The Confidentiality of an In-House Inquiry Report

Then the reason the in-house procedure exists, in a single word:

"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."

"Lacuna." Chapter 1670's hiatus; chapter 1680's seven steps; and here the Court naming the whole thing for what it is.

And the reason no ordinary disciplinary law can fill it: "since Judges of the superior Courts occupy very high positions, disciplinary proceedings which exist in the case of all other employees cannot be thought of."

The facts and the prayers

A Senior Advocate of the Supreme Court petitioned under article 32 in public interest for two things.

One, publication of the inquiry report made by a Committee of two Chief Justices and a Judge of different High Courts, chapter 1680's stage two composition, into allegations of the involvement of sitting Judges of the High Court of Karnataka in certain incidents.

Two, a direction to a professional and independent investigating agency with expertise to conduct a thorough investigation and report to the Court.

First holding: the report is confidential, and why

"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. It is purely preliminary in nature, ad hoc and not final."

So the confidentiality of the in-house report follows from what the report IS, not from any privilege claimed for it. It is not a finding, not a judgment and not a decision; it is material gathered so that one office holder can decide whether to do anything. Chapter 1680's steps five and six say the same: on no substance the complaint is filed; on substance, the Chief Justice advises, or advises resignation, or intimates the President and the Prime Minister.

"If the Chief Justice of India is satisfied that no further action is called for in the matter, the proceeding is closed. If any further action is to be taken as indicated in the In-House procedure itself, the Chief Justice of India may take such further steps as he deems fit."

Second, the reason of institutional consequence, and it is the sentence students most often misquote:

"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."

Follow the argument. The in-house inquiry has no compulsion behind it; a Judge cooperates because it is less damaging than the alternative. If the report were published, that calculation reverses: a Judge would rather insist on the statutory inquiry, where he has charges, cross-examination and evidence on oath, and where nothing happens without a hundred signatures and two special majorities. Publish the report and the mechanism that actually works stops working.

Third, the jurisdictional answer, which is the real ratio:

"In the hierarchy of the courts, the Supreme Court does not have any disciplinary control over the High Court Judges, much less the Chief Justice of India has any disciplinary control over any of the Judges. That position in law is very clear. Thus, the only source or authority by which the Chief Justice of India can exercise this power of inquiry is moral or ethical and not in exercise of powers under any law. Exercise of such power of the Chief Justice of India based on moral authority cannot be made subject matter of a writ petition to disclose a report made to him."

That is a complete answer and a complete confession in the same breath. A writ lies to compel the performance of a legal duty. The Chief Justice of India held the inquiry under no law, so there is no legal duty to enforce and nothing for a writ to bite on. The in-house inquiry report is not published because the power that produced it is not a legal power at all.

Second holding: the right to information is not absolute

The petitioner relied on the line of decisions on the citizen's right to know: S.P. Gupta, Raj Narain, People's Union for Civil Liberties and the Cricket Association of Bengal case, and on the Freedom of Information Act 2002.

The Court accepted the premise and denied the conclusion. "It is no doubt true that in a democratic framework free flow of information to the citizens is necessary for proper functioning particularly in matters which form part of public record. The decisions relied upon by the learned counsel of the petitioner do not also say that right to information is absolute. There are several areas where such information need not be furnished." And the Act of 2002 "does not say in absolute terms that information gathered at any level in any manner for any purpose shall be disclosed to the public."

SOURCING NOTE, and a candidate should carry it. This decision is of 9 May 2003 and the statute it discusses is the Freedom of Information Act 2002. This book holds the Right to Information Act 2005 but no decision applying it to an in-house inquiry report, so it states the 2003 position and asserts nothing about what the position is under the later Act. Say so in an answer rather than guessing; the examiner is testing this case.

Third holding: the Ramaswami precedent does not help

The petitioner pointed to the 1990 episode, chapter 1650, where the Chief Justice of India made a statement to the Bar and the report of his three Judge Committee was made public.

The Court distinguished it on three grounds.

The Chief Justice there "unilaterally withdrew work" from the Judge; "That was his own decision", and the statement was made perhaps to tell the public what he was doing.

The report was made public because, "having withdrawn the work but when it became necessary to reassign the work pursuant to the report of three Judges, he felt appropriate that the said Report should be made public."

And the decisive point: "in either of these incidents Justice V. Ramaswami had not participated on the ground that the only manner in which he could be proceeded against is as provided under Article 124 of the Constitution."

So the one precedent for publication is a case where the Judge REFUSED TO TAKE PART. Publication and cooperation do not go together, which is the same proposition as the "more harm than good" sentence, arrived at from the other end.

