receive the gold medal for standing first in her LL.M class at the National Law University, Delhi, Surbhi Karwa was “at work”“Unfortunately, she is not here. We will award her the medal in absentia,” Prof (Dr) G S Bajpai, the university registrar, said during the convocation, as reported by Indian Express.

Everything I learnt in the classroom put me in a moral quandary over the last few weeks on whether I should receive the award from CJI Gogoi,” Karwa told. “The institution he heads failed when sexual harassment allegations were made against him. I am seeking answers for myself on the role lawyers must play in guarding Constitutional values, and that is something even the CJI mentioned in his speech.

Karwa said she was not rejecting the medal – just that she didn’t want it to be awarded by the CJI. “Getting the gold medal itself is an honour and I am thankful to my parents and teachers who have helped me along the way,” Karwa said. “Receiving it from one person is not as important as getting it.” Karwa knew she would be awarded the medal. But when she realised that she would most likely receive it from Chief Justice of India Ranjan Gogoi, it prompted her to skip the event.

Ironically, in his speech Saturday, CJI Gogoi reminded graduates that the law degree is a “call of duty” to defend Constitutional values. “Say no and a big no to anything and everything that appear to your mind to be morally and actually regressive. Say yes to everything which you think can be offered to anybody,” Gogoi said.

Karwa said no. A big NO.

Why is the law topper upset with the law keeper?

Chief Justice Ranjan Gogoi was cleared of sexual harassment allegations on May 6. An internal inquiry panel of the Supreme Court, appointed by Gogoi himself, ruled that there was "no substance" to the accusations of sexual harassment, adding that its report would not be made public but clarifying exactly why. Gogoi had previously called the allegations "false" and an attempt to "destabilise the judiciary".
The swift ruling came days after the woman who accused Gogoi withdrew from the inquiry after questioning its fairness. The woman, a former Supreme Court employee, alleged that two instances of misconduct took place in October - the month Gogoi was sworn in as chief justice.

After she filed an affidavit on 19 April detailing the alleged harassment, the Supreme Court set up an "in-house committee" with three judges, including two women, to look into the allegations. Supreme Court lawyer Indira Jaising called the clearing of Gogoi’s name a "scandal" on Twitter and demanded the court release the report. That hasn’t happened so far.

Gogoi's accuser, a married woman, cannot be named under Indian law. She alleged that on 10 and 11 October the chief justice pressed his body against her in his offices, "hugged me around the waist, and touched me all over my body with his arms" until she physically pushed him away. She said Gogoi warned her that her family "would be greatly disturbed" if she told anyone what happened. The woman said her family was victimized after she refused his advances and that she was transferred three times before being fired in December.

The chief justice vigorously denied the allegations. A statement from the secretary general of the Supreme Court on the chief justice's behalf said his accuser had "had no occasion to interact directly with the chief justice". The statement said she was dismissed "as per procedure" after an incident of "inappropriate conduct". "I don't want to stoop so low as to answer these charges," Gogoi later told a special bench of the Supreme Court, claiming that there were "bigger forces behind these allegations hurled at me" which were "trying to destabilise the judiciary".

It wasn’t clear what exactly was Gogoi suggesting by his reference to ‘bigger forces’. In any case, the problem was with the method adopted to find the truth, considering that the Supreme Court itself has been at the forefront of ensuring transparency in the processes of law.

When did the plot become denser?

There is much more to the case than meets the eye.
After the woman’s allegations became public, the Supreme Court highlighted that on March 3, the Tilak Marg police station in New Delhi had registered a first information report (FIR) against the woman based on a certain Naveen Kumar’s complaint.

Kumar alleged that a man identified as Mansa Ram had taken him to meet the junior court assistant in June 2017. She allegedly promised to get him a job at the Supreme Court, quoting a price of Rs 10 lakh. In the complaint, Kumar claimed he gave her an advance of Rs 50,000. However, the woman rejected the charges against her as “false and frivolous”, and claimed that she was being victimised for complaining against Gogoi.

As it turns out, Kumar has been missing from his home in Haryana since AprilThe Indian Express reported on July 24, quoting the police. The non-availability of the cheating case complainant, Naveen Kumar, at his Haryana address was disclosed on July 19 before Chief Metropolitan Magistrate Manish Khurana who had called for the man’s presence in court. Earlier, the Delhi Police Crime Branch had sought cancellation of the bail granted to the woman on March 12 after the man alleged he was being threatened by the woman and her husband.

When The Indian Express had visited Kumar’s Jhajjar home in April, his mother Meena (50) had said that her son left for Chandigarh at 7 am on April 20, and his phone was switched off thereafter. She said that she had told him “not to file the case” since it was “not wise to fight with powerful people”. According to his family, Kumar used to work as a security guard at H L City Pvt Ltd in Jhajjar, earning Rs 15,000 a month.

The woman’s counsel, V K Ohri, sought that the police plea be dismissed and the case be closed against his client. “The judge said last opportunity is being given to the police to serve the notice to the complainant,” Ohri told. Under the law, if the investigating agency is moving any application or wants to get any court order against any of the parties involved, the fact has to be brought to the knowledge of the complainant and the accused.

