The Telegraph
Wednesday , January 15 , 2014
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Intern case against ex-judge tops agenda

- Legal circles feel categorical order is needed in year of key retirements
P Sathasivam

New Delhi, Jan. 14: The complaint by an intern against former judge Swatanter Kumar has been listed as the first item on Wednesday’s agenda for a three-judge bench that includes Chief Justice of India P. Sathasivam.

The expectation among several lawyers and judicial officials is that the bench will issue a categorical order to avert any ambiguity, especially because at least 10 judges are retiring from the Supreme Court this year.

They include the Chief Justice and Justice R.M. Lodha who will succeed Justice Sathasivam in April this year. Justice Lodha himself will retire in September. This apart, seven others have retired during 2013.

The intern has accused Kumar of sexual misconduct when he was serving as a judge. But the allegations became public over two years after the judge retired.

Some lawyers felt that when the matter comes up for hearing at 10.30am, the three-judge bench, which includes Justices Ranjan Gogoi and Shiva Kirti Singh, has two options before it.

The first option is to dismiss the petition by sticking to the full court’s December 5 resolution that said the apex court has no jurisdiction to deal with retired judges. The resolution was adopted in relation to the allegations levelled by another intern against former judge Asok Kumar Ganguly.

The sense then was that there was an alternative remedy of approaching a police station for registering an FIR as nothing in law bars the police from pursuing such cases.

“The victims should come forward to lodge FIRs against the ex-judges. The law will take its own course,” said a judge, who recently retired and was known for many orders that went against the government, today.

Another judicial official said care should be taken to ensure that any order would not lead to false complaints. “There is a feeling that vested interests can always keep the Damocles’ sword hanging on sitting judges that if they act tough on law-breakers, they can be saddled with such post-retirement embarrassment,” he said.

Others pointed out that damage had been done to Ganguly even though any guilt had not been proved yet in any court of law and no police complaint had been filed yet by the complainant.

In the second case, the intern had claimed that Justice Kumar was a sitting judge at the time of the sexual harassment and, hence, the Supreme Court was bound to examine her complaint.

The dilemma for the court is that it does not want to be seen as going against its own historic 1997 Visakha judgment that laid down the process to be followed in the event of allegations of sexual harassment at workplaces.

The problem is compounded by the fact that the court took long to set its own house in order. Even though the judgment was passed in 1997, the apex court set up a full-fledged and powerful anti-sexual harassment cell only in November last year.

By then, the allegations against Ganguly had become public, and the court’s move was seen as a belated response. Besides, the committee has the jurisdiction to deal only with offences within the precincts of the court and not outside.

The intern in Justice Kumar’s case, besides seeking an inquiry into the allegations levelled by her, had also pleaded that the scope of the committee’s jurisdiction be expanded to all places visited by the women interns, scholars, advocates and judicial officers in discharge of their duties.

There is near-unanimity in legal circles that the controversies would not have snowballed had a proper redress system, such as the anti-harassment cell, been put in place soon after the Visakha judgment.

The second option before the apex court is to refer the allegations of the intern to the newly constituted committee headed by Justice Ranjana Prakash Desai.