I request the Supreme Court to make public the report of its committee that probed the complaint of sexual harassment against Chief Justice of India Ranjan Gogoi. It would be only fair and reasonable.

We do not know what the truth is. All law and procedure is intended only to find the truth. If the chief justice is innocent, he should not be embarrassed. At the same time, if the complainant has concerns about the inquiry, the institution has the duty to assure her of the integrity of the process.

The judiciary is a credible pillar of India’s constitutional democracy because of its openness; evidence isn’t taken behind the back of an accused or a complainant and even judgements are pronounced in open court. How then can a committee of judges, after judging a fellow judge, deny the judgement to the complainant?

The committee cleared the chief justice of sexual harassment allegations levelled by a former employee claiming there was “no substance” in the complaint. The complainant claimed she was denied the panel’s report and has no hope of getting it, to seek a review or file an appeal. As per the principles of inquiry, criminal justice and the Prevention of Sexual Harassment Act, and under the Right to Information Act, she is entitled to get a copy of the report.

Questions have already been raised about whether the principles of natural justice were followed in this matter, but there are also many problems from the Right to Information perspective. The first problem is the decision to treat the committee’s report as confidential. According to the chief justice and other dignitaries, there is “larger conspiracy” behind the allegations. If that is the case, then it’s a matter of public interest. Hence, the report should be made public after redacting the details that need not be disclosed.

Citing Indira Jaising v Supreme Court of India, the committee declared that its report constituted in-house procedure, hence it was not liable to be made public. This 2003 judgement predates the RTI era. It related to the publication of a “report by committee of judges in respect of alleged involvement of sitting judges of the High Court of Karnataka in certain incidents”, popularly known as the Mysore incident. The chief justice at the time decided not to publish the report on the following grounds:

  1. Since the chief justice only wanted to seek information from peer judges of the accused, the report was confidential.
  2. It was purely preliminary in nature, ad hoc and not final.
  3. The Supreme Court, much less the chief justice, did not have any disciplinary control over High Court judges.
  4. The only source of authority the chief justice had to order an inquiry was moral or ethical.
  5. The exercise of such moral authority by the chief justice could not be made the subject matter of a writ petition to disclose the report made to him.

None of these points apply to the complaint of sexual harassment against Gogoi, for the following reasons:

  1. The Chief Justice of India was not seeking the views of peer judges. A committee of three judges was set up to probe the allegations against the chief justice. It is not known whether it was prescribed and informed that the committee’s report would be kept under wraps. Is it an official secret or are there any other grounds for categorising it as confidential?
  2. Though claimed to have been an informal process, the probe was conducted like a formal inquiry. Hence, the procedure followed and detailed reasoning for the conclusion should be made public. People have the right to know what is in the report. Minute details of the sexual harassment incident can be redacted if needed.
  3. Neither the Supreme Court nor the chief justice have disciplinary control over other judges. Similarly, the subordinate judges who formed the committee have no control over the chief justice. In that case, why was the inquiry conducted?
  4. The probe in the Karnataka case was not based on a complaint by an aggrieved woman. This case is based on a specific complaint by a former court staffer.
  5. If moral authority of the judges is cited to deny the complainant a copy of the report, the same authority could be invoked to provide the report.

Lack of transparency

In the Indira Jaising judgement, the bench of Justices Rajendra Babu and GP Mathur referred to the Freedom of Information Act, 2002, saying “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”.

The conclusions are not relevant to the current case, which is entirely different.

The RTI Act of 2005 repealed the Freedom of Information Act and laid down an exception that “information that would impede the process of investigation or apprehension or prosecution of offenders” need not be disclosed, unless public interest overrides the interest in protecting that information. This exception cannot be invoked in this case because the inquiry has already been completed and the report submitted. The publication of the report, under no stretch of the imagination, can impede investigation or apprehension or prosecution in this case.

Section 16 of the Sexual Harassment of Women at Workplace Act, 2013, prohibits the publication of the complaint and inquiry proceedings. It overrides the RTI Act. It provides that identities and addresses of the aggrieved woman and the respondent witnesses as well as the internal committee’s recommendations and the action taken by the employer shall not be published, communicated or made known to the public, press and media in any manner.

