AS was expected, the in-house enquiry committee comprising Justices S A Bobde, Indu Malhotra and Indira Banerjee, with the speed of light, concluded its probe into the allegations of sexual harassment against their own Chief Justice Ranjan Gogoi (CJI Gogoi) and came to the conclusion that there existed no substance in the affidavit of their own ex-employee who had made the charge against CJI Gogoi.
To begin with, not only was the very formation of the in-house committee shrouded in mystery, but more importantly, it had no statutory backing, thus lacking in any credibility whatsoever.
Equally mysterious was who the enquiry report that exonerated CJI Gogoi of any wrongdoing, was actually submitted to by the committee, because the press note released by the Supreme Court’s Secretary-General on May 6, 2019 merely said the report had been handed over to the “next senior judge”, without actually disclosing who that was.
The report has to date not been shared with the complainant, the affected party in the case, though it has been sent to the accused i.e. CJ I Gogoi, for reasons not known to the public. If there are any good reasons for doing so, then the same reasons hold good for the woman complainant too.
But then, in this case, all basic rules and propriety were thrown to winds from the start, when the accused judge hurriedly constituted a three-judge bench and used the judicial seat to cast aspersions on the character of the woman complainant, and then later ensured that his name was not mentioned in the record of the proceedings of that day. Since then illegality and impropriety have only been perpetuated, instead of any course correction by the judges.
The entire saga began with the publication of the complaint by the former apex court staffer alleging that she had been sexually harassed by CJI Gogoi when she was assigned to his chamber. The complaint letter accompanied by a sworn affidavit had been sent to 22 sitting judges of the Supreme Court.
Within an hour of the publication of the said complaint by four online news portals, the Chief Justice of India who also happens to be the Master of Roster, hurriedly constituted a bench comprising himself and Justices Arun Mishra and Sanjiv Khanna. CJI Gogoi acted as a judge in his own case! Much has already been said about this gross impropriety on the part of CJI Gogoi; it needs no further discussion in the present article.
The press release by the Secretary-General
On May 6, 2019, the Secretary-General issued a press statement that the Justice Bobde committee had submitted its report dated May 5, 2019, in accordance with the in-house procedure, to the next senior judge competent to receive the report and that a copy of the report had also been sent to the concerned judge, namely, CJI Gogoi.
The press statement further said that the in-house committee had found no substance in the allegations of the former court employee and that the report was not liable to be made public in terms of the Supreme Court’s own decision in Indira Jaising v. Supreme Court of India.
Before I decode this press release – the only material available in the public domain – it would be apposite to refer to the in-house procedure as adopted by a full court of the Supreme Court in 1999.
What does the in-house procedure adopted in 1999 say?
The Supreme Court of India in its full-court meeting held on December 5, 1999 considered the report of a committee on the “in-house procedure” to be adopted for taking remedial action against judges who, by their acts of omission or commission, did not follow universally accepted values of judicial life, including those mentioned in the Restatement of Values of Judicial Life. The Full Court unanimously adopted the said report of the committee.
This committee provided that in case there were allegations against a judge of a high court, an in-house enquiry panel would have to constituted by the Chief Justice of India (CJI), consisting of two Chief Justices of high courts other than the high court to which the judge in question belongs, and one high court judge. In case of allegations requiring a probe against the Chief Justice of a high court, the committee would consist of a Supreme Court judge and two Chief Justices of high courts. If the committee found substance in the allegations contained in the complaint and the misconduct disclosed in the allegations was such that it warranted the initiation of proceedings for the removal of the judge, the CJI would advise the concerned judge to resign, or seek voluntary retirement.
In the case of a complaint against the judge of the Supreme Court, the said procedure provided that if a complaint was received against a judge of the Supreme Court by the CJI or if such a complaint was forwarded to him by the President of India, the CJI would first examine it and if it was found that it was either frivolous or did not directly involve any serious complaint of misconduct or impropriety, he could file away the complaint without any further action. If, on the other hand, it was found that the complaint was of a serious nature involving misconduct or impropriety, the CJI would ask for the response of the judge concerned. If on a consideration of the allegations and in the light of the response of the judge concerned, the CJI was satisfied that no further action was necessary, he could file away the complaint. If, however, he was of the opinion that the matter needed a deeper probe, he would constitute a committee consisting of three judges of the Supreme Court which would hold an enquiry along the same lines as the committee constituted to examine a complaint against a high court judge. Further action taken by the CJI would be similar to that taken in the case of a judge of a high court.
But what if the allegations are against the Chief Justice of India? A mere perusal of the 1999 in-house procedure shows that it provides nowhere for any enquiry against the CJI. Rather, it places the CJI on a different pedestal and authorises him to receive complaints against judges of the high court and the Supreme Court as well. Further, the in-house procedure nowhere contemplates the role of the next senior judge.
The question that arises then is which in-house procedure did the current three-member panel, comprising Justices S A Bobde, Justices Indira Banerjee and Indu Malhotra, follow?
A dismal record of transparency
What needs to be asked is whether the in-house procedure was modified recently to make the CJI subject to it or was the panel headed by Justice S A Bobde merely an ad-hoc arrangement. Answers to these basics questions pertaining to the procedure followed are not available in the public domain. But then the Supreme Court has a dismal record of following transparency in its own functioning.
