Passing judgement on others but not oneself

When you submit yourself to a process , you can’t turn around and question it when the result is not to your liking. That is what the courts tell candidates who challenge selection procedures after the results are out. The same principle must surely apply to Justice A K Ganguly as well.

The full contents of his video-recorded statement to the judges’ committee are not known. We do know now that he raised legal pleas and questioned their jurisdiction. But it is clear that he gave his version as well. And in that, he denied the incident, while admitting the intern’s presence in the room. He needn’t have appeared before them. Or he could have questioned their authority and walked out. But he chose to speak, obviously hoping for a clean chit. Unfortunately for him, the judges, though not acting in their judicial capacities remembered their oaths of office. They did their painful duty “without fear or favour, affection or ill-will.”

Just imagine what would have happened if the committee had found otherwise. They could have, after all, found that the victim’s version was, again prima facie, “untrue” or “not worthy of credence” or even “improbable.” She would have been branded for life as a liar. And the findings of the same jurisdiction-challenged committee would have been hailed as a complete vindication of the judge.

Remember, it was not she who had asked for this committee; she was content with sharing her experience on the blog. She could have avoided appearing before the committee either because of its lack of legal status or even because of its composition (many had questioned the appointment of a committee which only had judges on it, fearing a whitewash). And yet she chose to appear and depose. This could have only been because of her complete confidence in herself.
Those who invoke due process seem to miss the point that it has been followed both in letter and spirit. The judges took care not to exceed their brief. They restricted themselves to a prima facie view, which is the most that they could have done considering their lack of statutory status.

We are not dealing today with a livelihood issue of an ordinary employee who is being asked to quit without a regular enquiry. The question today is about the appropriateness of a former Supreme Court Judge heading a statutory human rights body with the taint of a human rights violation against him. And this is no longer within the realm of an allegation.

The tortuous process of a Presidential Reference will now begin. He can’t be suspended in the meantime . And unlike a High Court or Supreme Court judge from whom judicial work can be withdrawn by his Chief Justice, no one can withdraw work from Chairperson Ganguly.

Justice Ganguly expected certain standards from politicians. A judgment of the Supreme Court to which he was a party had indicted the late Vilasrao Deshmukh for using his influence as chief minister of Maharashtra to prevent the police from registering a case against an individual. While still a sitting judge, he expressed his dismay at a public function about Deshmukh being in the Central Cabinet. He said it was not “dignified” . He said it was “shameless” . Is it too much to expect that a judge must apply a higher standard to himself than what he applies to others?

Indira Jaising was absolutely right in releasing the details of the allegation with the victim’s consent. The Supreme Court had shown great courtesy to Justice Ganguly and even greater sensitivity towards the victim by not releasing the entire report with all its disturbing details, but advantage was taken of this. And there were many charitable views. Some wondered whether a firm handshake or a grandfatherly pat were being misunderstood. The time has now come for the Supreme Court to release the full report.

It is also time to seriously question the decision of the Full Court which is mentioned in the Chief Justice’s communique , that no complaints against retired judges will be entertained in future. It is one thing to say that complaints against them will be entertained only within a reasonable time after their retirement. If the court had said that six months was enough, there could not have been a serious quarrel. Now, God forbid, if a judge misbehaves in the last couple of months before demitting office, the only option left with a complainant will be criminal prosecution . The court which gave us Vishaka needs to do better than that!

The writer is a senior advocate, Supreme Court

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