The way will soon be clear for the President of India to ask for a statutory inquiry into allegations of misbehaviour against retired apex court judge AK Ganguly. Question is, how, if at all, would it stick under law?
It is understood that Attorney General of India Goolam Vahanvati will provide an opinion on the presidential reference to the law ministry tomorrow.
In its reference, if it takes place, the government would likely rely on a report stating that sexual misconduct allegations were prima facie made out against Ganguly by a former intern (“SJ”) in her testimony to three judges.
The question is whether the report by itself would legally be sufficient to kick off a presidential reference to the Supreme Court (SC) to remove Ganguly from the chair of the West Bengal Human Rights Commission (WBHRC) under Section 23(1A) of the Protection of Human Rights Act 1993.
Ganguly had claimed the report was confidential after additional solicitor general Indira Jaising published excerpts of SJ’s testimony in an open letter on Monday.
However, as reported by Legally India today, the judges’ report was to be kept confidential only until it would be submitted to the Chief Justice of India (CJI) P Sathasivam, who published its conclusions on 5 December, also sending a copy to SJ and Ganguly.
Since the report is effectively public and in the government’s possession, this gives it greater options of how to proceed with its reference, though it’s unlikely to be uncontested.
Precedents for reference
Section 23(1A) of the Human Rights Act states:
“[…] the Chairperson or any Member of the State Commission shall only be removed from his office by order of the President on the ground of proved misbehaviour or incapacity after the Supreme Court, on a reference being made to it by the President, has, on inquiry held in accordance with the procedure prescribed in that behalf by the Supreme Court, reported that the Chairperson or such Member, as the case may be, ought on any such ground to be removed.”
It is removal “on the ground of proved misbehaviour” in this section, which would give the SC inquiry commission wide scope to take action against Ganguly for alleged conduct, even if that conduct is not a crime itself, according to Mrs. Sarojini Ramaswami vs Union Of India And Others (1992), explained advocate and constitutional law expert Vivek Reddy. And while “proved misbehaviour” is not defined in the Constitution or the Human Rights Act, “sexual harassment would certainly constitute misbehaviour”, he said.
Reddy added that the misbehaviour need not have happened while in office. “The Supreme Court has held even the private life of a judge must be adhered to standards of probity and propriety which is acceptable to others. Impeachment proceedings were commenced against Justice Ramaswamy with respect to misbehaviour committed before they held office of the Supreme Court judge or high court judge. However, unlike a member of Union Public Service Commission, who can be removed on the ground of ‘misbehaviour’ the removal of Justice Ganguly must be on the ground of ‘proved misbehaviour’.”
While there are no direct antecedents to Ganguly’s case under the Human Rights Act, there are parallels in other laws.
Article 317(1) of the Constitution deals with the removal of members of a “public service commission” and is almost identical in language and mechanics to Section 23(1A) of the Human Rights Act. But it just requires “misbehaviour”, instead of “proved misbehaviour”.
Meanwhile, removing a Supreme Court judge under the Constitution’s Article 124(4) also requires “proved misbehaviour” to bring impeachment proceedings, but goes through parliament rather than the court:
A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than twothirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.
A question of ‘proof’
NLU Delhi assistant professor Anup Surendranath argued that where removal of members of a commission through a Supreme Court inquiry is concerned, Article 317(1) was “the gold standard”.
In Special Reference No. 1 of 1983, explained Surendranath, the SC stated that the existence of a “prima facie case” was sufficient to allow the President to make a reference under Article 317(1).
“For the removal of a member of the Public Service Commission – as an official who is appointed on a constitutional post – the law is pretty clear on that. Although, that is the procedure which is applicable to a constitutional post. Anything below [a constitutional post] would have much lesser protection,” he told Legally India.
However, Reddy argued that Ganguly could try to challenge the propriety of a presidential reference by drawing an anology to the language under section 124(4), governing the removal of judges. “The biggest impediment [to the implementation of 23(1A)] could be the use of the phrase ‘on the ground of proved misbehaviour’.”
“It is a difficult procedure,” said Reddy about cases requiring ‘proved misbehaviour’ rather than just ‘misbehaviour’. “That is a crucial difference… The last case under Article 317 was in 2010, where the SC emphasised that there is a difference between proved misbehaviour and misbehaviour.”
Reddy claimed that the Human Rights Act could require the president to make a reference with “all supporting material” and be satisfied that there was a case of proved misbehaviour: “With respect to Justice Ganguly, the president has to forward material demonstrating that he has committed and his action amounts to misbehaviour.”
Reddy points out that a 1991 case (Sub-Committee on Judicial Accountability v Union of India) dealing with the Article 124(4) removal of judges supports that misbehaviour should be proved before the reference is made. The SC decision drew an analogy with the Article 124 procedure for impeachment and asserted that prefixing “proved” before “misbehaviour”, “presupposes that misbehaviour or incapacity has been proved earlier” (paragraphs 44 and 45).
In that case, the SC categorically drew a distinction between Article 124(1) and Article 317(1) on the basis of the prefix “proved”. “The expression in clause (1) of Article 317 used for describing the ground of removal is ‘the ground of misbehaviour’ while in clause (4) of Article 124, it is, ‘the ground of proved misbehaviour or incapacity’,” the court said. Arguments in Mrs. Sarojini Ramaswami vs Union Of India And Others (1992) follow similar reasoning.
The government will have to argue that this interpretation is incorrect, with respect to the Human Rights Act’s removal procedures, and that the more closely aligned language of Article 317(1) governs Ganguly’s case, despite lacking the word “proven”.
