Sexual harassment allegation against CJI Ranjan Gogoi: Ex-SC staffer's plea for representation holds no water; in-house panel not same as formal inquiry

On Tuesday, the former apex court employee who accused Chief Justice of India (CJI) Ranjan Gogoi of sexual harassment decided to withdraw from the proceedings of the in-house committee. According to the complainant’s press release, she decided she could no longer participate in the proceedings because she was not being allowed to have a lawyer/support person, the proceedings were not being recorded and she was not given a copy of the statement recorded on 26 and 29 April.

The complainant alleged that when she told the committee she cannot continue to participate in the proceedings if her concerns are not addressed, the committee told her if that was case it would carry on “ex parte.” Given this development, the most important question is: What will be the committee’s next step? Will it proceed “ex parte” as alleged by the complainant? And most importantly, can it do so?

When the allegations against the CJI first came to light, the question that was immediately asked was: Why was the complaint not referred to the Supreme Court Gender Sensitisation and Internal Complaints Committee?

The reason for this was that Supreme Court Gender Sensitisation and Internal Complaints Committee (GSICC) has no jurisdiction over the employees of Supreme Court, including the judges. Any proceedings, when it comes to allegations against judges, are guided by the in-house procedure adopted by the ‘Full Court Meeting’ on 12 December, 1999. A careful reading of this procedure can throw light on the nature and powers of the committee in this regard.

“Report of the Committee on in-house procedure” provides rules for conducting inquiry into allegations against a judge of the high court, a Chief Justice of a High Court, or a Supreme Court Justice. As per the report, in context of the allegations made against a high court judge, “After considering the complaint in the light of the response of the judge concerned and the comments of the Chief Justice of the High Court, the CJI, if he is of the opinion that a deeper probe is required into the allegations contained in the complaint, shall constitute a three-member committee consisting of two chief justices of high courts other than the high court to which the judge belongs and one high court judge.”

An important point from the report that needs to be highlighted is that it clearly states that, “Committee shall hold an inquiry into the allegations contained in the complaint and the inquiry shall be in the nature of a fact finding inquiry wherein the judge concerned would be entitled to appear and have his say.” It added, “But it would not be a formal judicial inquiry involving the examination and cross-examination of witnesses and representation by lawyers.” Another important point in the report is that it clearly states that for “conducting the inquiry the committee shall devise its own procedure consistent with the principles of natural justice.”

Further, in context of allegations made against the judge of the Supreme Court it states, “The said committee (consisting of three judges of the Supreme Court) shall hold an inquiry on the same pattern as the committee constituted to examine the complaint against a judge of a high court and further action on the same lines in the light of the findings of the committee shall be taken by the CJI.”

This makes it clear that pattern of inquiry in probing a judge of a high court, chief justice of a high court, and a judge of the Supreme Court, the procedure remains the same. Which means the committee has right to “devise its own procedure” and the judge against whom the allegations are made will be “be entitled to appear and have his say.” But nowhere does it mention that it needs to give the complainant an audience or chance have his or her say.

As stated in the ‘in-house procedure’ the inquiry shall be “in the nature of a fact finding” and it “would not be a formal judicial inquiry involving the examination and cross-examination of witnesses and representation by lawyers”. So, the complainant’s plea that she was not allowed to be represented by a lawyer and to present evidence does not hold water. However, it can be questioned whether this honours the principle of natural justice.

Given this fact, the committee, which is essentially formed for “fact finding,” can very much give its ‘findings’ ex parte, if the complainant choose to stay firm in her decision of withdrawing from the proceedings. High court and Supreme Court judges are protected against any complaint under Section 154 of the Criminal Procedure Code . The landmark K Veeraswami judgment held, “No criminal case shall be registered under Section 154, CrPC against judge of the high court, Chief Justice of High Court or judge of the Supreme Court unless the Chief Justice of India is consulted in the matter. Due regard must be given by the government to the opinion expressed by the Chief Justice. If the Chief Justice is of opinion that it is not a fit case for proceeding under the Act, the case shall not be registered.”

The judgment further stated, “If the Chief Justice of India himself is the person against whom the allegations of criminal misconduct are received the government shall consult any other judge or judges of the Supreme Court. There shall be similar consultation at the stage of examining the question of granting sanction for prosecution and it shall be necessary and appropriate that the question of sanction be guided by and in accordance with the advice of the Chief Justice of India”. In this context, the complainant has no option other than relying on the in-house committee for getting “justice.”