Can a retired Judge continue to head the probe panel against a sitting Judge: RS Chairman asks Law Ministry

Vice President Hamid Ansari has reportedly sought a definite opinion from the Law Ministry on whether retired Supreme Court Judge Vikramjit Sen can continue to head the panel constituted to investigate sexual harassment charges levied against Justice Gangele of Madhya Pradesh High Court.

While opining that a retired Judge could not continue to head the panel, the Law Ministry had referred to certain provisions under the Judges (Inquiry) Act, 1968, which refer only to sitting Judges with regard to constituted committees. However, Advocate General Mukul Rohatgi had opined that Justice Sen could continue heading the panel, even after he has retired. You may read the LiveLaw article, here.

“At the outset, this Secretariat is unable to understand how the two contrary and conflicting courses of action as advised by the Ld Attorney General will be valid in law at the same time. As per our understanding, even if a provision is capable of being interpreted in more than one ways, which may even be conflicting to each other, ultimately, there would be only one valid interpretation, if at all the provision is legally sustainable,” the Rajya Sabha Secretariat was quoted to have told the Law Ministry.

To give an example to elaborate on its point, Rajya Sabha Secretariat pointed out that in the past, whenever there have been vacancies in an impeachment probe panel, the committee has been reconstituted.

In order to look into the intent of the legislation, Law Ministry sources were reported as having referred to the arguments made by the then Home Minister Y.B. Chavan, who piloted the Judges (Inquiry) Act, 1968 in the Parliament. During a debate in August, 1968, Mr. Chavan had stated that the two Judge members of the investigation panel would represent the Supreme Court and the system of High Court Judges.

In April last year, a three member judicial committee had been set up by Vice President Hamid Ansari, in order to initiate impeachment proceedings against Madhya Pradesh High Court Judge S.K. Gangele, on charges of sexual harassment against him by a former Additional District and Sessions Judge. You may read the LiveLaw article, here.

In an appalling revelation, the female Judge had alleged being sexually harassed by her administrative Judge. She subsequently had to resign to guard her “dignity, womanhood and self-esteem”. Read the Live Law story here.

The HC Judge had however denied all allegations and has reportedly offered to face any probe by any agency including an investigating agency, ready to “face any penalty, even the death penalty”. A few female lawyers had demanded an impeachment proceeding against the Judge. They have reportedly moved a resolution in the Supreme Court Bar Association demanding an enquiry into the matter.

Commenting on the impeachment motion, senior Supreme Court lawyer Indira Jaising, advocate for the former judge, said, “It is a welcome step. I am very hopeful that justice will finally be done to the lady who had to resign, while the HC Judge, who stands accused of such a serious offence, continues in office.” CJI Lodha had hence urged the formation of a panel comprising of senior Judges in order to investigate the allegations of sexual harassment. Read the Live Law story here.

The woman Judge had however contended that until the MP High Court Judge continues to assume his post, the witnesses would not be able to depose in a free and fair manner. She further alleges that one of the two members in the panel had once transferred her and that might lead to prejudice in the investigation. Read the Live Law story here.

Consequently, in December, 2014 the Supreme Court had quashed the inquiry initiated by MP High Court and had directed the Chief Justice of the High Court to divest the accused Judge of the administrative and supervisory control vested in him, in order to ensure that the investigative process in fair and just. Read the judgment here.

However, last year, the three-Judge committee had found that that there was “insufficient” material to establish the charges. In its report dated July 2, 2015, the committee had also concluded that the HC Judge was “ambivalent and evasive about facts which are within his knowledge”. You may read the LiveLaw article here.