Is The Criticism Of In-House Procedure Justified?


         It is most hurting to see that there is a scathing criticism of the Supreme Court’s in-house procedure without understanding it properly. It is being widely propagated that the clean chit given to the incumbent CJI Ranjan Gogoi by the three-Judge in-house panel headed by second most senior Supreme Court Judge Sharad Bobde and also comprising of two women Judges – Justice Indu Malhotra and Justice Indira Banerjee is just an eyewash! Nothing can be further from the truth!

It would be pertinent to mention here that a statement issued by Supreme Court Secretary General Sanjeev Kalgaonkar said explicitly and elegantly that, “The in-house committee has submitted its report dated 5.5.2019 in accordance with the in-house procedure to the next senior-most Judge competent to receive the report and also sent a copy to the Judge concerned namely the Chief Justice of India. The in-house committee has found no substance in the allegations contained in the complaint dated April 19, 2019, of a former employee of the Supreme Court of India.” The report was submitted to third senior most Justice Arun Mishra as the second seniormost Judge – Justice NV Ramana had recused after the complainant alleged close proximity of CJI with him!

Needless to say, in a letter to the panel, the woman staffer had expressed concern on the presence of Justice NV Ramana in the panel saying that, “He is a close friend of the CJI and like afamily friend to him because of which she fears that her affidavit and evidence will receive an objective and fair hearing.” On April 25, Justice NV Ramana who enjoys a totally impeccable reputation and who is set to become the CJI after the incumbent CJI Ranjan Gogoi and Justice Sharad A Bobde opted out of the Committee with a heavy heart saying that, “His decision to recuse is only based on an intent to avoid any suspicion that this institution will not conduct itself in keeping with the highest standards of judicial propriety and wisdom.”

It must be disclosed here that the second seniormost Judge of Supreme Court – Justice Sharad A Bobde who will take over as CJI after incumbent CJI Ranjan Gogoi retires in October had set up the panel after the CJI assigned him administrative and political powers to deal with the inquiry and cases arising from the sexual harassment complaint. In writing its report, the three-Judge panel considered a large number of documents – the complainant’s 28-page affidavit sent to all Judges on April 19 complaining of alleged sexual harassment on October 11, 2018, by the CJI, her statement recorded before the panel, records of Supreme Court inquiry proceedings drawn against the complainant leading to her dismissal in December last year and her resistance to being moved from the CJI’s residence office to the Supreme Court. She was shunted out after the CJI’s Secretary complained of her inappropriate behavior on October 12. Can all this be dismissed lightly? The panel had also examined the CJI. Can anyone deny or question this also?

Be it noted, the in-house panel’s report will not be made public. This is certainly not to hide anything. It is because of the reason pointed out by Supreme Court Secretary General Sanjeev Kalgaonkar who said that, “Please take note that in the case of Indira Jaising vs Supreme Court of India & Another [2003 (5) SCC 494], it has been held that the report of a committee constituted as a part of the in-house procedure is not liable to be made public.”

Be it noted, Kalgaonkar also said that, “The in-house committee has submitted its report dated May 5, in accordance with the in-house procedure, to the next Judge competent to receive the report and also sent a copy to the Judge concerned, namely the Chief Justice of India.”

In a hard hitting statement, the former Attorney General of India and one of India’s most reputed and distinguished lawyer-cum-jurist Soli J Sorabjee writes in his enlightening editorial in ‘The Indian Express’ newspaper titled “Undue criticism” while underscoring that ‘Court’s in-house procedure, by which allegations against CJI were examined, has stood the test of time’ stating that, “It is unfortunate that some, at lavish dinner parties, are raising fingers for untenable reasons against the three Judges of the Supreme Court who gave the report, without understanding the genesis and purpose of the in-house procedure. More unfortunate is my good friend Karan Thapar’s conclusion that it is a sad day for the judiciary. Let me remind him that the in-house procedure is published on the website of the Supreme Court. It has stood the test of time. If we do not trust Judges of the Supreme Court, then God saves the country. We must put a lid upon the unfortunate controversy and save the institution, the office of the Chief Justice of India, from further damage.”

In this same editorial, Soli Sorabjee further explains stating that, “The “in-house procedure” is in reality a peer review wherein the sitting Judges will examine the complaint to find out if it has any substance. This envisages an informal procedure of examining the complainant and also the material which may be produced by the complainant. The objective of the “in-house procedure” is to preserve the independence of the judiciary by having the allegations against the concerned Judge examined in the first instance by his peers, and not by an outside agency. The nature of inquiry is fact-finding, where the Judge would have his say. It is settled law that the inquiry would not be a formal judicial inquiry. It would not involve the examination and cross-examination of witnesses. The committee can devise its own procedure content with the principles of natural justice. If the allegations are found to be substantial, then further steps will be taken as provided in the Constitution. Otherwise, the matter is closed. Reports of the Peer Committee are not made public, and are to be kept confidential, as laid down by the Supreme Court in Indira Jaising’s case (2003) 5 SCC 494.”

