Not only must justice be done, it must also be seen to be done

The court rejected pleas which had sought re-examination of the December 14, 2018 verdict . Photo: PTI.

I request the Honorable Supreme Court to make public the report that gave a clean chit to the Chief Justice of India Ranjan Gogoi regarding charges of sexual harassment filed by a former woman employee of the top court for the following reasons.

We don’t know what the truth is! All laws and procedures are in place only to find out the truth. If the CJI is innocent he should not be embarrassed. At the same time if the complainant has complaints about the process of inquiry, it is the duty of the institution to assure the integrity of the process. The judiciary shines as a credible pillar of constitutional democracy because trials are transparent, evidence is taken with the accused or the complainant in the loop, and judgments are pronounced in the open. In the CJI case, the judges have refused to give a copy of the report to the complainant.

The people of this country have been informed that the in-house committee of the Supreme Court consisting of three judges, has cleared Chief Justice of India Ranjan Gogoi, saying that there was “no substance” in the complaint. The complainant claimed that the she was not given access to the report and had no hope of getting it, which would help her seek a review or file an appeal. Principles of criminal justice, as well as the PoSH Act and the RTI Act specifically, the complainant is entitled to have a copy of the report.

There are several information issues in this episode, apart from issues of principles of natural justice which have already been raised. First and foremost, the problem is in keeping the report confidential. According to the CJI and other dignitaries, there is a “larger conspiracy” behind the allegation. The public has the right to know the details of the report, which should have been made public after redacting the details that need not be disclosed, especially in a sexual harassment complaint like this.

Quoting the Supreme Court judgment in Indira Jaising vs Supreme Court of India (https://indiankanoon.org/doc/130422354/), the committee declared that their report was constituted as part of an in-house procedure and hence not liable to be made public. This 16-year old judgment, dated 9th May 2003, is a pre-RTI era order of the apex court. This judgment was in connection with the publication of the “report by a committee of judges in respect of alleged involvement of sitting judges of the High Court of Karnataka in certain incidents”, known as the “Mysore incident.” The then CJI decided not to publish the report, on the following grounds:

  1. The CJI wanted only to get information from the peer judges of those who were accused, and the report is held confidential.

2.It is purely preliminary in nature, ad hoc and not final.

  1. Supreme Court does not have any disciplinary control over the High Court judges, much less the CJI has any disciplinary control over any of the judges.

4. The sole source of authority by which the CJI can exercise this power of inquiry is moral or ethical and not in exercise of powers under any law.

  1. Exercise of such power by CJI based on moral authority cannot be made subject matter of a writ petition to disclose a report made to him.

All these points cannot apply in the present alleged sexual harassment case for the following reasons:

  1. The CJI in this case was not seeking the views of peer judges, but three judges constituted a committee to inquire into an allegation against the CJI. It is not known whether it was prescribed and informed that the report of the inquiry committee would be kept under wraps as confidential. Is it an official secret or are there any other grounds for categorising it as ‘confidential’?

2. Though claimed to be an informal process, it has been conducted like a formal inquiry, hence the procedure regarding detailed reasoning for conclusion should be given.

3. The Supreme Court or the CJI does not have any disciplinary control over any other judges. Similarly, the subordinate SC Judges (three judges committee) will have no such control over the CJI. In that case, why is the inquiry conducted?

4. The incidents probed in the Karnataka case were not based on a complaint of any aggrieved woman. But this case is based on a specific complaint by a member of the court staff.

5. If the moral authority of the judges is quoted to deny the report, same authority could become cause to give the report.

As per Indira Jaising order, the enquiry into the “Mysore incident” was informal and only to gather some information from colleague judges, but in this case, it is a statutorily mandated inquiry and it is not opinion collection or information gathering.

RTI Angle

The Bench of Justice Rajendra Babu and Justice G P Mathur referred to the then Freedom of Information Act, 2002, in Indira Jaising case saying that “it also, does not say in absolute terms that information gathered at any level in any manner for any purpose shall be disclosed to the public. The inquiry ordered, and the report made to the Chief Justice of India being confidential and discreet is only for the purpose of his information and not for the purpose of disclosure to any other person”.

The facts and circumstances of these two cases are such that the order given in the Indira Jaising case is not applicable to the CJI case which is entirely different. The conclusions in that case are not relevant.

The Right to Information Act, 2005 has repealed the Freedom of Information Act 2002, and laid down an exception that “information which would impede the process of investigation or apprehension or prosecution of offenders” need not be disclosed, unless public interest overrides interest in protecting that information. (Section 8(1)(h) read with 8(2) of Right to Information Act, 2005). This exception cannot be invoked in this case because already the inquiry is completed, and report submitted. The publication of the report, under any stretch of imagination, cannot impede the inquiry or prosecution or apprehension of any accused or any other person in this case.

