The Supreme Court today quashed the two judge panel set up by the chief justice of the Madhya Pradesh high court to probe the allegations of sexual harassment levelled by a woman district judge against sitting judge of the high court, Justice SK Gangele.
[Download judgment (PDF)]
A bench of Justice Jagdish Singh Khehar and Justice Arun Mishra quashed the panel, saying the state chief justice constituted it improperly as it was in violation of in-house procedures put in place by the Supreme Court to probe allegations of misconduct against sitting judges of the high courts.
Setting aside the probe panel, the apex court said that in the in-house procedure, “the limited authority of the chief justice of the concerned high court, is to determine whether or not a deeper probe is required”.
The said determination is part of stage one (comprising the first three steps) of the “in-house procedure”.
“The chief justice of the high court, in the present case, travelled beyond the determinative authority vested in him, under stage one of the ‘in-house procedure’,” the court said.
Justice Khehar said the chief justice “by constituting a ‘two-judge committee’, commenced an in-depth probe into the allegations levelled by the petitioner (former additional district and sessions judge).
“The procedure adopted by the chief justice of the high court forms a part of the second stage…” it said, adding the second stage was to be carried out under the authority of the Chief Justice of India.
The court said the judge, against whom allegations were levelled, will be divested of administrative and supervisory responsibilities and since the state’s chief justice has already taken a firm position on the issue, he too will not associate himself with the ‘in house procedure’.
“In order to ensure that the investigative process is fair and just, it is imperative to divest the concerned judge of his administrative and supervisory authority and control over witnesses, to be produced either on behalf of the complainant, or on behalf of the concerned judge himself,” the court said.
The court said the chief justice “having assumed a firm position, in respect of certain facts contained in the complaint filed by the petitioner, ought not to be associated with the ‘in-house procedure’ in the present case”.
The court said the CJI may reinitiate the investigative process, under the procedure, by vesting the authority required to be discharged by the state chief justice, to a chief justice of some other high court, or alternatively, “may himself assume the said role”.
Holding back the names of the woman judge, who resigned after she was transferred to the remote district of Sidhi after the alleged incident, and that of the judge against whom allegations were levelled, the court said that the “authenticity of the allegations” of sexual harassment “which have been expressly disputed” “would stand affirmed or repudiated only after culmination of due process”.
The court said the ‘in-house procedure’ to inquire into the alleged misconduct “was not a toothless mechanism” as it could be the basis for the impeachment of a judge under article 124 of the constitution and directed it be made public.
“In view of the importance of the ‘in-house procedure’, it is essential to bring it into the public domain. The registry of the Supreme Court of India is accordingly directed to place the same on the official website of the Supreme Court,” it said.
The media had been gagged from reporting the Supreme Court case until final judgment.
The complainant district judge, X, was represented by senior counsel Indira Jaising, and advocates ML Lahoti, Puroshottam Sharma Tripathi, Anindita Pujari, R Chandra Prakash, Satish Sangwan, Mukesh Kr Singh, Durga Dutt, L Nidhiram Sharma, Filza Moonis, Vineet Ajwani, Sonakshi Malhan and Shantanu J
The first respondent, the registrar general of the Madhya Pradesh high court, was represented by senior advocate Harish Salve, an advocates Anuradha Dutt, B Vijayalakshmi Menon, Ekta Kapil, Nikhil Sakhardande, Anubha Singh, and Atishree Sood.
Gangele, respondent number 3, had senior advocate Kapil Sibal and advocates Shruti Srivastava, Pragya Baghel, Mayank Gulati, Akhil Sibal and Sakim on his side.
Comments
Legally India loves playing fast and lose with the law :/
http://judis.nic.in/supremecourt/imgs1.aspx?filename=42205
The judge's name has been reported by us and many others in the past and is a matter of public record at this point. Unless the Supreme Court hands down an explicit gag order, I don't think there is anything improper or 'hard and fast' in reporting his name, right?
Well I assume Justice A should just file contempt and let Lord justice Khehar interpret the meaning of that paragraph!! By your logic naming X is also fair game since there is no specific gag order in her favour as well!!
Justice A enjoys no such protection under any law any more than Justices Swatanter Kumar or AK Ganguly do, and the judgment does not gag anyone from reporting on the identity of the judge, even if the SC decided not to name him in the judgment itself.