This does not prohibit the disclosure of the Supreme Court committee’s report. Interpreting Section 16 to include “report” is not possible since Parliament, while discussing other details meticulously, deliberately omitted the word “report”. The objective of the prohibition on the media in this provision is to prevent undue stigmatisation of the aggrieved woman. The report can be disclosed without the name and details of the complainant.

When a judgement in a rape case can be made public without disclosing name of the victim but with details about the examination of witnesses, withholding the report of an internal inquiry committee appears to have no legal basis.

Particularly when the committee is convinced there is no substance in the allegations, it has a duty to provide reasons for its conclusion and convince the public about its correctness. Section 16 prevents the media from publishing the contents of a sexual harassment complaint but the former court staffer’s complaint is already publicly available and has been extensively reported in the media.

When the RTI Act specifically overrides all other laws, including the Official Secrets Act of 1923, as far as disclosure is concerned, having counter-overriding provision like Section 16 is contradictory. Its legality has not been challenged so far. It is the moral and legal duty of the Supreme Court committee to inform the people about the lack of substance in the allegations against the chief justice. It might help strengthen the credibility of the institution and the belief that India’s judiciary is not only independent but also accountable.

When Justice V Ramaswmay, former judge of the Supreme Court, faced impeachment proceedings for alleged “misconduct”, a committee of the apex court conducted an inquiry. Chief Justice Sabyasachi Mukherjee did not keep the committee’s report under wraps. The petitioner’s counsel in the Indira Jaising case, Shanti Bhushan, referred to the disclosure of this report. But in Indira Jaising, the court found no parallel or analogy between the Mysore incident and the Ramaswamy episode. Similarly, the Mysore incident report is totally different from the present report about a sexual harassment complaint.

Question of propriety

Several questions of legality and propriety have been raised regarding this matter. Was this an in-house inquiry into misconduct by a judge under the Supreme Court’s own powers or an inquiry under the Prevention of Sexual Harassment Act? The court has a duty to inform the complainant and the public what process was adopted, which law was followed, whether principles of natural justice were adhered to, whether there is any provision for the complainant to file an appeal or seek a review of the committee’s decision, and if so where and how, whether she will get an opportunity to cross-examine the witnesses of the respondent, whether witnesses who are subordinate staff members of the apex court have deposed, and if so what have they deposed.

Moreover, the Supreme Court as an institution, while exercising its administrative functions, has a duty to inform the public what its policy in such cases is, how it deals with cases where the complainant walks out of the inquiry, how appeals or review is provided, why the report cannot be disclosed.

Section 4(1)(c) of RTI Act states: “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) lays down the court must provide reasons for its administrative or quasi-judicial decisions to the affected person. This decision of the Supreme Court affects all persons since no aggrieved woman could get a fair process now if she complains against judges of the constitutional courts.

What was the Supreme Court’s response to a purported letter written by Justice D Chandrachud saying the credibility of the court would suffer if the inquiry proceeded in the absence of the complainant and suggesting she be provided with a lawyer? Did the court even receive the letter?

Is legal remedy or justice dependent on the status of the respondent (the chief justice) or that of the complainant (a former junior court assistant)? Had the respondent been an ordinary public servant, the complainant would have had many procedural rights and remedies available to her under the Prevention of Sexual Harassment Act, ranging from appeals within her department to approaching a high court or the Supreme Court. Had this kind of an inquiry happened in any non-judicial department, the Supreme Court might have struck down the report as illegal, unreasonable, against the principles of natural justice and hence violative of the woman’s rights.

It must surely be within the Supreme Court’s knowledge that
R vs Sussex Justices, ex parte McCarthy is famous for 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 to have received an instant judgement within 16 days, which might be a record. But she does not know if it is final. She should be happy that justice delayed could be justice denied and should not complain that justice hurried might mean justice buried.

M Sridhar Acharyulu is a former Central Information Commissioner and a professor at Bennett University, Uttar Pradesh.

Also read: Clean chit to CJI Gogoi makes it clear Supreme Court judges believe they are above the law

The Daily Fix: By dismissing charges against Gogoi, SC sets dismal precedent on sexual harassment