Hamid Ansari’s office asks: can a retired judge probe a sitting judge?

Justice Sen had retired last month and the Vice President, who is also Chairperson of the Rajya Sabha, had earlier sought the opinion of the Law Ministry on the course of action to be taken in view of the retirement. The other members of the panel are Calcutta High Court Chief Justice Manjula Chellur and eminent lawyer K K Venugopal.

[related-post]

While the Law Ministry opined that the retired judge could not continue to head the committee since the Judges (Inquiry) Act, 1968, under which the committee was constituted, referred only to sitting judges, AG Mukul Rohatgi opined that Justice Sen may be allowed to continue or the panel reconstituted. However, the AG added that he was inclined to endorse the view expressed by Venugopal that there was nothing wrong if the former judge continued to head the panel.

“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 is learnt to have told the Law Ministry.

To buttress its point, the Rajya Sabha Secretariat is learnt to have pointed out that whenever there were vacancies in an impeachment probe panel in the past, the committee was reconstituted.

Law Ministry sources also pointed to the views expressed by Y B Chavan, the then Home Minister, who piloted the Judges (Inquiry) Act, 1968, in Parliament. Participating in the debate in Parliament in August 1968, Chavan had stated that the Bill didn’t allow a “retired judge to come into the picture” and that the two judges, who would be members of the probe panel, would represent the Supreme Court and the system of high courts.

“How can a retired judge represent the Supreme Court in such an important panel? The best course would be for the RS Chairman to make a request to the Chief Justice of India to seek a replacement for Justice Sen, something that the AG should have advised in the first place. Let us see what happens now,” said a source.

In her complaint of August 2014 to the then CJI and several Supreme Court judges, the woman judge had alleged that Justice Gangele sent her a message through the district court registrar to “perform dance on an item song” at a function at his residence. She said she avoided the function, but the next day, Justice Gangele allegedly told her that “he missed the opportunity of viewing a sexy and beautiful figure dancing on the floor”.

Incidentally, a three-judge in-house committee, which was probing the allegations against Justice Gangele, had last year said that there was “insufficient” material to establish the charge of sexual harassment. It has also said that the case of the “complainant herself in regard to the three alleged incidents (of sexual harassment) is riddled with inconsistencies and contradictions”.

However, 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”.