The court has now issued another notice to the missing man, asking him to be present at the next court hearing on September 6. The police’s claim is interesting because one of the reporters who was investigating the sexual harassment case against the CJI had met Kumar at his workplace in the third week of April.
The Caravan‘s reporter met Kumar during his investigation. Kumar had claimed that he was introduced to the woman and her husband by one Mansa Ram, now dead, who assured him that the couple could get him a job at the Supreme Court. He alleged that the couple had demanded Rs 10 lakh to get the job done. He also claimed that he had given an advance amount of Rs 50,000 in cash at the very first meeting with them at the court’s premises.

In the brief meeting the reporter had with Kumar, he did not divulge much details about the bribery case, except saying that he wanted to drop the FIR. “Bohot tension ho raha hai (It is too much stress),” he said and complained about frequent police visits to his home and office. He also remained unsure about the date on which he met the woman and her husband. He also could not answer clearly why he was carrying Rs 50,000 in cash when he was meeting the couple for the first time. He also said he did not know how Mansa Ram, the intermediary, knew the woman and her husband.

When asked why he had moved for the cancellation of the woman’s bail if he wanted to drop the FIR, he said he did not want to talk about the matter at all. Throughout the conversation, Kumar’s boss kept intervening to complete and clarify his responses, and even asked the reporter to stay away from this case, apparently because many influential people were involved in it.

After the story on the harassment allegations broke, at least two media houses – The Print and The Indian Express – visited Kumar’s house and met his mother. His mother Meena too told The Print that there were “powerful people” involved in the case, and that Kumar, known as Rinku in his village, was “probably forced to file FIR” against the woman.

“Just like that, vanished”, was the most liked comment on the Indian Express story reporting that Kumar is no longer traceable.

Where does the greatest irony come from?

Justice Swatanter Kumar
In 2014, a law intern moved the Supreme Court, accusing then National Green Tribunal chairman Justice Swatanter Kumar of sexually harassing her. She alleged that the incident happened when Justice Kumar was still a sitting judge of the apex court. The law intern’s petition was heard by a bench comprising of then Chief Justice of India P. Sathasivam, Justice Shiva Kirti Singh and, ironically, Justice Ranjan Gogoi.

Coming at a time when the top court was already embarrassed by a similar allegation leveled against its former judge, Justice A.K. Ganguly, CJI Sathasivam and his judges on the bench rued the absence of a mechanism to deal with cases of sexual harassment against sitting judges.
The bench set up a panel comprising senior advocates Fali Nariman and P.P. Rao to recommend regulations for addressing such incidents. Nariman and Rao had later recommended that the CJI must appoint a panel of sitting apex court judges to probe allegations of sexual misconduct made against any brother judge. They held that “no matter how high the judges are, they are definitely not to be treated as immune from charges of sexual harassment of women at workplace”.

Fali Nariman and P.P. Rao
Nariman and Rao had not factored in the extreme scenario where the CJI himself is the accused. Ranjan Gogoi, now seated on the highest chair of the apex judiciary, was in April faced with a similar situation. It required him to apply the same yardstick to himself which, in 2014, he had applied to the case against Justice Kumar. Therein lies the crux of the current controversy — how fair has the redressal been in dealing with sexual harassment charges when it comes to the topmost judge of the country?

Activists fighting against sexual harassment at workplace say everything that followed was an assault on the due process of law, of which the Chief Justice of India is supposed to be a custodian. They say, in a predictable pattern of anyone accused of the crime, the CJI too discredited his accuser, asserted that there was a “bigger plot to deactivate the office of the CJI” and even equated the serious charge against him with an “attack on the independence of the judiciary”. All these without even a preliminary probe to ascertain the truth of the matter.

There are also larger questions on whether the Supreme Court, which had in 1997 framed the famous Vishakha Guidelines to deal with complaints of sexual harassment at the workplace, sees the judiciary as above scrutiny.
The apex court is yet to formalise guidelines of dealing with cases of sexual harassment against sitting and former judges, and the recommendations made by Nariman and Rao back in 2014 have been gathering dust.

A clear example of the judiciary’s apathy towards complaints of sexual harassment against its members is the Justice A.K. Ganguly case: though a panel of sitting apex court judges had found him guilty of the charge, no punishment was ordered. The apex court currently has in place an Internal Complaints Committee, chaired by Justice Indu Malhotra, to deal with cases of sexual harassment slapped against employees of the court and law officers, but it has no jurisdiction over sitting or retired judges.
Whether the CJI is at fault or not can only be established after a proper investigation. Workplace harassment is an issue that the judiciary can only ill-afford to overlook.For no amount of progressive judgments can compensate for the lack of reforms within. Gogoi retires in November, but the case against him must not retire with the end of his tenure.

Whose version is more believable?

On May 7, a day after the internal committee found Gogoi innocent of all accusations, reporters from The CaravanThe Wire and met the complainant in the case.

In this joint interaction that lasted nearly an hour and a half, she gave details of how the committee had heard her case. She spoke of intrusive police searches as she went into the committee hearings. She spoke of how strangers visited the homes of her relatives in Uttar Pradesh and Rajasthan, armed with threats.She also wondered if her identity as a Scheduled Caste woman had been a reason behind her humiliation.

