Not Only Must Justice Be Done,It Must Also Be Seen To Be Done

By
M Sridhar Acharyulu
Former Central Information Commissioner and Professor of Law, Bennett University

The people of this country are informed that in-house Committee of Supreme Court consisting of three judges, has cleared Chief Justice of India (CJI) Ranjan Gogoi of sexual harassment allegations raised by a former employee claiming ‘no substance’ in the complaint. The complainant claimed that report was denied to her and had no hope of getting it, to seek review or file appeal. As per principles of inquiry, criminal justice and POSH Act and under RTI Act, the Honourable Supreme Court has to make the Report public to be fair and reasonable, and the complainant is entitled to have a copy of the report.

How can judges after judging the judge deny the judgement to the complainant?

We don’t know what the truth is! Entire law and procedures are made only to find out the truth. If the CJI is innocent he should not be embarrassed. At the same time if the complainant has grievances 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 of its openness of trial, no evidence is taken at the back of accused or complainant, and even judgment is pronounced in open.

Confidentiality of the report

There are several information issues in this episode, apart from issues of principles of natural justice which were already raised. First and foremost, problem is considering the report confidential. According to CJI and other dignitaries, there is ‘larger conspiracy’ behind this allegation. That public interest gives rise to a right of public to know and hence the report should have been made public after redacting the details if need not be disclosed, especially in complaints like sexual harassment.

Quoting the Supreme Court judgment in Indira Jaising v Supreme Court of India , the committee declared that their report constituted part of the 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 relating to publication of the “report by committee of judges in respect of alleged involvement of sitting judges of the High Court of Karnataka in certain incidents”, known as Mysore Incident. Then, the CJI decided not to publish the report, on the following points:

1. In that case the CJI wanted only to get information from peer judges of those who are accused, and report is held confidential.

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

3. 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. Only 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.

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

Indira Jaising case not applicable in this case

All these points cannot apply in the present case of sexual harassment complaint on the following reasons.

1. The CJI in this case was not seeking 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 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. This report also is preliminary or ad hoc or final report. Though claimed to be informal process, it is conducted like a formal inquiry, hence the procedure with detailed reasoning for conclusion should be given. People in larger public interest have right to know the report after, redacting minute details of incident, if needed for any reason.

3. The Supreme Court or 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 inquiry is conducted?

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

Factually different facts and circumstances of these two cases makes the order in first as not applicable to the second. This case is entirely different. The conclusions in that case are not relevant in this case.

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 inquiry was 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 contents of complaint and inquiry proceedings. This section overrides the RTI Act. It provides that identity and addresses of 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 did not prohibit the disclosure of ‘report’ of Committee.

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

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

When RTI Act has specifically given 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 was not so far challenged. It is the moral and legal duty of the Committee to inform the people about lack of substance in the allegation against the CJI. It might help strengthening of credibility of the institution and belief that judiciary is not only independent but also accountable.

Justice V Ramaswamy impeachment case

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

Under what legal purview does this case fall under?

Several questions of legality and propriety are raised in this case. Is this an in-House inquiry on misconduct of a judge under its own power of Supreme Court or an inquiry under POSH Act? The Supreme Court has a duty to inform the complainant and the people in general, what process was adopted, which law was followed, whether principles of natural justice were adhered to, is there any provision for complaint to file appeal or seek review of this report, if so where and how, will she get opportunity to cross examine the witnesses of respondent, whether witnesses who are subordinate staff members of apex court, have deposed, if so what have they deposed, etc.

Apart from all these points, the Supreme Court as an institution, which is ‘state’ under Article 12 of the Constitution, while exercising the administrative functions, has a duty to inform public on its own, what was its policy in such cases, how they deal with cases where complainant walks out of inquiry, how appeals or 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) says provide reasons for its administrative or quasi-judicial decisions to affected person. This policy of Supreme Court affects all the persons, as no aggrieved woman could get fair process if she complained against judges of the constitutional courts for all times to come.

What is SC 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 woman should be provided with a lawyer to assist? Or whether court received that letter?

Whether legal remedy or justice depends upon the status of the respondent (CJI) or that of the complainant (lower rung court staff)? Had the respondent in such case is an ordinary public servant, the complainant could have many procedural rights and remedies under POSH Act or Regulations, ranging from appeals within the department to High Court and Supreme Court. Had this kind of inquiry happened in any non-judicial department, Supreme Court could have struck down this report as illegal, unreasonable, against principles of natural justice and hence violative of rights of woman.

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 history indeed. But she doesn't know if this is final. She should be happy that justice delayed could be justice denied and should not complain that justice hurried might mean justice buried.

Also Read: CJI Gogoi Gets Clean Chit In Sexual Harassment Allegations