On Monday, an in-house committee of the Supreme Court that was probing allegations of sexual harassment against the Chief Justice of India (CJI) Ranjan Gogoi gave its verdict.
It stated that it found “no substance in the allegations” made against the CJI by a former female employee of the Supreme Court. The statement issued by Secretary General of the Supreme Court, as posted on its website, also made it clear that as held in the Indira Jaising vs Registrar General, Supreme Court of India & Anr case, the “report of a committee constituted as part of the in-house procedure is not liable to be made public”.
The above-mentioned judgment not only states that the report of an in-house committee is not liable to be made public, but also makes it clear that the “only source or authority by which the Chief Justice of India can exercise this power of inquiry (against a judge accused of any misconduct) is “moral or ethical and not in the exercise of powers under any law”.
A reading of the judgment makes it clear that apart from the last-resort option of initiating an impeachment proceeding, there is no independent mechanism to hold the higher judiciary accountable.
In the present case, the complainant has no real legal recourse left.
The judgment in the Indira Jaising case states:
-In the Chief Justices' Conference held in December 1999, 16 clauses formed part of the Code of Conduct in addition to the declaration of assets by the judges and the in-house procedure was suggested in the event of any complaint against any judge.
-However, the sanction for these guidelines is absent. In our constitutional scheme, it is not possible to vest the Chief Justice of India with any control over the puisne judges with regard to conduct either personal or judicial.
-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.
-It is possible to criticise that decision on the ground that no inquiry was held and the judge concerned had no opportunity to offer his explanation, particularly when the Chief Justice is not vested with any power to decide about the conduct of a judge.
-There is no adequate method or machinery to enforce the Code of Conduct.
-Article 124 provides for appointment of judges of the Supreme Court and also their removal. Similarly, Article 217 deals with the appointment and removal of the judges of the High Court. In the Judges' Enquiry Act of 1968, provisions are made for investigation into misbehaviour or incapacity of a judge.
-It may be noted that since judges of the superior courts occupy very high positions, disciplinary proceedings which exist in the case of all 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.
-No other disciplinary inquiry is envisaged or contemplated either under the Constitution or under the Act.
The judgment while acknowledging this “lacuna” (absence of any mechanism to probe allegations against Supreme Court and High Court judges) states: "On account of this lacuna, in-house procedure has been adopted for inquiry to be made by the peers of judges for report to the Hon'ble Chief Justice of India 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 and that the in-house inquiry is for the purpose of his own information and satisfaction.
However, it adds another layer of immunity from accountability by stating that the “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”.
And it leaves the complainant with just one option if he/she is not satisfied with the in-house committee’s findings and that is (as stated in the judgment) “to invoke the provisions of Article 124 or Article 217 of the Constitution”.
The judgment also makes it clear that the petitioner should not seek any relief or direction for release of the report from the court as “what the Chief Justice of India has done is only to get information from peer judges of those who are accused, and the report made to the Chief Justice of India is wholly confidential”.
Also, it clarified the nature of the report which is “only for the purpose of the satisfaction of the Chief Justice of India that such a report has been made" and it is "purely preliminary in nature, ad hoc and not final”.
And it finally concludes that “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 exercise of powers under any law. Exercise of such power of the Chief Justice of India based on moral authority cannot be made subject matter of a writ petition to disclose a report made to him. 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 exercise of powers under any law. Exercise of such power of the Chief Justice of India based on moral authority cannot be made subject matter of a writ petition to disclose a report made to him".
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Updated Date: May 06, 2019 20:25:21 IST