Independence of judiciary has been a hallmark of our constitution. The Hon’ble Supreme Court many a times has ruled that a judge should be given an atmosphere in which he can dispense the justice fearlessly and without any intimidation, to uphold the dignity of law. It is not merely of some importance but is of fundamental importance that Justice should not only be done but should manifestly and undoubtedly seem to be done.
The nature of judicial function involves the performance of difficult and at times unpleasant tasks. I would like to quote the words of Justice Sanjeev Khanna, which he stated in his farewell speech, in full court reference that “sometimes there is no office as powerful as the judge and at the same time it is frightful and defenseless”.
The Chief Justice of India, at present, despite having all the qualities of a righteous judge is feeling defenseless and is facing unnecessary criticism, which is even reflected in an interview of Justice AP Shah, Former Chief Justice of High Court of Delhi, published in The Indian Express dated May 7, 2019. Justice Shah may have his own notions but certainly as a former judge, he would agree that institutions always function on certain basic rules and procedure.
In the event of any unpleasant situation, being faced by the institution or by a responsible person of that institution warranting set up of an inquiry, the Inquiry must be conducted within the four corners of the established and recognized rules.
Nevertheless, it is a fact that in-house inquiry, which looked into the allegations of a former Supreme Court employee comprised of the senior-most Judge of the Hon’ble Supreme Court of India after the Chief Justice, and two women judges namely Ms Justice Indira Banerjee and Ms Justice Indu Malhotra.
Any practicing lawyer who has appeared before Ms. Justice Indira Banerjee, will vouch for her impartiality, patience and integrity. All who have appeared in her court would agree that nobody in her court was condemned unheard. The same applies for the other Hon’ble Judge Ms. Justice Indu Malhotra. She was a leading practitioner in the Hon’ble Supreme Court of India and was designated as a Senior Advocate from the Supreme Court, which is a rare achievement for any Advocate. She also left her flourishing practice for serving the society, by accepting to be a judge of the Hon’ble Supreme Court of India. The third member, Justice Bobde is in line to be the next Chief Justice of India and is known to be a strong and independent judge with unimpeachable integrity and merit.
Unfortunately, the former Supreme Court employee did not even spare the Hon’ble Judges of the above caliber, heaping reckless and unwarranted allegations against them in a manner similar to the allegations that were thrown on Hon’ble Mr. Justice N.V. Ramana, forcing him to recuse himself from the panel probing the charges of sexual harassment.
The legal fraternity would know that the inquiry against the sitting High Court and Supreme Court judges is contemplated under an in-house procedure which was recommended by a committee of five former Hon’ble judges, the prominent of all was Justice S.P. Bharucha. The said report of the committee was evolved and adopted by the full court of the Hon’ble Supreme Court on 15.12.1999. The objective was to give judges protection given the nature of their office and judicial functions which they dispense. Since 1999 no one has assailed or pointed out any lacunae in the procedure for setting up an inquiry and the working of the inquiry committee.
A perception is being created in the mind of the general public that the Complainant was not allowed to be represented and accompanied by a lawyer, the inquiry did not proceed in a judicious manner.
I may say that the inquiry into the allegations made by the Complainant was an inquiry of the truthfulness of the allegations and not on any point of law, and the best person to answer and apprise the committee of the alleged real events was the Complainant herself, in which no lawyer could be of any assistance. The committee had the detailed affidavit of the complainant and she had already supplied relevant material to the Hon’ble Supreme Court with her affidavit.
The affidavit and the material were duly considered by the inquiry committee as the newspaper reports clearly suggested that the complainant was called by the committee on different occasions. Her grievances cannot take a new shape with each passing day and if her version did not inspire any confidence, the committee is within its right to bring a quietus to the entire controversy. Merely because the report of the Inquiry committee has not gone in favour of the complainant, it does not mean that the whole system is against her.
It needs to be remembered that the principles of natural justice have many facets and there is no straight jacket formula for the same. The said principle has to be judged in the facts of every matter. The main objective of natural justice is that no person should be condemned unheard.
From the news reports I can gather that the former employee was given around six hours to present her allegations. If certain uneasy questions would have been asked by the Hon’ble Committee to her, which she could not answer and chose to walk away on unfounded grounds, it cannot constitute a breach of natural justice. The inquiry cannot be called an ex-parte inquiry when the Complainant has participated in the same and she was satisfied with the constitution of the committee, once Justice Ramana opted to withdraw himself for the committee.
Mere allegations of prejudice and apprehension of bias against the committee which had no personal interest in the matter cannot be a subject of criticism and judicial impropriety.
From the above, in my humble opinion the entire system cannot have any motive against a single person and sometimes there is a difference between what one perceives and what meets the eye.