Can Panel report be given to Complainant?: Allegations against CJI: A series on Legal and Factual rationality [Read Part-2]

May 8, 2019:

Preface:

We have already covered Part-1 of this series wherein we talked about the legality of claim for representation by lawyer. That story can be read here.

Part-2: Publication of Report:

In the present Part-2, we will talk about the requirement of giving copy of report to the woman complainant and will try to ascertain if the law provides so or not.

Attempt by certain section:

There is certain section of media which is hell bent upon to show one sided picture all the time and appears to have been trying to make an influence on the general public by creating melodramatic scenario without actually talking about the law or by saying that the law itself is not valid or constitutional.

Press release of Secretary General:

Press release of Secretary General of the Supreme Court shows that the Panel did not find any substance in the allegations made by the woman complainant. It also shows that report cannot be made public since it has been prohibited by a judicial verdict rendered in Indira Jaising vs Registrar General, Supreme Court (2003) 5 SCC 494.

The Judgment of the year 2003:

In the said case, Indira Jaising had filed a petition purporting to be one under Article 32 of the Constitution of India in public interest primarily for the publication of the inquiry report made by a Committee consisting of two Chief Justices and a Judge of different High Courts in respect of certain allegations of alleged involvement of sitting Judges of the High Court of Karnataka in certain incidents. Request for publication of report was declined by the Supreme Court on judicial side.

The Supreme Court observed in that case as "No other disciplinary inquiry is envisaged or contemplated either under the Constitution or under the Act. On account of this lacuna In-House procedure has been adopted for inquiry to be made by the peers of Judges for report to the Hon'ble the Chief Justice of India in case of a complaint against the Chief Justices or Judges of the High Court in order to find out truth of the imputation made in the complaint and that In-House inquiry is for the purpose of his own information and satisfaction. A report made on such inquiry if given publicity will only lead to more harm than good to the institution as Judges would prefer to face inquiry leading to impeachment".

The Supreme Court commented "It is not appropriate for the petitioner to approach this Court for the relief or direction for release of the Report, for what the Chief Justice of India has done is only to get information from peer Judges of those who are accused and the report made to the Chief Justice of India is wholly confidential. The said report is only for the purpose of satisfaction of the Chief Justice of India that such a report has been made".

The Supreme Court then held "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 principles stated in the above decisions are in different context and those principles cannot be invoked in a case of this nature, which is of exceptional category. Therefore, the first contention advanced on behalf of the petitioner by Shri Shanti Bhushan for a direction to release the said Report has got to be rejected in limine".

From the above, it appears that a report of such constituted committee is a confidential document and is an opinion of peer judges and the report cannot be disclosed.

Right to Information Act:

What is now being raised as an issue in certain section of media is that the decision pertains to the year 2003 whereas Right to Information Act subsequently came into existence in the year 2005 and therefore in terms of that Act, copy of report should be made public or atleast should be given to the woman complainant.

Unfortunately for such section of media, the judgment passed in the year 2003 was never overruled by the judicial side of the Supreme Court and therefore in terms of Article-141 of the Constitution of India, the judgment is binding and has to be followed by all including the Secretary General of the Supreme Court itself. In such circumstances, if the Secretary General contravenes the said judgment and discloses the Panel Report, he may become liable for a contempt of court action.

We can now try to ascertain if the RTI Act has changed the position.

It is not as if there was no law related to disclosure of information. A law called "Freedom of Information Act" was in existence at the time when the aforesaid judgment was passed. This Act was dealt with by the Supreme Court in the aforesaid judgment wherein it had observed "Even the Freedom of Information Act, 2002, to which also reference has been made by the learned counsel of the petitioner, 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".

How then one can say that the judgment being of pre-RTI era is not a good precedent or should not be followed is not clear. Naturally, unless a judgment is overruled, the same has to be followed.

Apart from the above, even RTI Act prohibits disclosure of certain kind of information as provided in Section-8. Some of them are relevant for the present purpose.

Section-8(1)(b): “information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court”.

Section-8(1)(e): “information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information”.