Fourth holding: no independent investigation either

The claim for a direction to a professional and independent investigating agency was refused, "because appropriate course for the petitioner would be to approach the concerned authorities as enumerated in Article 217 of the Constitution."

And the criminal route was left open in terms: "If the petitioner can substantiate that any criminal offence has been committed by any of the Judges mentioned in the course of the petition, appropriate complaint can be lodged before a competent authority for taking action by complying with requirements of law." Note the closing words: "by complying with requirements of law." That is chapter 1700.

And the general position the Court stated: where the parties have material, "the only course open to the parties concerned if they have material is to invoke the provisions of Article 124 or Article 217 of the Constitution, as the case may be."

The criticism, stated fairly

An answer that only reports the holding is worth half marks. The examiner wants the argument on both sides.

Against the decision. The in-house procedure exists because removal is unworkable, chapter 1670. If its report is never seen, then a complaint of judicial misconduct is investigated in private, decided in private by one person, and closed in private, with no reasons, no appeal and no account to anybody. The very lacuna the Court identified is filled by a mechanism that is less accountable than the one it substitutes for. And the Court's own admission that not posting cases before a Judge is open to criticism because no enquiry was held applies with more force where an inquiry was held and its result is withheld from everyone including, at that time, the public that complained.

For the decision. The report is preliminary, ad hoc and not final; publishing untested material about a named Judge would damage a reputation that the process has not adjudicated, which is exactly what the 2015 judgment protected by anonymising both sides, chapter 1660. The Judge has no charges, no cross-examination and no lawyer at this stage, chapter 1680, so publication would expose him to consequences without the safeguards. The alternative is not a better inquiry but no inquiry, because Judges would elect the statutory route. And the Chief Justice of India is not concealing a decision he had power to make; he had no power at all, only moral authority.

The honest conclusion, and it is the one to write. The confidentiality is defensible as a matter of law and unsatisfactory as a matter of accountability, and both propositions are in the judgment itself. The answer is not to publish the report but to give the mechanism a legal foundation, which is what every reform proposal in chapter 1720 has attempted.

A worked example

A journalist learns that an in-house Committee has reported on a sitting High Court Judge and petitions for the report.

Will a court order it released? No. It is "wholly confidential", made for the satisfaction of the Chief Justice of India, and "purely preliminary in nature, ad hoc and not final."

On what ground exactly? That the Chief Justice of India held the inquiry under no law: the source of the power is moral or ethical, and its exercise cannot be made the subject matter of a writ petition to disclose the report.

Can the journalist rely on the right to know? The right is real but not absolute; "there are several areas where such information need not be furnished."

But the Ramaswami report was published. Distinguished: the Chief Justice withdrew work unilaterally, published the report because it had become necessary to reassign work, and the Judge had not participated in either exercise on the footing that article 124 was the only route.

Can the journalist get the CBI ordered in? No. The course is to approach the authorities enumerated in article 217; and if a criminal offence can be substantiated, to lodge a complaint before a competent authority, complying with the requirements of law.

Does it follow that nothing at all can happen to the Judge? No, and do not say so. Chapter 1680's steps six and seven remain: advice to resign, withdrawal of judicial work, and intimation to the President and the Prime Minister. What is withheld is the document, not the consequence.

What beginners get wrong

Saying the report is privileged. The Court did not rest on privilege; it rested on what the report is and on the absence of any legal power behind it.

Saying the right to information was rejected. It was accepted as a principle and held not absolute.

Applying the Right to Information Act 2005 to this case. The decision is of 2003 and discusses the Freedom of Information Act 2002; this book holds no decision applying the later Act to such a report and asserts nothing further.

Citing the Ramaswami publication as authority for publishing. The Court distinguished it, chiefly because the Judge had not participated.

Thinking confidentiality means impunity. The consequences under steps six and seven survive; only the document is withheld.

Quick revision

Indira Jaising v. Registrar General, Supreme Court of India, (2003) 5 SCC 494. Prayers: publication of an in-house Committee's report on allegations against sitting Judges of the High Court of Karnataka, and an independent investigation. Both refused.

The candour: the December 1999 Code of Conduct of sixteen clauses with declaration of assets has no sanction; the Chief Justice of India has no control over a puisne Judge's conduct; not posting cases is criticisable because no enquiry was held; "there is no adequate method or machinery to enforce the Code of Conduct"; and "on account of this lacuna" the in-house procedure was adopted.

