Justice Ganguly should step down, SC ask cops to file FIR, say lawyers

Supreme court does not have authority to punish Justice AK Ganguly; it can direct police to register an FIR on the basis of report by the SC-appointed panel, says senior lawyer Kamini Jaiswal

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Puja Bhattacharjee | December 19, 2013


Justice AK Ganguly has been accused of harassing a woman intern at a New Delhi hotel room in December 2012 – days after the gangrape shook the nation.
Justice AK Ganguly has been accused of harassing a woman intern at a New Delhi hotel room in December 2012 – days after the gangrape shook the nation.

As the year draws to a close, there’s a bitter sense of déjà vu in the air. Like 2012, which ended on a tragic and angry note with the gangrape and subsequent death of a paramedic in Delhi, and yet hopeful of a better new year thanks to the spirited public outburst, 2013 seems set to part on an equally dispiriting note: alleged sexual harassment by a supreme court judge (since retired), indictment by a SC-appointed panel and his stubborn refusal to leave a post-retirement constitutional post.

Significantly, even as the case against the accused – retired Justice AK Ganguly, who allegedly harassed a woman law graduate interning with him – played out in the media in bits and pieces, another boss was looking at time in jail. While everyone, barring those enjoying immunity, is said to be equal before law, Tarun Tejpal, former editor-in-chief of Tehelka, has been arrested by Goa police, which took suo motu cognizance of a sexual assault complaint by a junior woman colleague, Justice Ganguly, who allegedly harassed the intern at a New Delhi hotel on the pretext of working late night on a case, still retains all perks of being an ex-judge.

Ironically, the incident at the Delhi hotel took place on Christmas eve last year – barely eight days after the gangrape and assault on the paramedic and at a time when the public outcry was at its highest.

The indictment by a three-judge panel of the supreme court has so far caused no visible harm to Ganguly. Instead, he has stubbornly refused to give up his position as chairman of the West Bengal human rights commission.

So where does the Ganguly affair go from here, and how can justice be meted out to the victim?

Most lawyers agree that the first thing Ganguly should do it resign immediately from the human rights commission. That step, lawyers concur, should be followed by normal criminal punishment.

“He has committed a serious violation and cannot continue (in the commission),” senior supreme court advocate Kamini Jaiswal says. “Supreme court does not have the authority to punish him. On the basis of the report of the panel, it can direct the police to register an FIR.”

She also rues the fact that judges enjoy such levels of immunity, are “so protected and secure”.

Supreme court lawyer Ajayinder Sangwan also wonders why no FIR has been registered so far. “Why are we waiting for the president of India to take action? The supreme court should ask the police to register an FIR,” he says. “The law cannot be different for the public and the judges.”

A stop on hiring women interns, as many fear would be the case now, will send a wrong message, Sangwan says.

Kavita Krishnan, secretary of All India Progressive Women’s Association (AIPWA) and CPI(ML) politburo member and rights activist, says President Pranab Mukherjee now needs to make a reference to the supreme court for Ganguly’s removal from the human rights panel. “Both the apex court and the president play their role touching on the prestige on various constitutional bodies, including supreme court and human rights commission,” Krishnan, who played a significant role in the protest rallies after the Delhi gangrape, says.

Advocate Khushboo Jain says the apex court can ask the human rights commission to force a resignation if Ganguly continues to refuse to step down. “The supreme court should intervene and force Ganguly to resign,” she says. “All the perks of being a former supreme court judge should be taken away from him.”

Jain says as per the Visakha guidelines, Ganguly should be treated more strongly, adding that a judge is not above the law.

Advocate Dushyant Yadav says being the highest court of the country, the supreme court can take suo motu action against Ganguly but adds that it will set a bad precedent.

“If supreme court takes action it will violate a person’s right to a fair trial. On the basis of the report of the panel, Ganguly has been prima facie indicted. Now the police have to file an FIR,” he says.

While the state deliberates how to proceed in the case, justice Ganguly spends one more day as a free man who is seemingly above the law.

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