Justice denied

SC panel falters on transparency and fairness test

The procedure through which the three-judge committee’s findings exonerated Chief Justice Ranjan Gogoi raises more questions than answers. One of the anomalies in the apex court is that the CJI’s permission is required to proceed with any complaint against an employee. Since he himself is outside the purview of this rule, minimum propriety demanded he followed the highest standards of due process and allowed the formation of an investigation committee that included an external member — Justice D Y Chandrachud had suggested the names of several retired Supreme Court justices. Instead, a three-member panel of judges was set up which was, it was later learnt, not a formal internal complaints committee but some unspecified intermediary called an “internal committee”. 

In parallel, a one-man panel was constituted to inquire into a charge by one male lawyer that the sexual harassment charges were part of a larger conspiracy to frame the CJI. Note that this investigation has been handed off to an external representative, a retired Supreme Court judge but the specific charges against the CJI were to be examined by three judges who have a reporting relationship with him. This committee then ignored the minimum procedures by disallowing the admission of documents and records that the complainant had set out in her sworn affidavit, of not calling witnesses she identified in her complaint or of allowing her lawyer to be present. When she withdrew rightly highlighting these procedural lapses, this “committee” went ahead ex-parte and found the CJI not guilty. 

The reasoning by which the panel came to this decision was submitted under a sealed cover. The minimum requirement of providing the complainant with a copy was ignored. It is also worth considering whether such a serious accusation demands that the document be placed in the public domain. The committee’s citing of a precedent in withholding publication of its report has also been proven to be specious. The judgment concerned —  Indira Jaisingh versus Supreme Court and Anr — concerned a “preliminary enquiry” involving an “in-house procedure” against a High Court judge. This committee had, however, not clarified whether it was following in-house procedures and its findings are not preliminary in nature. By not making the report public, the panel has been found wanting on the requirement of transparency.

It is ironic that four Supreme Court judges — including the Chief Justice of India — appear to have pitted themselves against a significant section of the lawyer community, two brother justices, Chandrachud and Rohinton Nariman, and an organisation called Women in Criminal Law Association over a matter of due process for which the apex court set out pioneering guidelines two decades ago. Even more disturbing is the open display of institutional power against a junior woman employee complaining of sexual harassment by the head of that very organisation. It was a great opportunity for the Supreme Court to walk the talk on fairness, but the apex court faltered when it came to dealing with its own. No less questionable was the crude deployment of state power by arresting women lawyers who were protesting peacefully against the panel’s modus operandi and demanding that the complainant be treated with a minimum of legal propriety.