Why the Inquiry Into Complaint Against CJI is Mired in Controversy

Here’s why the complainant opted out of the in-house inquiry into allegations against CJI Gogoi & what happens next

Three hearings in, the woman who has alleged sexual harassment and intimidation by Chief Justice of India Ranjan Gogoi, has decided to no longer participate in the proceedings of the in-house committee looking into her complaint.

There will no doubt be those who will criticise her for this decision, maybe even claim that this shows the allegations were dubious to begin with.

However, after everything which has happened since the allegations were made public – from the inexplicable hearing conducted by the CJI himself on 20 April where he alleged they were part of a conspiracy against him, to the initiation of an investigation into conspiracy claims before an inquiry into her claims, to the proceedings before the in-house committee where she hasn’t been allowed a lawyer – is her decision really unjustified?

In her statement to the press, the complainant has given four reasons for why she lost faith in the proceedings and has decided to withdraw from the proceedings of the in-house committee:

1. She wasn’t allowed a lawyer/support person to attend the hearings with her despite a hearing impairment, and her “nervousness and fear” (which she had intimated to the committee multiple times).
2. There was no video or audio recording of the committee’s proceedings.
3. She was not provided a copy of the statements she recorded before the committee even at the first two hearings on 26 and 29 April 2019. As she had some difficulty following the proceedings, she wasn’t sure what exactly had been recorded as her statements.
4. She was not informed about the procedure the committee was following.

In the statement, she also claims that the committee – comprised of Justices SA Bobde, Indira Banerjee and Indu Malhotra – repeatedly asked her why she “made this complaint of sexual harassment so late.” She has said that she found the atmosphere of the committee frightening and that she was nervous because she was being “confronted and questioned by three Supreme Court Judges,” which was one of the reasons she kept asking to be allowed to bring her lawyer with her.

But are these objections justified? Have the judges deviated from the rulebook? And what what happens now?

Too caught up to read the whole story? Listen to a discussion of these questions on the Big Story podcast instead:

Should the Complainant Have Been Allowed to Bring her Lawyer?

There are two ways to look at this question. A formal, rule-bound approach, or one predicated on equity and fairness.

Going by the first approach, the committee was under no obligation to allow the complainant to bring a lawyer to the proceedings. As per the Supreme Court’s In-House Procedure from 1999, an in-house committee set up to inquire into allegations of misconduct by judges are entitled to formulate its own rules of procedure.

When the committee was formed by Justice Bobde on 23 April after authorisation from the ‘full court’ of the SC, he had expressly clarified that:

“This is going to be an in-house procedure which does not contemplate representation of advocate on behalf of parties. It is not a formal judicial proceeding.”

Even if we go by the rules normally followed for internal complaints committees under the Sexual Harassment of Women at Workplace Act 2013, a complainant is not allowed to “bring in any legal practitioner to represent them in their case at any stage of the proceedings.” [See Rule 7(6) of the relevant rules here.]

However, since the committee did in fact have the power to devise its own rules of procedure, it could easily have decided to allow the complainant to bring a lawyer to assist her.

This certainly seems to be a reasonable request, given the difference in stature between the complainant and CJI Gogoi, not to mention the fact that the three judges on the committee are, to use a term used by CJI Gogoi and the other judges who held that press conference in January 2018, ‘junior’ to the CJI.

Even in normal circumstances, it would be intimidating for someone to face questioning from a panel of Supreme Court judges. When you have worked for judges as a junior court assistant, that dynamic becomes even more skewed. Throw in her hearing impediment (which she specifically pointed out in her response to the committee before hearings began), and it makes the request even more reasonable.

In English administrative law (which is the basis for much of Indian administrative law), these could have been legal grounds for allowing representation by counsel, though unfortunately those wouldn’t apply in India.

The Supreme Court in its normal functions is given a wide range of powers to pass orders in the interests of justice. While this was not a judicial proceeding, the committee could have easily chosen to allow her to at least have someone present to support her and assist her during the proceedings. Why it chose this narrow, legalistic approach rather than a fair, equitable one, is unclear.

Should the Court Have Recorded the Proceedings?

There is no requirement under law to make audio or video recordings of the proceedings in inquiries like this.

While it is understandable that the complainant wanted these to be in place to avoid intimidation and to ensure that there was incontrovertible proof of her statements, this was not something the judges were required to do, even in the interests of fairness.

Should the Court Have Provided the Complainant With a Copy of Her Statement?

Again, the judges could justify their failure to provide the complainant with the copies of her statement as recorded on 26 and 29 April by pointing out that they are allowed to make up their own rules of procedure. However, this would again be extremely unfair and unreasonable as it is standard practice to record the statements and at least read them back to the person making them in departmental proceedings.

