Finally the thunderbolt fell to the ground with deafening sound. People are still trying to understand whatever has happened. There is a committee of learned judges and they declared the allegations false. The report of the committee, however crucial, cannot be revealed even to the complainant, if not to the public. Right to information is not absolute.
The real question is not revelation of the report. The question is whether there is place for the in-house committee in this case. Impeachment is the only way provided under the constitution to remove an undesirable judge. But it is a laborious process and often fails because of involvement of politicians in it. The offence may not be so serious as to justify impeachment. Nevertheless, some action has to be taken against the errant judge. The concept of in-house was invented in the Conference of Chief Justices in 1999 as a means to deal with such cases. It was decided that the Chief Justice of the Supreme Court should be the proper person to decide the action. And it should not be arbitrary. To help him, a committee has to be constituted to investigate and report to him based on which the chief justice of the Supreme Court would decide on the action to be taken. That committee is called the in-house committee as it deals only with matters related to judges. At the most, advocates and other members of the legal profession may be involved. So it is in-house affair. The Chief Justice can also ignore the report of the committee and take his own decision which would be final. Having consented to the process the members of the profession cannot afford to question the decision. The net result is an intermediary is created giving extraconstitutional rights to the Chief Justice. It is but natural that those rights are used at his discretion.
When a list of allegations against the Hon’ble Chief Justice himself was received from a dismissed employee of the office of the court, the entire system was aghast and upset. From top to bottom everybody tried to condemn the complainant and started seeing a wild plot in it to damage the institution and its reputation. They have gone to the extent of inventing a coterie of “Rich and Powerful” behind the plot as if they are the socialists. Whenever such allegations are received, as a court of law, it is the primary duty to start judicial process to ascertain the veracity of the allegations. But attention is paid more to find out the illusory coterie. Fortunately the retired justice entrusted with that responsibility suggested that it comes only after the truth or otherwise of the allegations is proved. As a parallel step an in-house committee was constituted to investigate matter.
The purpose and area of operation of the in-house committee is specific. It has to find facts and report to the Chief Justice. Even when the Chief Justice happens to be the alleged person the rules apply mutatis mutandis. Moreover, to complicate matters the committee is reported to have stated to the complainant that what they are doing is “not in-house proceedings, nor Visakha committee proceedings, but only an informal proceedings.” Informal? The committee constituted with three of the justices of the Supreme Court resorts to informal proceedings! It is a committee as designated by themselves. It is not a bench of the court formed to try any case. As a committee it has no judicial character. They can verify facts from within the house. They could ascertain what has happened during the course of the employment of the complainant until she was dismissed. Many things happened after her dismissal as stated by her in the allegations. Obviously, the committee had no means to verify all those facts. They called for the complainant to answer their questions. But she felt unsafe before the committee and recused herself. The committee did not call for any other witness. They are reported to have consulted the chief justice himself, with what result we do not know. Finally they had the audacity to declare that there is no truth in the allegations against the chief justice. They stopped short of making any allegations against the complainant.
The possibility is that a person who is a judge need not be judicious always in whatever he is doing. His decisions need not be (perhaps cannot be) judicious in every respect. But when he is sitting on the bench hearing the arguments of both the parties to a dispute, he is expected to be judicious. As members of an in-house committee they are not expected to act as judges. They are inquiring agents on behalf of the final authority. When it is designated as an in-house committee their functions are demarcated for that purpose. They did that duty in right earnest. According to the rules of the in-house committee they have to report to the final authority, ie, the chief justice. But in this case the chief justice happens to be the alleged person. In spite of it they found it proper to submit the report to him. In such a case, justice demands that a copy shall be also given to the complainant. But they did not oblige. If the report was not given to the alleged person the complainant would not have asked for it. If the committee did not come out with a decision that there is no substance in the allegations, there would not have been any demand from the public also for the report. But in my opinion, the report of the committee has no relevance to the case. It is the product of an illegitimate relationship between the various parts of the ‘house.’
In refusing to reveal the report the committee referred to the case of Indira Jaisingh Vs. Supreme Court. In the same case it was stated that “if the petitioner can substantiate that any criminal offence has been committed by any of the judges mentioned in the petition, appropriate complaint can be lodged before a competent authority.” It shows that the complainant, if she wants, can file a case, get a FIR registered and proceed on legal lines. The doors are not closed just because the in-house committee has given an opinion. Their opinion is not a judgment of the Supreme Court. It does not preclude the legal process in other courts according to law. But the difficulty is that a court cannot proceed to investigate into the complaints against a judge without consent of the Chief justice. Unfortunately in this case the very complaint is against the chief justice himself. But it cannot be presumed the Hon’ble chief justice would refuse to give the approval as he is confident from the beginning that the allegations are false and it is reinforced by the in-house committee after inquiry. It may be argued that the reputation of the judiciary itself would be adversely affected if an open investigation is allowed. That would be a self-serving and deceptive argument. The reputation of the institution would be enhanced if it is allowed to face the allegations openly and truth established and justice done. Equating the individual, even the one at the top, with the institution itself is a very dangerous concept. The institution is there even before the individual entered it and it will remain so even after he exits.
It is being suggested that the complainant has submitted herself to the jurisdiction of the Supreme Court as she submitted the affidavit to all the judges of the court and also agreed to appear before the in-house committee. In whatever court the case is to be tried, it is subject to jurisdiction of the Supreme Court finally. By submitting the complaint to all the judges she felt the judicial process would be carried on expeditiously. But the court tried to avoid judicial process and resorted to in-house process. Now the judicial process has to start in the case. Where and when it starts we have to wait and see.
When the man at the top of the institution is tainted and insists on perpetuating himself, it is not difficult to find flatterers gathering around him. But the colour starts flowing down tainting everybody involved in the process. Donald Trump is an example. There have been many aberrations in his statements and behavior during election campaign and in office as President. Many of them were subjected to inquiry by the special counsel Robert Mueller. A few were prosecuted and sentenced. Some were appointed to cabinet and other posts at senior levels. They were forced to quit the posts with tainted reputation. Let us hope India will not supply another example of this phenomenon.