Prohibition on media

However, section 16 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, prohibits publication or making known the content of complaint and inquiry proceedings. This section overrides the RTI Act. It provides that the identity and addresses of the aggrieved woman, respondent witnesses, recommendations of the internal committee and the action taken by the employer under the provisions of this Act shall not be published, communicated or made known to the public, press and media in any manner. This does not prohibit the disclosure of the ‘report’ of the committee.

An interpretation that this includes the ‘report’ also is not possible, because Parliament, while discussing other details meticulously, has omitted the word ‘report’ deliberately, which means it did not want to prohibit the disclosure of the report.  The objective of prohibition on media in this section is to prevent undue stigmatization of the aggrieved woman. The report can be disclosed without including the names and details of the complainant.

When a judgement given by the courts in a rape case could be made public without mentioning the name of the victim, with all details of examination of witnesses, and their cross examination, prohibiting the report of an internal inquiry committee appears to have no reason or legal basis.

Especially when the committee is convinced that there was no substance in the allegation, it has the duty to give the reasons for its decision and to convince the people in general about the correctness of its conclusion. Section 16 of the PoSH Act prevents media from publishing contents of the complaint, but the whole complaint is already in the public domain and has extensively been reported in the media.

When the RTI Act specifically gives powers to override all the other laws including Official Secrets Act, 1923, as far as disclosure is concerned, having counter-overriding provision like Section 16 in PoSH Act is contradictory. Its legality has not been, so far, challenged. It is a moral and legal duty of the committee to inform the people about the lack of substance in the allegation against the CJI.  It might help in the strengthening of the institution and belief that judiciary is not only independent but also accountable.

When Justice V Ramaswamy, former judge of the Supreme Court, faced impeachment proceedings for certain alleged ‘misconduct’, there was a committee of the Supreme Court which conducted an inquiry. The then Chief Justice of India Sabhyasachi Mukharji did not keep it under wraps but released the report. The petitioner’s counsel in Indira Jaising’s case, Shanti Bhushan referred to the disclosure of this report. But the Supreme Court in Indira Jaising case found no parallel or analogy between the Mysore incident report and the Ramaswamy episode.  Similarly, the Mysore incident report is totally different from the present report on the sexual harassment complaint.

Several questions of legality and propriety are raised in this case. Is this an in-house inquiry on an alleged misconduct of a judge under its own power or an inquiry under the PoSH Act? The Supreme Court has a duty to inform the complainant and the people in general with regard to the process adopted, law followed, principles of natural justice  adhered to, provision for complaint to file an appeal or seek a review of the report, if so where and how?. Also, it should have made clear if the complainant will get an opportunity to cross examine the witnesses of the respondent and whether the witnesses who are subordinate staff members of the apex court, have deposed, if so what have they said, etc.

Apart from all these points, the Supreme Court as an institution, which is a ‘state’ under Article 12 of the Constitution, while exercising the administrative functions, has a duty to inform the public on its own the policy adopted in such cases, the manner of dealing with cases where the complainant walks out of an inquiry, how an appeal or a review was provided, why the report is made non-disclosable etc. Section 4(1)(c) of RTI Act says: Every public authority shall publish all relevant facts while formulating important policies or announcing the decisions which affect the public; Similarly, Section 4(1)(d) advocates providing reasons for its administrative or quasi-judicial decisions to the affected person. This policy of the Supreme Court affects all the persons, as no aggrieved woman could get a fair process if she complained against judges of the Constitutional Courts for all times to come.

What is the SC’s response to the purported letter written by Justice D Chandrachud saying that the credibility of the SC would suffer if the inquiry proceeded in the absence of the person, who has accused the CJI of sexual harassment, and suggesting that the woman should be provided with a lawyer to assist? Did the court receive that letter?

Does legal remedy or justice depends upon the status of the respondent (CJI) or that of the complainant (lower rung court staff)? If the respondent in such a case is an ordinary public servant, the complainant could have many procedural rights and remedies under the PoSH Act or Regulations, ranging from appeals within the department to the High Court and the Supreme Court.

It must be surely within the knowledge of the Supreme Court that R v Sussex Justices, ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233) is famous for its precedence in establishing the principle that the mere appearance of bias is enough to overturn a judicial decision. It also brought into common parlance the oft-quoted maxim “Not only must Justice be done; it must also be seen to be done.”

Perhaps this complainant is fortunate enough to have instant judgement within 16 days- a record indeed. But she doesn’t know if this is final. She should take solace from the maxim that “Justice delayed is justice denied” and should not complain over “Justice hurried is justice buried.”

(The author is a former Central Information Commissioner and presently professor at Bennett University)

(thefederal.com seeks to present views and opinions from all sides of the spectrum. In case of articles by contributors who are not staff of thefederal.com, the information, ideas or opinions in the articles are of the author and do not reflect the views of thefederal.com. thefederal.com does not assume any responsibility or liability for the same)