Moreover, any administrative proceeding has to comply with the principles of natural justice, which include the right to be heard (‘audi alterem partem’). Knowing what’s being recorded in her statement is a reasonable corollary of that, and again assumes importance since she has a hearing impediment and wasn’t entirely sure what was being said at some points.

This means that the failure to provide a copy of what had been recorded till then wasn’t just a question of fairness – this could reasonably be construed as a legal requirement for the committee.

Should the Committee Have Informed the Claimant About the Procedure it was Following?

Again, the committee could try to say they were under no obligation to explain their procedure to the complainant. However, as with the copies of the statement, informing the parties to an inquiry, of the procedure being followed is very much par for the course.

This wouldn’t be the case just for the complainant, but for CJI Gogoi as well – it will be difficult for him to present his own defence if he is unaware of the procedure, including the ability to submit evidence and cross-examine witnesses.

Once again, the right to be heard would be affected by the failure to provide this information, and so it is difficult to see how the court could justify failing to provide this at the outset.

Will the Committee Continue its Inquiry?

On 30 April, the complainant submitted a letter to the judges stating that it would not be possible for her to participate in the proceedings if she was not allowed the presence of her lawyer/support person. The committee not only refused the request, but also told her that if she didn’t participate, the committee would continue ex parte.

Ex parte proceedings – ie proceedings where one or more parties are not present – are not prohibited in such inquiries, provided the parties have been given notice of the proceedings. Even complaints committees under the Sexual Harassment of Women at Workplace Act 2013 can conduct ex parte proceedings if a party fails to turn up for three hearings, despite being given notice of the same.

This means that the Justice Bobde-led committee is likely to continue its inquiry based on the complainant’s affidavit and supporting information provided thus far, as well as any statement/evidence provided by CJI Gogoi. This would not be illegal or improper, though it would certainly not help the sense that the judges haven’t been fair.

Why Isn’t the Supreme Court’s ICC Conducting the Inquiry?

One query which has been asked a number of times is why this inquiry is not taking place under the Sexual Harassment of Women at Workplace Act 2013 and the Internal Complaints Committee established under that.

The reason for this is that the apex court’s Gender Sensitisation and Internal Complaints Committee (GSICC), which was set up in 2013, does not appear to have the power to look into complaints against sitting or retired judges of the Supreme Court.

This was something the court was warned about way back in 2014, but was not corrected. The CJI retains authority over the GSICC and is the person who has to enforce its decisions, which makes it even more difficult for it to act against him/her.

Does the Complainant Have any Other Courses of Action?

There are basically three alternatives that the complainant can pursue in this case.

1. She could file a criminal complaint, look to get the CJI prosecuted in the criminal courts.
2. She could file a writ petition in the Delhi High Court or the Supreme Court asking for an inquiry to be conducted by a special committee of retired judges of the Supreme Court.
3. She could file a complaint before the relevant Local Complaints Committee under the Sexual Harassment of Women at Workplace Act 2013.

However, all these options run into the same obstacle: the office of the Chief Justice of India.

Any criminal investigation into a public servant requires sanction from an appropriate authority under Section 197 of the Code of Criminal Procedure. While you could argue that this means that sanction for investigation of a CJI can be provided by the President of India, a Constitution Bench of the Supreme Court held in 1991 in the Veeraswami case that an FIR can only be registered against judges of the high courts or Supreme Court after getting the approval of – you guessed it – the CJI.

The complainant could address a petition to President Ram Nath Kovind saying the CJI cannot be required to approve registration of an FIR against himself, and so the President alone has authority, but it is unclear if this argument would be accepted. She could also request the full court to approve the registration of the FIR, or for Justice Bobde as the most senior judge of the court to do so, but given the current in-house committee was approved by the full court and Justice Bobde is on it, this would seem unlikely to succeed.

A writ petition before the high courts could lead to an investigation but not only are all the judges of the high courts subordinate to the CJI, any investigation ordered would need to take place in accordance with the 1999 In-House Procedure, which places decision-making authority with the CJI again.

A writ petition before the Supreme Court would need to be assigned by the CJI to another bench, and would again need to be conducted as per the In-House Procedure.

The Local Complaints Committee could technically hear the matter, but as it’s made up of officers far lower in the hierarchy than the CJI, it is difficult to see how much power such a committee could have.

Although the complainant had justifiable reasons to opt out of the inquiry, the other options available are legal dead-ends. Hence this move seems ill-advised as by not being party to the proceedings, there is now no way for her to reach a compromise of any kind with the in-house committee in this hearing.