The aforesaid shows that RTI Act has basically changed nothing so far as the judgment passed by the Supreme Court in Indira Jaising vs Registrar General, Supreme Court is concerned. It is therefore clear that if despite the existence of the said judgment, Secretary General discloses the Report to media or to the woman complainant; he may be liable for contempt.

Claim for report under POSH Act:

Now we can see if there is any other law under which the Panel Report can be made public or can be given to the woman complainant. A certain section of media is projecting that in terms of Section-13 of the POSH Act, the woman complainant has a right to receive a copy of the report.

Before invoking Section-13 of POSH Act, we have to see if the said Act is applicable to the present situation or not. A reading of the Act will show that the POSH Act is not even applicable to the judges of the constitutional courts. However, we will cover this specific issue in some other part of the present series.

It would be presently sufficient to look into the fact as to whether the woman complainant had filed the complaint under the POSH Act or not.

Section-9 of the Act to some extent reads as "Any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident".

Now, as per media reports, the alleged incident occurred in the month of October 2018 and the woman complainant send the complaint in the month of April 2019 after 6 months from the date of alleged incident. This clearly shows that the complaint could not be entertained as it was filed much after the prescribed period of 3 months. At this juncture someone may say that the proviso to Section-9 contemplates condonation of delay. However, there is no claim by the woman complainant that she had applied for condonation of delay by citing sufficient reasons as required by the said proviso itself or that any Committee ever has stated to have condoned the delay or to have entertained the complaint under the POSH Act.

Clearly, the woman complainant was not using the POSH Act for redressal of her grievance else she would have filed the complaint within 3 months prescribed period.

If the woman complainant was not using the POSH Act, Section-13 of the Act shall have no applicability at all and therefore no right inhers in the woman complainant to claim a copy of Panel Report.

Copy of Report given to alleged judge(CJI):

Certain section in the media mischievously tried to show that it would be unheard in a fair system that a copy of Panel Report is provided to the alleged culprit (in this case the CJI) but is not provided to the victim. Unfortunately, none care about the law on this score neither they tried to show as to under which law woman complainant would get a copy nor they tried to search as to whether there is any procedure in existence which says that the alleged judge shall receive a copy of the report.

It is now not uncertain that the three judges committee was basically working under the In-House Procedure adopted by the Full Court in the Supreme Court in the year 1999. Initially, the procedure was formulated by a five judges committee and lateron it was adopted by the Full Court. However, the Full Court did not adopt the procedure as it is but had made certain very specific changes. One particular change made by the Full Court reads as "A Copy of the Report shall be furnished to the Judge concerned by the Committee". (for the sake of clarity, it is noted that the amended version is available on the last page of published In-House Procedure).

Clearly, while following the In-House Procedure, the three judges panel was obliged to provide a copy to the judge concerned. Thus it appears that certain section in the media without exactly looking into the available procedure went on to project that by giving a copy of report to alleged judge and denying copy to victim, the system has created a dark chapter for the history. This obviously is not the case as can be seen above through the In-House Procedure.

Whether copy can be provided to complainant under In-House Procedure:

The In-House Procedure however does not have any similar provision for a complainant. In such circumstances, the copy of report could not have been provided to the woman complainant.

Status of In-House Procedure:

The In-House Procedure was adopted by the Full Court in the Supreme Court in the year 1999 on moral grounds; else the grievance of any general public having sufficient evidence can approach the parliament only.  The procedure so adopted can be changed by the Full Court by a any subsequent deliberation but until then one has to follow the procedure as existing and cannot deviate therefrom, not even the Secretary General or the constituted committee.

The result:

We have already seen that there is no other mode under which a copy of report can be provided to the woman complainant. Even the In-House Procedure does not contemplate the providing of copy of report to the complainant or disclosing it to the media.

The matter regarding publication of report or giving a copy to woman complainant or about questioning the rationale of giving a copy to alleged judge ends here. We will cover other issues pertaining to the present episode in other parts of our series related to Legal and Factual rationality.

*********************

Read a copy of In-House Procedure here:

Read the POSH Act here:

Read the judgment here:

Picture Source :