Supreme Court’s clean chit to Justice Ramana latest instance of opacity in its inner working

Analyzing the way Andhra Pradesh chief Minister Jagan Mohan Reddy's complaint against Justice N.V. Ramana was dealt with by the Supreme Court, PARAS NATH SINGH writes why the top court must be transparent in all matters in-house; the public has a right to know.

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THE Supreme Court, on March 24, uploaded a statement on its website confirming that a complaint made by the Chief Minister of Andhra Pradesh, YS Jagmohan Reddy, against its senior-most puisne judge, Justice N.V. Ramana, had been dismissed after being dealt with under the court's in-house procedure.

The brief statement that it put out reads as follows:

"A complaint dated 6th October 2020 sent by the Chief Minister of Andhra Pradesh to the Supreme Court was dealt with under the In-house Procedure and the same, on due consideration, stands dismissed.  It be noted that all the matters dealt with under the In-House Procedure being strictly confidential in nature, are not liable to be made public."

The statement does not, however, explain what exactly the procedure was that was followed before closing the complaint made by Reddy alleging that Justice Ramana had been influencing the Andhra Pradesh High Court against his government.

What does the in-house procedure say?

As per the In-House Procedure adopted by a full court of the Supreme Court in 1999, if a complaint is made against a sitting judge of the Supreme Court, the Chief Justice of India (CJI) will examine it. If it is found to be either frivolous, or directly related to the merits of a substantive decision in a judicial matter, or does not involve any serious complaint of misconduct or impropriety, the complaint shall be closed without further action.

In case the CJI finds that the complaint is of a serious nature involving misconduct or impropriety, a response from the judge would be sought.

If on consideration of the allegations in light of the response of the concerned judge, the CJI is satisfied that no further action is necessary, the complaint shall be closed. If, however, the CJI is of the opinion that the matter needs a deeper probe, a committee consisting of three judges of the Supreme Court shall be constituted.

It is not clear from the Supreme Court's statement which part of this procedure was followed while dealing with the complaint against Justice Ramana. Was an in-house committee formed, or did CJI Bobde dismiss the complaint after being satisfied with Justice Ramana's response?

It may be noted that the Supreme Court's statement does not even mention the words "in-house inquiry". It uses the term "in-house procedure" twice. Had an in-house Committee been formed to examine the complaint, it would have undoubtedly issued a notice to the complainant, i.e., the Andhra CM, to hear his version. It may be recalled that in the case of the in-house committee led by Justice Bobde formed to probe the allegations of sexual harassment against then-CJI Gogoi in 2019, notice was issued to both the complainant and Justice Gogoi to record their respective statements.

An in-house inquiry committee constituted to probe the allegations against Odisha High Court Justice Indrajit Mohanty had also issued notice to the complainant, Jayanta Das, to make himself available before the committee.

In the absence of adequate disclosure by the Supreme Court on the in-house procedure followed to deal with the complaint against Justice Ramana, it would be prudent to assume, on the basis of publicly available information and precedent, that the complaint was closed by CJI Bobde on the basis of the statement received from Justice Ramana, which the former found satisfactory. It was ostensibly for this reason that the need to have an in-house committee was dispensed with.

It has been reported that the CJI and two other senior judges looked into the CM's complaint and examined the charges. This indicates that the CJI formed his opinion in consultation with two senior judges, which is distinct from the in-house inquiry committee that has to necessarily comprise three Supreme Court judges.

The CJI cannot be part of the in-house inquiry committee for the simple reason that the CJI also acts as a decision-making authority since the committee's report is submitted to the CJI under the in-house procedure. The CJI, therefore, cannot act both as a committee member and the decision-maker for that will defy the principles of natural justice.

In fact, in Addl. District & Sessions Judge 'X' v. High Court of Madhya Pradesh (2014), the Supreme Court held that "[e]ven though the "three-member Committee" is at liberty to devise its own procedure, the inherent requirement provided for is, that the procedure evolved should be in consonance with the rules of natural justice."

What if there was an In-House Committee?

As per the Supreme Court's in-house procedure, such a committee holds an inquiry on the same pattern as the committee constituted to examine a complaint against a judge of a High Court, and further action on the same lines in light of the findings of the committee shall be taken by the CJI.

The in-house procedure states that such an inquiry shall be in the nature of a fact-finding inquiry wherein the judge concerned is entitled to appear and have their say (but it would not be a formal judicial inquiry involving the examination and cross-examination of witnesses and representation by a lawyer).

It also provides that for conducting the inquiry, the committee shall devise its own procedure consistent with the principles of natural justice.

At the end of such an inquiry, the committee may conclude and report to the CJI that:

a) there is no substance in the allegations contained in the complaint, or

b) there is sufficient substance in the allegations contained in the complaint and the misconduct disclosed is so serious that it calls for initiation of proceedings for the removal of the Judge, or

c) there is a substance in the allegations contained in the complaint, but the misconduct disclosed is not of such a serious nature as to call for initiation of proceedings for the removal of the judge.

In a case where the committee finds there is no substance in the allegations contained in the complaint, the complaint shall be closed by the CJI.

If the committee finds that there is a substance in the allegations contained in the complaint and the misconduct disclosed in the allegations are such as to call for initiation of proceedings for the removal of the judge, the CJI shall adopt the following course:

a) the judge concerned should be advised to resign his office or seek voluntary retirement;

b) If the judge concerned refused to resign or seek voluntary retirement, CJI can withdraw judicial work from him, and the President and Prime Minister will be intimated that this has been done because allegations against the judge had been found by the committee to be so serious as to warrant the initiation of proceedings for removal and copy of the report of the committee will be sent to them.

If the Committee finds that there is a substance in the allegations but the misconduct disclosed is not so serious as to call for impeachment, the CJI shall call the judge concerned and advise them accordingly, and may also direct that the report of the committee be placed on record.

Needed: more transparency in Supreme Court's inner functioning

The details of the cases dealt with under the in-house procedure are kept confidential citing the decision of the Supreme Court in Indira Jaising vs. Registrar General, Supreme Court (2003) in which it was held that the inquiry ordered, and the report made to the Chief Justice of India, being confidential and discreet is only for the purpose of the CJI's information and not for the purpose of disclosure to any other person.

Notably, this decision is of the pre-RTI Act, 2005 era and therefore must be reconsidered.

The track record of the judiciary, particularly the Supreme Court of India, in being transparent in its administrative functioning has been rather dismal.

From the appointment of judges to the action against judges for their misconduct, everything is shrouded in secrecy.

In a catena of decisions, the Supreme Court has lauded people's right to know. However, when it comes to the Supreme Court, it chooses to remain opaque – failing to practice its own preaching.

More recently, the Supreme Court refused to disclose Justice AK Patnaik's probe report into the larger conspiracy to frame the then CJI Gogoi in a sexual harassment case.

The Supreme Court should not hesitate in following in true spirit what it rightly observed in State of Uttar Pradesh. vs. Raj Narain (1975):

"In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can but few secrets. The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing…."

As sagely noted by the Supreme Court in the Lok Parahari case (2018), in a democracy, citizens are the ultimate repository of sovereignty, and they must have access to all information that enables a critical audit of the performance of the State, its instrumentalities and their incumbent or aspiring public officials.

(Paras Nath Singh is a Delhi-based lawyer and a frequent contributor to The Leaflet. The views expressed are personal.)