The Cabinet’s decision to send a Presidential Reference to the Chief Justice of India to inquire into the allegations of sexual harassment of a law intern by retired Justice A.K. Ganguly, and other alleged wrongdoings will pose new challenges both for the retired judge as also the Apex Court. Propriety demanded that Justice Ganguly should have resigned as chairman of the West Bengal Human Rights Commission (WBHRC), immediately after a Supreme Court Committee concluded that the allegations leveled against him “prima-facie disclose an act of unwelcome (sexual) behavior.” His resignation from that post, even today, will uphold the moral standards expected from a judge and preserve the dignity of the judiciary. But having withstood public ire for the last many weeks, resigning from his chairmanship, from his personal perspective, may be the farthest thought in his mind. Here’s why.
Shortly after a Committee consisting of three senior sitting Supreme Court judges acting in their administrative capacity concluded that the statements of the law intern prima-facie disclose unwelcome verbal/non-verbal conduct of a sexual nature, Justice Ganguly wrote a detailed letter to the Chief Justice questioning the legal basis for the Committee and raised concerns about the manner in which the committee functioned and came to its conclusions. Justice Ganguly also felt that the Committee did not follow due-process. Justice Ganguly’s anguish did seem like a case of ‘sour grapes’ given he raised these issues only post the findings of the Committee. But when the Chief Justice, post a full court, noted that “no further follow-up action was required” to be taken by the Supreme Court in relation to the Committee’s findings, many questioned the need for even constituting the Committee and it was unclear on what to do with the Committee’s findings.
As things stand today, the law intern has made no police complaint nor is an FIR registered against Justice Ganguly for his alleged sexual misconduct. Notably, his position as chairman of the WBHRC does not bar the police from taking suo-moto action or taking cognizance if a complaint were made. Justice Ganguly has been indicted by a Committee comprising of Supreme Court Judges who examined the oral and written statements of the law intern. Justice Ganguly denies the allegations, questions the conclusions and in his letter to the Chief Justice, wants the opportunity to rebut the allegations. Such a process would result almost in a trial-like scenario which the Supreme Court Committee could not have done acting on its administrative side, and which the law enforcement agencies will not undertake, until they receive a complaint and investigate the allegations. Any such investigation would require the complainant to participate in the police investigative process, which she may have wanted to avoid, evidently, by her not lodging an FIR till date. But, if the law intern were to file a criminal complaint, the prima-facie findings of the Supreme Court Committee are likely to prejudice any magistrate before whom the case comes since it would be very difficult to pass any order against the findings of the Apex Court. Thus, Justice Ganguly is in a paradoxical catch-22 situation.
But, by not resigning as chairman of the WBHRC, Justice Ganguly may just have achieved everything he procedurally wanted and had requested from the Chief Justice in his eight page communication. He has also compelled the authorities to follow the process required under Section 23(1A) of the Human Rights Act, under which the chairman shall only be removed by an order of the President on the ground of “proved misbehavior or incapacity” after the Supreme Court on a reference made to it, has, “on inquiry,” reported that the chairperson ought on any such ground be removed. The procedure under this section is similar to Article 317, dealing with the removal of members of the public services commission, but use of the words “proved misbehavior” in Section 23(1A), bring it closer to the wording of Article 124 dealing with removal of Supreme Court Judges. And since there is no precedent on the removal of a state human rights commission chairperson, the Apex Court is likely to follow the standards followed under both the above-cited Articles. Prima-facie findings will not fulfill the requirements of the statute and the misbehavior will necessarily have to be proved.
As the Supreme Court has noted in previous Presidential References, the procedure it adopts in such matters is unique and based on what is required to address the issue at hand. Regardless, upon the Presidential Reference being made, the Supreme Court will most certainly issue notice to the law intern, Justice Ganguly and the Advocate General of West Bengal, and the inquiry mandated to be carried out can be somewhat similar to a trial. In fact, the Court in a previous reference has held that it has the powers to summon witnesses, record their evidence and even permit cross-examination if necessary. And, unlike the closed door deliberation of the Committee, arguments in a Presidential Reference are normally heard in open court and this will compel Justice Ganguly and the law intern to confront each other under public gaze.
For arguments sake, assuming the allegations of sexual misbehavior don’t get proved, even then, Justice Ganguly will need to pass the “institutional integrity” test, a standard established by the Supreme Court itself and last applied while removing the Chief Vigilance Commissioner from his post. Factors considered in that determination include whether by continuation of the incumbent working of the institution would suffer and whether the allegations against the incumbent are such that prevent their ability to effectively function in that post. The Supreme Court has held that where institutional integrity is in question, the touchstone should be public interest. It has also held that independence and impartiality of statutory institutions has to be maintained and preserved in the larger interest of the rule of law. Justice Ganguly is presumably aware of these requirements, does he think he will be able to pass these thresholds?
In any event, this case is not about testing the contours of a Presidential Reference, the powers of the Apex Court and the legality of the allegations. It is about morality, ethics and behavior unbecoming of a high ranking official. It’s also a test of the independence of our judiciary. But it’s first about a young lady and the trauma she may have undergone. Some may come out unscathed. But one can’t say that for all since “glass, (bone) china, and reputation are easily cracked and never well mended.”
Satvik Varma is an advocate based in New Delhi & an Aspen India Leadership Fellow.