While continuing in the same vein, Sorabjee in this same enlightening editorial further goes on to say that, “In the present case, the Chief Justice authorised the next senior-most judge, Hon’ble Justice SA Bobde, to decide on the steps to be taken in the matter. Accordingly, a committee of three Judges was constituted to look into the matter. The committee comprised the senior most puisne Judge of the Supreme Court (Hon’ble Mr Justice SA Bobde) and two women Judges (Hon’ble Ms Justice Indu Malhotra and Hon’ble Ms Justice Indira Banerjee). The committee duly followed the established in-house procedure, which has existed for the last 20 years, and multiple inquiries have been held under it. The in-house procedure expressly states that no lawyers shall be permitted to participate and contemplates only sitting Judges to be members of the inquiry committee. The committee, therefore, did not accede to the request of the complainant for a lawyer. The complainant appeared and was examined on three separate dates. She was permitted to produce documents and also examine documents. Thereafter, she chose to walk out and withdraw from the proceedings. Therefore, the committee was entitled in law to proceed further in the matter and complete the inquiry. In the present case, the report of the committee was submitted to the next senior-most Judge competent to deal with the matter, Justice SA Bobde.”

It must be reiterated here that Soli J Sorabjee has practiced in Supreme Court for more than 50 years and many top lawyers like the highest paid lawyer in India – Harish Salve who is also the former Solicitor General and many others have all grown up under his supervision and able guidance. What he says cannot be lightly dismissed by even former CJI and any jurist under any circumstances! Even Judges and CJI listen in silence when he speaks!

No doubt, Sorabjee also rightly points out in the same editorial that, “To recapitulate, in the current case, the Peer Committee examined the complainant who, then, chose to walk out. Thereafter, the Chief Justice of India was examined. The committee examined the relevant material produced by either side and thereafter gave a report holding that the complaint was bereft of substance.” How can all this be lightly dismissed? Those who are casting aspersions on it are directly questioning the Supreme Court which cannot be justified under any circumstances!

Now regarding the controversy, Sorabjee points out that, “Controversy has arisen about the “secretive” manner in which the Peer Committee performed its functions. The criticism is as follows: The Peer Committee did not allow assistance of a lawyer to the complainant; the report has not been given to the complainant, while it has been given to the Chief Justice of India; the report has not been made public; outsiders should have been associated with the Peer Committee. In my opinion, the above criticism is untenable. The in-house committee procedure evolved by the Supreme Court in 1999 was followed. The objective is not to protect or absolve any Judge of misconduct but to preserve the independence of the judiciary and to ensure fearless discharge of duties by Judges. For the same reason, the Peer Committee must comprise only sitting Judges. Peers cannot include retired Judges, lawyers, politicians or even academics.”

Right at the outset, Soli Sorabjee points out that, “JUDGES IN INDIA perform important functions. The losing party, not unexpectedly nurses a grudge against the Judge who has decided the case against him or her and at time labours under the mis-impression that the Judge is corrupt. Apparently, a Judge needs to be protected from the displeasure and wrath of the losing party. The Judges Inquiry Act, 1968, has been enacted for that purpose and for the same reason an “in-house procedure” has been evolved by the Supreme Court of India.”

Will critics now question Sorabjee also who is respected all over the world for his immense experience and knowledge? Have a heart! Have some respect not for me but at least for Sorabjee whom even Fali Nariman and other eminent jurists like the late Nani Palkhiwala always admired!

At least learn to respect the likes of Soli J Sorabjee whose whole life is an inspiration for others to follow! Bar Council of India Chairman Manan Mishra, Arun Jaitley and Harish Salve and many others all agree with him completely! There is no reason why any sane person will disagree with him! India is fortunate to have a CJI like Ranjan Gogoi who never comes under pressure and has compelled all the high courts to fill up the Judges vacancies lying vacant since last many years and has also ensured that senior lawyers are not given out of turn hearings except when there is strong compelling ground! Justice Sharad A Bobde, Justice Indu Malhotra and Justice Indira Banerjee are all independent and fearless Judges known always for their impartial and impeccable judgments but critics are not sparing them also and very conveniently ignoring that they are not subordinate to CJI in any manner and the CJI is only “first among equals”! Justice Sharad A Bobde will become CJI after the incumbent CJI Ranjan Gogoi retires on October 17, 2019! Why will he fear anyone? Critics are only mocking at themselves when they question such experienced and learned Judges of the top court that is Supreme Court! I really pity their ignorance! They deserve pity!

Sanjeev Sirohi,

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