New Delhi: The in-house committee of the Supreme Court Monday cited a 2003 case in support of its decision to not disclose the final report on its probe into the sexual harassment allegations against Chief Justice of India Ranjan Gogoi made by a former top court employee.
Citing the Indira Jaising v. Supreme Court of India & Anr. case, the panel said its report is not liable to be made public. The complainant has not received the report, either. On Tuesday, the woman wrote to the panel asking for a copy of the report.
Following the Supreme Court’s statement, senior advocate Indira Jaising tweeted late Monday, “#NotInMyName This is a scandal. Indira Jaising v Supreme Court of India was also a case of sexual harassment by a sitting High Court of Karnataka. It is a pre RTI case and is bad in law. Demand the disclosure of the findings of the enquiry committee in public interest.”
https://twitter.com/IJaising/status/1125367764921667585
As controversy over the report snowballs, ThePrint looks back at the 2003 case and the judgment which paved the way for such action.
The 2003 case
On 9 May 2003, Jaising filed a petition under Article 32 for the publication of an inquiry report by a three-member committee that had been formed by former CJI G.B. Pattanaik to investigate “allegations of involvement in certain incidents” against sitting judges of the Karnataka High Court.
The panel, comprising then Bombay High Court chief justice C.K. Thakkar, then Kerala High Court chief justice J.L. Gupta and former Orissa High Court judge A.K. Patnaik had given a clean chit to the Karnataka HC justices.
Jaising sought the committee report to be made public, and for an independent agency to investigate the allegations and present them to the Supreme Court.
In her tweet Monday, Jaising revealed that the case was related to sexual harassment allegations.
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What the judgment was
Jaising’s petition was heard before Supreme Court judges S. Rajendra Babu and G.P. Mathur.
In his judgment, Babu said there was no sanction in the Code of Conduct for judges, adopted by the Supreme Court in 1999. The only avenues for disciplinary action against sitting judges were Article 124 of the Indian Constitution for Supreme Court judges, Article 217 for high court judges and the Judges Inquiry Act of 1968. The latter involves a motion for impeachment and has to be sponsored by at least 100 members of the Lok Sabha or 50 members of the Rajya Sabha.
On account of this gap, an in-house procedure had been adopted for inquiry against chief justices or judges of the high court to deal with complaints, said the judgment.
It further said that because judges of superior courts occupy high positions, disciplinary actions cannot be thought of as is with the case of all other employees.
Justices Babu and Mathur said it was inappropriate for Jaising to ask for the release of the report because the panel was only formed by the then CJI to get information from peer judges about those accused, and that it was confidential and mainly for his satisfaction.
“The report was purely preliminary in nature, ad hoc and not final,” said the judgment.
It also noted that if the CJI was satisfied, then no further action was required and the proceedings could be closed. If any further action was required to be taken, the CJI could take steps he deemed fit, it said.
Lawyer Shanti Bhushan, who appeared for Jaising, referred to a committee formed by former CJI Sabyasachi Mukherjee to investigate the actions of former judge V. Ramaswami. Bhushan pointed out that the report of the committee was made public. However, Babu said it didn’t apply to the case in question.
Regarding the independent investigation into the alleged incident, he said it couldn’t be accepted because the appropriate action would be to approach the concerned authorities as listed in Article 217 of the Constitution.
Jaising’s petition was dismissed.
Pre-RTI judgment
In her tweet, Jaising said the 2003 judgment was before the Right to Information (RTI) Act, 2005, came into being and was “bad in law”.
According to the RTI Act, all citizens of India have the right to seek information from a public authority which is held by it or is under its’ control. The right extends to inspection of documents and records, extracts of certified copies of documents or records, as well as taking certified samples of material held by a public authority or under its control.
Additionally, Section 13 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 provides that the report of the Internal Committee be made available to the concerned parties.
However, the in-house committee formed to probe the allegations against CJI Gogoi did not follow either the Vishakha guidelines or the Prevention of Sexual Harassment Against Women at the Workplace Act 2013 in its proceedings.
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If the conduct of the judges from Karnataka had been found beyond reproach, the enquiry report ought to have been placed in the public domain. To satisfy all concerned, also the general public, which looks up to the judiciary, that it was a thorough, credible probe. In a sense, the RTI Act, although it marks a seminal shift in the government’s obligation to be transparent and candid, is not the major issue here. 2. A working woman has been – allegedly – sexually harassed at the workplace by a person who had overwhelming authority over her. She complains to 22 sitting apex court judges on affidavit, rendering herself liable to perjury proceedings if she is lying. Annexes a wealth of material, to facilitate a comprehensive probe. An enquiry is ordered, but not under the Vishakha guidelines, mandated by the SC itself. She walks out of the proceeding, complaining that she is not being treated with fairness. The Committee concludes that her complaint is not worth the paper on which it has been made. Does not consider her worthy enough even to be told, No, Madam, you made a false complaint, we have examined the matter thoroughly, here is a copy of our Report. We are separately proceeding against you for perjury and criminal defamation against the head of the judiciary.