The judges’ panel investigating Ganguly’s former intern’s allegations of sexual misconduct against him, had stated in its report that “the Committee is of the considered view that the statement of Ms. [SJ], both written and oral, prima facie discloses an act of unwelcome behaviour (unwelcome verbal/non-verbal conduct of sexual nature) by Mr. Justice (Retd.) A.K. Ganguly with her in the room in hotel Le Meridien on 24.12.2012 approximately between 8.00 P.M. and 10.30 P.M.”
“I can expect Ganguly to certainly raise the contention [that the reference is not supported by proper materials]. Ganguly’s case is slightly accentuated because there has been no FIR till date,” commented Reddy.
Reddy said that although SJ’s statement prima facie discloses an offence and this would be just sufficient to frame a first information report (FIR), further investigation would be required even for the police to frame a chargesheet.
It is only material such as a chargesheet that, in Reddy’s view, could meet the high standard of initial evidence required under Section 23. Alternatively, a constitutional authority’s statement that there was a prima facie case could be sufficient material, though from the report it does not appear that the three judges went beyond witness statements from SJ, three of her friends and Ganguly.
Since the three-judge report is not subject to confidentiality, Ganguly might argue against its sufficiency, if he were to take that route.
Unique due process
In Special Reference No. 1 of 1983 the SC also noted that for the purpose of Article 317(1), statements on affidavits by themselves would not be sufficient for the SC to eventually confirm “misbehaviour” after the reference.
If the Special Reference test is indeed the “gold standard” in such cases, including under the Human Rights Act as Surendranath argued, this would suggest that since the existing SC judges’ panel report is ‘merely’ a product of affidavits, it is by itself not enough for a new inquiry panel to prove misbehaviour.
To prove misbehaviour, the Supreme Court must likely conduct a proper trial of sorts, though an inquiry under Section 23(1A) would not necessarily have all the elements of a criminal trial, such as requiring proof beyond reasonable doubt or giving Ganguly a chance to lead evidence and use defence counsel.
Section 23(1A) states that an inquiry would be conducted “in accordance with the procedure prescribed in that behalf by the Supreme Court”, but the Supreme Court does not seem to have a ready procedure prescribed for such an inquiry and the Supreme Court Rules 1966 don’t deal with reference under Section 23(1A) of the 1993 Act.
However, the 1966 rules do deal with a reference made under Article 317(1). Order 38 of the rules empowers the Supreme Court to summon witnesses in an Article 317(1) inquiry. The Supreme Court’s ruling in Special Reference No. 1 of 1983 is the first precedent set for the SC’s procedure under Article 317 inquiries. In that case the apex court confirmed that it has the power to summon witnesses, record their evidence, permit them to cross-examine, and delegate the task of recording evidence to a lower court in the interests of expediency.
The Supreme Court’s 2010 Mehar Singh Saini, Chairman HPSC & Others case, which follows the jurisprudence of the 1983 reference, confirms that presidential references are unique and flexible in character. The court states that an Article 317(1) reference is neither criminal law (that requires proof beyond reasonable doubt) nor “service law” (content with proof “on the basis of preponderance of probabilities”). The court said even proof of a “reasonable preponderance of probabilities” would be enough in 317 cases.
This distinction is fully justified with reference to the constitutional scheme behind these provisions and the standards of performance and behaviour that the holders of such office are required to maintain. In other words, the proceedings before this Court are neither akin to proceedings under service law nor criminal law. In fact, they are sui generis [unique].
That may be one of the reasons that the framers of the Constitution opted not to give power of removal of Chairman/Member of the Commission to any other person except the President of India, and that too, on the basis of a report of this Court. Further, the procedure for removal has neither been stated in the Constitution in detail nor has this Court framed any elaborate rules in exercise of its power under Article 145 of the Constitution. The nature of the proceeding is such that it may become necessary for the Court to adopt a procedure befitting the facts and circumstances of a given case.
Modest criminal trial
Does the alleged act of “unwelcome verbal/non-verbal conduct of sexual nature” as stated in SJ’s affidavit (the judge holding and kissing her arm and professing his love to her) fit into any penal definition of an offence?
NLU Delhi associate professor Mrinal Satish told Legally India that while the Criminal Amendment Act 2013 cannot apply to this December 2012 incident, the Indian Penal Code’s Section 354 (outraging the modesty of a woman, with a jail term of two years or a fine or both) is a provision that could potentially apply in SJ’s case.
In the interpretation of Section 354 by the Supreme Court in Rupan Deol Bajaj v KPS Gill (1995), holding or kissing a woman’s hands might fit the definition of “outraging the modesty of a woman”, Satish said. [see also State of Punjab V Major Singh (1966)]
But even if in SJ’s case the only evidence available were her testimony and lacked other supporting witnesses or other evidence (SMS and phone records are claimed to exist), this would not necessarily preclude a criminal case. “On the question of evidence, in my opinion, if there is no corroborating evidence available, and the court finds the sole testimony of the victim to be reliable and credible, that in itself should be sufficient to convict. This is the rule in cases of rape (as held by the Supreme Court in various cases). I don’t see why that rule cannot apply to cases under Section 354,” commented Satish.
“I don’t think, legally speaking, [SJ’s case] is in any way different from the other cases under Section 354,” he said.
SJ or the government have several options available if they wish to pursue the allegations, though proving that modesty was outraged in trial court, would likely be a more arduous and lengthy path than a presidential reference.
Ganguly too, who has repeatedly denied the allegations and insisted he won’t resign from the WBHRC, also still has options. But the number of options available to him in law or otherwise appear to be decreasing day by day.