Quis Custodiet Ipsos Custodes? Who will guard the guards?

Arvind Datar

The worst fortnight in the 70-year history of our Supreme Court has come to an end. The three-member Inquiry Committee has concluded that there is “no substance” in the allegations of sexual harassment made by the complainant against Chief Justice of India Ranjan Gogoi.

Citing a 2003 precedent, we are informed that the report will not be made public. A copy of the report will be given to the Chief Justice of India and the judge next in seniority (Justice Arun Mishra), but not to the complainant.

The present method of inquiry raises serious questions of procedural fairness, transparency and public confidence. Should an in-house inquiry committee against any Supreme Court judge consist of sitting judges or of retired judges? Why should a report not be made known to the public? In cases of sexual harassment, should the complainant be denied legal representation or other suitable assistance? Should the report record reasons? What is the relevance of the 2003 Indira Jaising decision?

The present article deals with each of these issues.

The events of the last few years have critically dented the prestige and moral authority of the Supreme Court. This is largely because of a total absence of any systematic in-house procedure to deal with the complaints of corruption, sexual harassment or other acts of misdemeanour.

Composition of Inquiry Committee

It is necessary that serious allegations against any sitting judge should not be inquired into by sitting judges of the same court. For example, if allegations are made against the Chairman or Managing Director of a company, it stands to reason that an inquiry should not be conducted by other directors of the same company.

Thus, any inquiry committee must be conducted either by retired or sitting judges other than those of the same court. Even in the Indira Jaising case, the inquiry into the alleged sordid events in Karnataka were probed by judges of other courts.

Confidentiality of the report

It should be made mandatory that any inquiry report must be made public. In the present case, the allegations against the Chief Justice of India were in a lengthy affidavit consisting of more than 30 annexures. These were in the public domain. In such cases, it would add to the prestige of any High Court or the Supreme Court if the report is made public so that the citizens know how these allegations were dealt with.

There is no doubt that public confidence will be better served rather by making such reports public than keeping them in a sealed cover, unless certain personal details are required to be kept confidential. Non-disclosure may generate the disturbing feeling that there is an attempt to hush up unpleasant findings or, worse, that the report does not contain any reason.

Denial of legal representation

In cases where serious allegations are made, the inquiry committee must decide whether the cause of procedural fairness will be better served by granting legal representation to the complainant and the accused. If the nature of the relationship between the complainant and the accused is such that legal representation is necessary, it should not be denied.

Need for reasons

The Registrar General of the Supreme Court has referred to the 2003 decision in Indira Jaising, which will be dealt with later in this article, for justifying not making the report public. But it is equally imperative to note several judgments of the Supreme Court that have emphasized that “reasons” must be given in any administrative or judicial order.

In Secretary and Curator, Victoria Memorial hall v. Howrah Ganatantrik Nagrik Samity (2010) 3 SCC 732, 744, it was held that,

“The hallmark of an order and exercise of judicial power by a judicial forum is to disclose reasons and giving of reasons have always been insisted upon as one of the fundamentals of sound administration of justice-delivery system, to make known that there had been proper and due application of mind to the issue before the court and also as an essential requisite of the principles of natural justice.”

In other cases, the Supreme Court has emphasized: “Reason is the heartbeat of every conclusion” … “Absence of reasons render the order indefensible/unsustainable”… “Giving of reasons is an indispensable part of the rule of law and the mandatory requirement of procedural law”… and “Reason is the very life of law”.

These lofty pronouncements should equally apply and perhaps even more so, when there is an inquiry into serious allegations of misconduct on the part of judges of the High Courts and the Supreme Court.

In a given case, numerous allegations may be made with supporting documents. Would it not be necessary for the report to consider and give reasons why all or some of the allegations are false? What was the stand or defence of a person against whom charges of misconduct were made and the reasons for accepting it?

Impact of the Indira Jaising judgment

The justification for not making the report public is the reported 2003 decision of Indira Jaising. In that case, serious allegations of sexual misconduct by sitting judges of the Karnataka High Court had been made. The inquiry committee consisted of judges from other High Courts who gave a report to the Chief Justice of India. It is unfortunate that the Supreme Court held that this report should not be made public.

It was held that the action taken by the Supreme Court in ordering an inquiry is not in exercise of powers under any law but the inquiry was for “moral and ethical reasons”. It also noted that if the complainant could substantiate any criminal offence that had been committed by the concerned judge, it is for the complainant to lodge an appropriate complaint before the appropriate forum.

The justification in the 2003 judgment is not satisfactory. The advantage of making a report public is that it will restore the confidence of the public that the proper procedure has been followed and adequate reasons have been given to arrive at a particular conclusion. It will emphasize that judges, like other citizens, are subject to the same rule of law and any act of misconduct will be looked into in a manner that will ensure that the guilty are not spared and, equally, any false complaint or false affidavit would entail criminal prosecution.

Significantly, neither this judgment nor any other states that a copy of the report should not be given to the complainant.

Quis Custodiet Ipsos Custodes?

This memorable question, first asked by the Roman poet Juvenal in the first century AD, has come to embody the philosophical question as to how power can be held to account. Therefore, it is imperative that a comprehensive in-house procedure is formulated at the earliest to deal with serious allegations in the future and bring in a certain degree of accountability.

The oft-quoted words of Lord Hewart must not be forgotten: even in an inquiry involving a judge, justice must not only be done but must be seen to be done. Sadly, at the heart of this controversy are similar basic principles that have become the bedrock of our judicial system and have been so fiercely protected by the Supreme Court and the High Courts. Even an impression that these principles are being jettisoned or compromised can seriously damage the public trust and confidence on which rests the reputation of the High Courts and the Supreme Court.

Once that is lost, everything is lost.