In any case, the cat is out of the bag with respect to Justice A's identity, which is a Google search away at most.
In reference to something being publicly available but still subject of an injunction you just need to look at the Ryan Giggs case or CTB V/s News Group.
http://en.wikipedia.org/wiki/CTB_v_News_Group_Newspapers_Ltd
http://www.theguardian.com/politics/2011/may/23/ryan-giggs-injunction-mp
An injunction, particularly a John Doe injunction, surely needs to be expressly phrased as an injunction and construed narrowly, and can not be an - at most - obiter remark in a judgment saying it's "inappropriate" to name someone *in that judgment*.
If your argument were correct, it would also be introducing the rather controversial concept of UK superinjunctions to India, which as far as I recall has not yet happened and has been expressly rejected in Indian jurisprudence.
I am certain that if their Lordships had wanted to injunct the media from mentioning Justice A's identity, they would have expressly said that there would be such an injunction.
Justice A is of course free to move for contempt, defamation, etc, but, if nothing else, I would think he would be found to have waived his right to anonymity months ago by going to the press and making comments:
http://www.dnaindia.com/india/report-sexual-harassment-charges-against-me-concocted-high-court-judge-tells-supreme-court-2028287
Now does SC mean hear, I won't disclose but you can?
[b]"It is impermissible to publicly discuss the conduct of a sitting judge, or to deliberate upon the performance of his duties, and even on/of court behaviour, in public domain."[/b] para 26.
saaf saaf to likhat raha, aap wapas padho
"protect dignity"... ref to as judge A
For those who don't have the judgment open:
[quote]Every day is a matter of learning. Hearing of submissions
in this case, we may say, was a matter of further understanding
the sensitivities involved in a controversy of the present nature.
We may venture to demonstrate this, by noticing a verbal
exchange, during the course of hearing, between the counsel for
the petitioner and that for the High Court. While the learned
counsel representing the High Court was on “his” legs, learned
counsel for the petitioner interjected to express “her” point of
view. All through, during the process of hearing, submissions
were advanced in a lively and respectful manner, and pointedly
on the subject under consideration. Feeling that the thought
being projected by the learned counsel was being disturbed by
the intervention, the Bench accordingly exhorted learned counsel,
to go on unmindful of the interruption. Learned counsel for the
High Court, well-meaning and deferential as he always is,
responded by observing, “The interjections by the learned senior
counsel for the petitioner, are always delightful”. Learned senior
counsel for the petitioner, had serious objection to the term,
‘‘delightful’’ used, with reference to “her”. She questioned, the
use of the term, ‘‘delightful” by posing to the learned senior
counsel, whether similar interjections by men, were also
considered by him as delightful. Why then, she questioned,
should “her” interjection be found ‘‘delightful’’. In expressing her
view, she went on to describe the response of the learned senior
counsel as “sexually coloured”. Having given our thoughtful
consideration to the response, of the learned counsel for the
petitioner, we may only say, that she may well be right. There is
a lot to be learnt, from what she innocuously conveyed. Her
sensitivity to the issue, one may confess, brought out to us, a
wholly different understanding on the subject. It is, therefore,
that we have remarked above, that the evaluation of a charge of
sexual harassment, would depend on the manner in which it is
perceived. Each case will have to be decided on its own merits.
Whether the perception of the harassed individual, was conveyed
to the person accused, would be very material, in a case falling in
the realm of over-sensitivity. In that, it would not be open to him
thereafter, to defend himself by projecting that he had not
sexually harassed the person concerned, because in his
understanding the alleged action was unoffending.[/quote]
I am no fan of either of them, but Salve was sexist in his attempt to put Jaising down and she took him on.
The Judges expressed their gratitude for the educational impact on them as to how subtle seemingly unoffensive use of words can in fact result in gender based targeting. This is a progressive leaning comment from the judges, am glad it was included in the decision.
I think Jaising was completely justified and Salve's "delightful" reeked of old boys club condescension and was intended to put Jaising down.
Jaising's right to address the court does not depend upon whether the male judges and senior counsel are delighted or not.
I think the new prima facie inquiry will find against the lady and the case will be closed.
The SC decision is not in favor of the complainant, and once again Jaising's role could theoretically be examined more closely.
For her to represent the judge seems high profile, especially being named before Akhil Sibal in the judgement itself?
Didn't Justice Gangele's daughter work with Akhil Sibal until very recently?