It may be recalled that initially the three-member committee comprised Justices Bobde, Ramana and Indira Banerjee. Justice Ramana recused himself after the former court staffer pointed out that he was close to CJI Gogoi and that he had, following her complaint, publicly criticised her at a public gathering. In his letter dated April 25, 2019, while putting his recusal from the in-house panel on record, Justice Ramana said “Thanking all my Sister and Brother judges, who by reposing faith and confidence, unanimously chose me to be a Member of the Committee”.
This indicates that his induction in the in-house panel was with the approval of all judges of the Supreme Court, and therefore it can be said that the in-house panel had the approval of the Full Court. Beyond that nothing can be construed based on whatever little is available in the public domain.
The complainant in her interview to a few online news portals has said the judges who were in the in-house panel told her that “We are not here as a sexual harassment committee; it is not a departmental proceeding and it is not even an in-house proceeding. We are here just to work on your complaint.”
It is, therefore, reasonable enough to say the so-called in-house committee formed with the approval of the Full Court was merely an ad-hoc arrangement to look into the allegations of sexual harassment against CJI Gogoi.
In giving its approval to this ad-hoc arrangement, the Full Court has failed the citizens of this country.
The allegations against the CJI were not of corruption but of sexual harassment. The response of the Full Court should have been in conformity with the standards laid down in dealing with cases of sexual harassment.
The least the Full Court could have done was to adhere to its own guidelines in Vishaka and others. v. State of Rajasthan while approving any ad-hoc arrangement to deal with allegations of sexual harassment against their own chief. Instead it approved of a procedure which was not only against the apex court’s own decision but also against all principles of natural justice.
It is now learnt that the Attorney General for India, K K Venugopal had written to CJI Gogoi and four senior-most judges of the Apex Court on April 22, 2019, suggesting that a committee comprising three retired judges of the apex court be formed to look into the allegations. His suggestion had come prior to the formation of in-house panel headed by Justice Bobde. However, it appears none of the judges thought it appropriate to heed to his reasonable and just suggestion which could have built public faith in the institution.
The Supreme Court, continuing with its record of maintaining secrecy in its affairs, has not made available even to the complainant the copy of the notification whereby the so-called in-house panel headed by Justice S A Bobde was constituted. The terms of reference of the said in-house panel were not told to the complainant despite her fervent request to the panel.
Consider this: even the executive is not as secretive as the judiciary. It never withholds any notification or office order constituting an inquiry committee. In fact, it goes on to put it on its website.
Are judges above the law?
As noted above, the press statement issued by the Secretary General of the Supreme Court relying upon the Supreme Court’s decision in Indira Jaising v. Supreme Court of India, said that in-house committee report was not liable to be made public. The reliance placed upon Indira Jaising case misplaced for two reasons.
First, the decision of 2003 predates the Right to Information Act which came into existence in 2005. Section 8 of the RTI Act lists various grounds to withhold information, and the information can be denied only on those specified grounds.
Second, in so far the case of the former employee of the Supreme Court is considered, the decision of the apex court in Indira Jaising is completely inapplicable and clearly distinguishable. In fact, the Supreme Court in Addl. District & Sessions Judge ‘X’ v. High Court of M.P., (2015) 4 SCC 91 distinguished the Indira Jaising case and held:
“37…… this Court in Indira Jaising case [Indira Jaising v. Registrar General, Supreme Court of India, (2003) 5 SCC 494] declined to entertain the writ petition filed at the behest of a third party, seeking details of the proceedings, and the consequential report prepared by the Committee of Judges. But, that should not be understood to mean, that an individual concerned, who is called upon to subject himself/herself to the contemplated procedure, should be precluded or prevented from seeking judicial redress. It is now well understood, that an individual who subjects himself/herself to the jurisdiction of an authority, cannot turn around to find fault with it at a later juncture. If there is a fault, the same should be corrected, before one accepts to submit to the jurisdiction of the authority concerned. (Emphasis added) The submission of the petitioner in the present case, to the “two-Judge Committee”, would certainly have had the above effect. We are therefore satisfied to hold, that those who are liable to be affected by the outcome of the “in-house procedure”, have the right to seek judicial redressal, on account of a perceived irregularity. The irregularity may be on account of the violation of the contemplated procedure, or even because of contemplated bias or prejudice. It may be on account of impropriety. The challenge can extend to all subjects on which judicial review can be sought. (Emphasis added) The objections raised on behalf of Respondent 3, in respect of the sustainability of the instant petition at the hands of Addl. D & SJ X, are therefore wholly untenable. The challenge to the maintainability of the instant writ petition is accordingly declined.”
Thus, the in-house report is subject to judicial review, and there cannot be any reason why it cannot be shared with the affected party in the case i.e. the former employee of the Supreme Court. Instead the report has been shared with the person accused of sexual harassment, i.e. the Chief Justice of India. These double standards of the apex court show that the judges seem to believe they are above the law, and that the basic norms of natural justice do not bind them.
Pertinently, in-house procedures are non-statutory in nature. But participating in in-house proceedings do not take away the other legal remedies available to the complainant. The full court had a duty to strictly follow the spirit of the Vishaka case while approving the ad-hoc in-house panel to inquire into her complaint.
The best recourse could have been the induction of external members in the committee. A former CJI could have been appointed to head the committee to probe the allegations, with retired women judges as its members.
Public trust betrayed
It is a foregone conclusion that in its response to a very serious allegation against the Chief Justice of India, the Supreme Court of India, an institution which is said to be the repository of public trust, has betrayed the trust of the public. In fact, it almost seems opposed to all principles of justice and rule of law.
The more the Supreme Court favours opaqueness over transparency and arbitrariness over accountability in its administrative functions, the more it will dent its reputation.