The report: "wholly confidential", for the Chief Justice of India's information and satisfaction, "purely preliminary in nature, ad hoc and not final"; publicity "will only lead to more harm than good to the institution as Judges would prefer to face inquiry leading to impeachment."

The ratio: the Supreme Court has no disciplinary control over High Court Judges and the Chief Justice of India none over any Judge; "the only source or authority ... is moral or ethical and not in exercise of powers under any law", and such an exercise cannot be made the subject matter of a writ petition to disclose the report.

Right to information: not absolute; the Freedom of Information Act 2002 is not in absolute terms. The book asserts nothing about the 2005 Act.

Ramaswami distinguished: work withdrawn unilaterally, publication made necessary by reassignment of work, and the Judge did not participate.

The alternatives left open: article 124 or article 217, and a criminal complaint before a competent authority complying with the requirements of law.

Test yourself

1. Why will a court not order an in-house inquiry report to be published? Because of what the report is and of the power under which it was obtained. In Indira Jaising v. Registrar General, Supreme Court of India, (2003) 5 SCC 494, the Court held that what the Chief Justice of India does is to get information from peers of the accused judges, that the report made to him is wholly confidential, that it exists only for his information and satisfaction, and that it is purely preliminary in nature, ad hoc and not final; if he is satisfied that no further action is called for the proceeding is closed, and if further action is called for he may take such steps as the in-house procedure indicates. It added that publicity would lead to more harm than good to the institution, because judges would prefer to face an inquiry leading to impeachment instead. The decisive ground, however, is jurisdictional: the Supreme Court has no disciplinary control over High Court judges and the Chief Justice of India has none over any judge, so the only source of his authority to hold such an inquiry is moral or ethical and not any law, and the exercise of a power resting on moral authority cannot be made the subject matter of a writ petition to disclose the report.

2. What did the Court concede about the enforcement of judicial standards? A great deal, and the concessions are the most quotable part of the judgment. It said that sanction for the guidelines settled at the Chief Justices' Conference of December 1999, comprising sixteen clauses of a Code of Conduct together with the declaration of assets, is absent; that in our constitutional scheme it is not possible to vest the Chief Justice of India with any control over puisne judges in respect of conduct, personal or judicial; that on a breach of the Code the Chief Justice can only choose not to post cases before the judge concerned, a decision open to criticism because no enquiry is held and the judge has no opportunity to explain, particularly as the Chief Justice has no power to decide about a judge's conduct; and that there is no adequate method or machinery to enforce the Code of Conduct at all. It also said that no disciplinary inquiry other than that under the Constitution and the Judges (Inquiry) Act is envisaged or contemplated, and that it was on account of that lacuna that the in-house procedure was adopted, ordinary disciplinary proceedings being unthinkable for judges of the superior courts.

3. How was the publication of the report in the Ramaswami matter distinguished? On three grounds. First, the Chief Justice of India in that case unilaterally withdrew judicial work from the judge; that was his own decision, and the statement he made to the Bar was perhaps to tell the public what he was doing. Second, having withdrawn the work, when it became necessary to reassign it pursuant to the report of the three judges, he thought it appropriate that the report should be made public; the publication was therefore incidental to a decision about work rather than an account rendered of an inquiry. Third and decisively, in neither of those exercises had the judge participated, his stand being that the only manner in which he could be proceeded against was that provided by article 124. The precedent for publication is therefore a case in which the judge had refused to take part, which is the same point as the Court's observation that publicity would drive judges to insist on the statutory inquiry.

4. State the case for and against the confidentiality of these reports. Against it: the in-house procedure exists precisely because removal is unworkable, and if its report is never seen then a complaint of judicial misconduct is investigated in private, decided in private by a single office holder and closed in private, with no reasons, no appeal and no account to anybody, so that the lacuna the Court identified is filled by a mechanism less accountable than the one it substitutes for. The Court's own admission that declining to post cases before a judge is criticisable because no enquiry was held applies with greater force where an inquiry was held and its result withheld.

For it: the report is preliminary, ad hoc and not final; the judge at that stage has no charges, no cross-examination and no representation by lawyers, so publication would visit consequences on him without the safeguards, which is why the Court in a later case anonymised both the complainant and the judge; and the practical alternative is not a better inquiry but none at all, since judges would elect the statutory route. The Chief Justice of India is not withholding a decision he had power to make, because he had no power, only moral authority. The fair conclusion is that the rule is defensible in law and unsatisfactory in accountability, and that the remedy lies not in publishing the report but in giving the mechanism a legal foundation.