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Issue No.: 559 | January 2014
 

Indictment of Justice Ganguly: To What Avail?

Keshav Rau
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After all, it was a Bench of the Supreme Court which had laid down comprehensive guidelines for dealing with cases of sexual harassment. Therefore, when it came to dealing with similar cases involving its own fraternity, the CJI should have gone all out to ensure a thorough probe in a transparent manner and also ensure that stringent action taken against the persons concerned

The allegations made by a lady law graduate of the National University of Juridical Sciences, Kolkata, on November 6 of this year in a blog for the Journal of Indian Law and Society that she was sexually harassed by a Supreme Court (SC) Judge while she was interning with him has been established to be correct. On November 30, it was made public that the Judge in question was Justice A K Ganguly, who retired on February 3, 2012. A little over a fortnight before the disclosure of the identity of the Judge, the Chief Justice of India [CJI], P. Sathasivam, had constituted a 3-Judge Enquiry Panel consisting of Justices R M Lodha, H L Dattu and Ranjana P Desai to enquire into the allegations. 

In unequivocal terms, the Enquiry Panel concluded:

"The statement of the law graduate, both written and oral, prima facie discloses an act of unwelcome behaviour (verbal / non-verbal conduct of sexual nature) by Justice (retd) A K Ganguly with her in hotel Le Meridien on December 24, 2012 approximately between 8 pm and 10.30 pm.”

The high hopes aroused by the prompt constitution of a Committee consisting of senior judges of the Supreme Court were belied just nine days after the Committee submitted its Report, when the CJI passed an order saying that since the Supreme Court had no administrative control over a retired judge "no further follow up action is required by this court”. The CJI went on to say that "he had promptly constituted a three-judge inquiry panel on November 12 because that day’s Times of India [ToI] had run a story headlined ‘SC judge harassed me, says intern’, which gave an impression that allegations were made against a sitting judge.”[ToI December 6]

The ToI report had quoted extensively from the blog in which the intern recounts how the month of December 2012 (when the "Nirbhaya” case shook the nation) "was momentous for the feminist movement in the country….” She goes on to narrate how at that time she went past hurdles put up by the police "to go to the assistance of a highly reputed, recently retired [emphasis mine] SC judge whom I was working under during my penultimate semester. For my diligence, I was rewarded with sexual assault…from a man old enough to be my grandfather.” 

Surely, the country does not expect the CJI to rely on mere newspaper headlines to take decisions on matters concerning serious allegations against a serving or retired judge of the SC – or, for that matter, even the High Courts? Newspaper headlines, for one thing, have necessarily to be abridged because of space constraints. Secondly, newspapers arouse readers’ interest through headlines. In this particular case, however, ToI’s headline "SC JUDGE HARASSED ME…” was not at all off the mark because in a headline a Judge of the SC or of a High Court  – whether  retired or serving - could safely  be inferred”. If the CJI was genuinely not sure whether the allegations in the blog had been made against a serving or retired Judge, he could have, by virtue of the high office that he holds, obtained information from the intern as to the status of the Judge concerned – whether retired or serving.

If the allegations were against a serving judge, the procedures laid down for initiating impeachment proceedings should have been followed by the CJI. In case the judge concerned had retired and the matter did not relate to a period when he was a serving judge, the logical follow up action would have been to direct the SC’s Registrar to file a comprehensive FIR on the basis of not only what she narrated in her blog, but also what she said in an interview to "Legally India” subsequent to her blog. In her interview (as reported by ToI in its issue November 6), she said, 

"I have heard of three other cases (of sexual harassment) by the same judge and I know of at least four other girls who’ve faced harassment from other judges – perhaps as (bad as mine): most of them were in the chambers of the judge and other people around, so it’s never gets so bad. A girl I know faced continuous sexual harassment throughout and sexual advances, and actually faced troubles through her work because of it.”

Hold up the Mirror

The CJI should have constituted a Bench to monitor the progress of the investigation on the FIR and the progress of the criminal case, if registered as a consequence of the FIR. After all, it was a Bench of the Supreme Court which had laid down comprehensive guidelines for dealing with cases of sexual harassment. Therefore, when it came to dealing with similar cases involving its own fraternity, the CJI should have gone all out to ensure a thorough probe in a transparent manner and also ensure that stringent action is taken against the persons concerned.  

Now, with the CJI deciding to close the matter even after setting up a high-powered Enquiry Panel, which returned a finding of inappropriate behaviour on the part of the Judge concerned, either the intern files an FIR or the Police registers a case as a cognizable offence (as was done by the Goa Police in the Tarun Tejpal case). At the time of writing, newspapers have reported that the Delhi Police have geared themselves to registering a case against Justice Ganguly. For that, the intern’s statement has to be recorded by the Police either before it or before a Magistrate. The response of the intern has been: she was travelling and for the present unavailable for giving her statement to the Police.

This may well turn out to be routine sort of case being registered by the Police, and may well fall through for lack of evidence to establish guilt with proof beyond doubt. In that event, the three Judges who indicted Justice Ganguly would be placed in an extremely embarrassing situation. On the other hand, an FIR lodged on the direction of the CJI and monitored by a Bench of the Supreme Court would have provided the required degree of seriousness to the case and allowed it to reach its logical conclusion.

The only saving grace in this entire sordid affair is that the belated lodging of complaints/FIRs has not been viewed with suspicion as some courts have tended to do so on some occasions. Nor has there been any attempt at casting aspersions on the character of the lady concerned. Hopefully, this will serve as a good precedent because the moment a complaint or allegation of this nature is lodged, an attempt is made to examine whether it was a belated complaint or try to fish out something against the complainant’s activities.

KESHAV RAU is a freelance writer.
keshav.rau@gmail.com
 
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