On Tuesday, in accordance with long-standing convention, the President of India signed the warrant appointing Justice S.A. Bobde as the next Chief Justice of India. Since the news of the appointment broke, there have been a few articles in newspapers about Justice Bobde’s notable judgments and his adjudicatory style, as well as an interview with NDTV. However, apart from a throwaway line here or there, these accounts have ignored a rather large elephant in the room: the manner in which the Supreme Court handled allegations of sexual harassment against the outgoing Chief Justice in April/May 2019.

It is of particular importance that this issue be discussed now, at the time of a changing of the guard. This is because the events of April/May 2019 were not simply about one individual, or one accusation. They represented – as I had attempted to show at the time – an institutional failure on the part of the Supreme Court. To recapitulate, as the famous MacPherson Report defined the concept of institutional racism:

The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people.

An institutional failure, therefore, does not require malicious intent from any one person or set of person. It manifests itself through “prejudice”, “ignorance”, and “thoughtlessness”, whose effect is to place substantive justice out of reach of the vulnerable and the marginalised. In the sexual harassment case, the Supreme Court’s institutional failure began with the Chief Justice constituting a bench and then presiding over it to hear the allegations against himself (the final written order, however, does not show his name); it continued when another three-judge bench of the Court questioned the motives of the complainant, and entertained a parallel petition about “bench fixing”; it went on when an “ad-hoc” “In-House Committee” set up to hear the allegations departed from best practices as set out under the POSH Act, to the extent that the complainant herself withdrew from the proceedings – but then went ahead and issued a “clean chit” to the Chief Justice anyway; and it also manifested itself in how none of the other judges of the Court (with the exception of Chandrachud J.) objected to this set of processes.

The institutional failure of the Supreme Court (involving the active participation of no fewer than eight judges at various times), therefore, stemmed from a failure to understand that sexual harassment is a question of power, and that a fair investigation of allegations of sexual harassment – “due process” – must be designed to mitigate those power imbalances, instead of perpetuating them. As the judge heading the In-House Committee, it is a failure for which the incoming Chief Justice bears a degree of responsibility; however, that is not the main point. The main point is that the institutional failure is a continuing one – it cannot simply be buried with the departure of the soon-to-be former Chief Justice, and it cannot be brushed away as an isolated event that has now been resolved. An institutional failure requires institutional solutions.

Now, in the spirit of realism, one could grant that as the soon-to-be former Chief Justice was himself at the centre of the April/May 2019 controversy, it would be too much to expect institutional accountability mechanisms to be put in place while he continued in office. It is for this reason that a change of guard is a particularly important moment, because it presents a clear opportunity for a fresh start. There needs to be an acknowledgment that what happened in April/May 2019 was an injustice, that its underlying cause was institutional, and that its solution must be institutional: i.e., the setting up of a formalised structure for dealing with sexual harassment complaints within the Supreme Court, a structure that takes into account the basic questions of power that come with such cases.

What shape this structure might take is, of course, not for this author to set out. At a minimum, though, it must arise out of a frank dialogue between the major stakeholders (in particular, women lawyers, judges, as well as employees of the Supreme Court), and take into account existing best practices (as reflected, for example, in the POSH Act). And as responses to the Supreme Court’s conduct in the wake of May 2019 showed, there is no shortage of expertise when it comes to crafting norms of due process that ensure substantive justice in sexual harassment cases, in the context of the court structure.

If there were pragmatic reasons why this could not happen so far, as pointed out above, those reasons no longer exist with a changing of the guard. As the administrative head of the Supreme Court, the new Chief Justice is ideally placed to initiate the process of institutional accountability, and to ensure that there is no repetition of the events of April/May 2019. But what would be most unfortunate would be if nothing was to happen, if everything was to continue in the “business as usual” sense, if the events of April/May 2019 continued to be buried under a veil of mutually-accepted and mutually-acceptable silence; because there comes a point when institutional failure turns into institutional complicity. And the continuing absence of structures of institutional accountability within the Supreme Court would surely take us swiftly into that latter domain.