Day 3 Arguments (Afternoon)

Sexual Harassment & the CJI

April 24th 2019

The three-judge Special Bench of Justices Arun Misra, Rohinton Nariman, and Deepak Gupta reassembled at 3 P.M. after having met with the Directors of the CBI & the IB as well as the Commissioner of Police for Delhi in chambers.


Before the hearing commenced, Mr. Utsav Bains handed over another sealed cover to the Court. Upon being asked whether he had filed the second affidavit he had sought permission for in the morning, he answered in the negative. The Bench directed him to file the affidavit at 10:30 AM on Thursday (tomorrow). Bains further informed the Court that as per his knowledge, two of the persons he had named as conspirators had held a meeting and he would supply the court with details of the same.


A significant aspect that was discussed before the Bench was the issue of privilege under Section 126 of the Evidence Act. Mr. Utsav Bains claimed the said privilege to withhold certain information from the court. However certain objections were raised by the Attorney General, Mr. K. K. Venugopal, who submitted before the court that it was concerning how an individual could file an affidavit raising such a serious issue and make grave allegations, but not substantiate the same with evidence by claiming the remaining information as privilege. Justice Arun Misra took note of the submissions and observed that the Bench would seek the assistance of the Attorney General and other officials of the Court to decide the question whether Mr. Bains was entitled to the privilege claimed by him.


During the course of hearing, the Bench also granted Ms. Indira Jaising permission to make her submissions. Ms. Jaising began by stating that she was appearing in her individual capacity and was not representing anyone. She further submitted before the court that the women lawyers of the Supreme Court were also concerned about the independence of the judiciary and sought for an independent inquiry into the affidavit filed by the former female employee alleging sexual harassment by the CJl. Justice Nariman noted that tire present bench had been constituted to look into a different purpose. Ms. Jaising continued arguing that the investigation into the claims made by Utsav Bains must not prejudice are inquiry into the allegations of sexual harassment and two separate inquiries must be conducted simultaneously by the court. However, Justice Nariman reiterated that the allegations themselves as well as the proceedings that were conducted on Saturday, April 20th were not the issue before the present Bench.


Returning to the affidavit filed by Utsav Bains, Justice Misra noted that given the serious issue involved, there was a need for the court to go to the very root of the matter. Mr. Bains in his affidavit had recorded the involvement of fixers and disgruntled former employees. When a lawyer was making such allegations, it was pertinent for the court to find out if there was any truth in such statements. Else, the judiciary would no longer inspire the confidence of the public. The veracity of the affidavit must be established for false documents of such nature could not be tolerated. Noting that the present proceedings will have no bearing on the internal inquiry into me allegations of sexual harassment against the Chief Justice, the court directed Mr. Bains to file his second affidavit by 10:30 AM tomorrow. The Bench will take up the case for hearing tomorrow on April 25th at 10:30 AM. The Attorney General has been requested to be present in court and the issue of privilege will also be decided in tomorrow’s hearing.


Note: During the course of the hearing, the Court also witnessed a heated exchange between JustIce Nariman, Mr. Utsav Bains, and Ms. Indira Jaising with Mr. Bains stating that he was being personally attacked by the Attorney General. Justice Nariman cautioned that Mr. Venugopal was the, last elected member of the Bar and should he have any doubt, Mr. Bains would be thrown out. Me Jaising also demanded that Mr. Bains file an affidavit stating his credentials after she raised certain other issues which too Mr. Bains felt were a personal attack.