The woman at the centre of it all told her story, Scroll reporter later, in a voice which seemed to hold more sadness than anger. Her husband, who had accompanied her, watched anxiously in the background. At times, the voice trailed off as she broke down in tears. She was fighting, she said, because she had lost everything. There was nothing more to lose.

Here are a few edited excerpts from the interaction:
  • I know I am not part of any kind of conspiracy. Whatever I said in my affidavit, I provided evidence for it. He has criticised my character saying I am from a criminal background. A case that was resolved in 2016, they are trying to make that the basis. Once it was clear that there was nothing in those cases, other insinuations came up, as if I might have some kind of connection with Anil Ambani. I don’t know where these things are coming from. I had no idea when I filed the affidavit that these sorts of stories would come up.

  • Anybody who reads my affidavit will come to know exactly what has happened to me and my family. I was thinking I would get some justice. But today you can see what was the result. This committee is saying there is no substance in my affidavit, even though I have provided sufficient evidence.

  • Since the day I received the notice, I had been requesting them [the three judges on the committee] to allow me to bring along a support person to the proceedings; to allow video recording; and conduct the proceedings under the guidelines for sexual harassment cases or the Vishaka guidelines. They did not even follow that. They only considered my one request related to Justice Ramana. Because I know he is very familiar with Justice Gogoi. He used to visit Justice Gogoi frequently. So, they considered that. [After the complainant wrote to the committee regarding Justice Ramana, he recused himself from the proceedings. Justice Indu Malhotra was appointed in his place.]

  • When I arrived for the proceedings, three or four police women searched and treated me as if I was a terrorist. They examined everything, made me open my hair, clothes, checked them in a rough manner. I was literally crying there, and shouting.

  • They told me, “We can assure you no harm will come to you in your future.” Justice Bobde also said, “You know, you will get your job back.” To which I said, “No Lordship, I don’t want my job back. I just need justice. I’m not doing all this to get my job back. The victimisation after that incident, it should be stopped.”

  • There was one more thing. Once I left the Supreme Court guest house where the proceedings were being conducted, my husband and I were chased by unknown people on a bike. Even on 26th, even on 29th, and 30th April, I did not realise as it was early in the morning. And it was really scary for me. I filed a complaint against those unknown people at the Tughlaq Road police station. For that Justice Bobde said: “You have a large family and everybody is in police in your family. They should know how to protect you.”

  • On the last day, when I wanted to withdraw from all the proceedings….Justice Bobde was quiet for some time. He wrote something on a paper and gave it to Justice Indu ma’am. She read it and Justice Bobde went out. Then Justice Indu ma’am started asking me why I wanted to withdraw. I told Justice Malhotra that this is a case against the CJI. He is the most powerful person. Justice Bobde came back after five minutes. He said he was going to the washroom.

  • He said, “We are giving you five minutes to think about it. Otherwise we will conduct the proceedings ex-parte.” I said OK. Because I knew I would not get justice from the way they were conducting the proceedings, the way they were asking questions. They were stuck on one question: why had I filed the complaint so late. I had given them a satisfactory reply, still they were asking the same question and saying that is not how it’s done, that is not how it’s done.

I was completely disheartened. Shocked. I have lost my job, I have lost everything. My family members have lost their jobs. So I felt it was a great injustice to me and my family. We were all shocked to learn that they just said there is “no substance.”

How admirable is Karwa’s stand?

By not sharing the stage with the man who she thinks doesn’t deserve to hand her the award she had worked for, Surbhi Karwa stands at a much higher stage. On the moral high ground.

Wikipedia defines the moral high ground as ‘the status of being respected for remaining moral, and adhering to and upholding a universally recognized standard of justice or goodness’"Parties seeking the moral high ground simply refuse to act in ways which are not viewed as legitimate and morally defensible," it explains. Karwa didn’t want to act against her conscience because it would have been morally – and constitutionally – indefensible.

In What Price the Moral High Ground?, economist and social critic Robert Frank challenges the notion that doing well is accomplished only at the expense of doing good. Frank explores exciting new work in economics, psychology, and biology to argue that honest individuals often succeed, even in highly competitive environments, because their commitment to principle makes them more attractive as trading partners.
Drawing on research he has conducted and published over the past decade, Frank challenges the familiar homo economicus stereotype (man is a rational animal acting in self-interest) by describing how people often choose modestly paid positions in the public and nonprofit sectors over comparable, higher-paying jobs in the for-profit sector, and how socially responsible firms often prosper despite the higher costs associated with their business practices.

The matter of sexual harassment allegations against Gogoi seems forgotten, if not forgiven, today. The nation has more pressing issues to address, such as the economy and Kashmir. The good work done by a few uncompromising journalists counts for nothing against the supreme dispensers of justice.

That one young woman, a student just starting her career in law, dared to defy the conventional wisdom of ‘being practical’ is worthy of our respect. Indeed, it won’t change a thing. The rest of her university was with the Chief Justice in happy attendance.

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