An in-house committee constituted by the Supreme Court to probe the sexual harassment allegations levelled against Chief Justice of India Ranjan Gogoi has submitted its report.
The Committee has given a clean chit to CJI Gogoi and concluded that there is no substance in the allegations of the complainant.
Interestingly, a notice published on the Supreme Court in relation to the same states that as per the 2003 judgment in Indira Jaising v. Supreme Court of India, the report of a committee constituted as part of the in-house procedure is not liable to be made public. Hence, the current report will not be made public.
What was held in this 2003 judgment? Let us take a look.
The judgment was passed in a petition filed in 2003 by Senior Advocate Indira Jaising. The petition was a public interest litigation praying for the publication of a report of an in-house committee comprising Chief Justices and a Judge of different High Courts. The report pertained to certain allegations against sitting judges of the High Court of Karnataka.
Jaising had also prayed for a direction to any professional and independent investigating agency having expertise to conduct a thorough investigation into the said incident and to submit a report on the same.
The question which came to be considered by the Supreme Court was regarding the nature of inquiry conducted by an in-house committee and whether a report made by such a committee should be placed in the public domain.
In a short judgment, the Court answered issues that have a bearing upon the current controversy as well.
Remedy against a judge of the Supreme Court/High Court
Article 124 provides for the appointment and removal of judges of the Supreme Court. Similarly, Article 217 deals with the appointment and removal of judges of the High Court. In the Judges’ (Inquiry) Act of 1968, provisions are made for an investigation into misbehavior or incapacity of a judge.
It may be noted that since judges of the superior courts occupy very high positions, disciplinary proceedings that apply to other employees cannot be thought of. A judge cannot be removed from his office except by impeachment by a majority of the House and a majority of not less than 2/3rd present and voting as provided by Articles 124 and 217 of the Constitution of India.
The Judges (Inquiry) Act provides for the manner in which an inquiry can be conducted into an allegation of judicial misconduct after an impeachment motion is endorsed by at least 100 Lok Sabha members or 50 Rajya Sabha members. The Presiding Officer of the concerned House has the power to constitute a Committee consisting of three persons as enumerated therein. No other disciplinary inquiry is envisaged or contemplated either under the Constitution or under the Act.
Since there was no other procedure against a judge of a Supreme Court or High Court, an in-house procedure was laid down.
This was done at Chief Justices’ Conference held in December 1999. A Code of Conduct was laid down which contained 16 clauses in addition to the declaration of assets by the judges. The in-house procedure was suggested in the event of any complaint against any judge.
The 2003 judgment states that the in-house procedure has been adopted for inquiry to be made by the peers of judges in case of a complaint against the Chief Justices or Judges of the High Court in order to find out truth of the imputation made in the complaint. That in-house inquiry is for the purpose of his (CJI’s) own information and satisfaction.
Why cant the In-House Committee report be made public?
A report made on such inquiry, if given publicity, will only lead to more harm than good to the institution, as judges would prefer to face inquiry leading to impeachment, the judgment states.
It is not appropriate for the petitioner to approach the Supreme Court for a direction for release of the report, the Court held in Jaising’s case. All that the CJI does in case of an in-house procedure is to get information from peer judges of those who are accused and the report made to the Chief Justice of India is wholly confidential. The said report is only for the purpose of satisfaction of the Chief Justice of India.
It is purely preliminary in nature, ad hoc and not final.
What after the report of In-House Committee?
Now comes the important part.
The Court states that if the Chief Justice of India is satisfied that no further action is called for in the matter, the proceeding is closed. If any further action is to be taken as indicated in the in-house procedure itself, the Chief Justice of India may take such further steps as he deems fit.
What are such further steps?
The judgment goes on to state the obvious. That is, in the hierarchy of the courts, the Supreme Court does not have any disciplinary control over the High Court judges, much less the Chief Justice of India has any disciplinary control over any of the judges. That position in law is very clear.
Thus, the only source or authority by which the Chief Justice of India can exercise this power of inquiry is moral or ethical and not in the exercise of powers under any law. Exercise of such power of the Chief Justice of India based on moral authority cannot be made the subject matter of a writ petition to disclose a report made to him.
However, the judgment also states that in case of breach of any rule of the Code of Conduct, the Chief Justice can choose not to post cases before a particular Judge against whom there are acceptable allegations.
Effectively, the CJI, after considering the report of the committee, cannot take any effective steps except refrain from posting any case before such a judge as Master of Roster. But what if the allegation is against the Master of Roster himself?
As an appendage, the last paragraph in the judgment states that if the petitioner can substantiate that any criminal offence has been committed by any of the judges mentioned in the course of the petition, appropriate complaint can be lodged before a competent authority for taking action by complying with requirements of law.
So, the way forward could be to lodge a complaint with the police, which the complainant has not done so far.
But there is another roadblock in this regard – another Supreme Court judgment of 1991 – K Veeraswami v. Union of India.
As per the said judgment, judges of Supreme Court and High Court have an additional layer of protection against criminal cases. Any FIR and investigation against a judge of the higher judiciary would require the permission of the Chief Justice of India.
Further, K Veeraswami says that if the allegations are against the Chief Justice, then the permission required would be of other judges. This could mean permission of the next senior most judge, Justice SA Bobde, who was part of the committee which a gave clean chit to the CJI.
All in all, there seems to be no light at the end of the tunnel for the complainant.