G E Vahanvati Giving Approval for Removal of Justice A K Ganguly

The attorney general G E Vahanvati has given approval to the Centre’s motion to start the process for the removal of Justice A K Ganguly’s removal his post as the chairman of West Bengal human Rights Commission by sending a presidential reference to the Supreme Court on the basis of “misconduct”.

The decision made by Vahanvati which was a result of three-judge fact-finding panel of the SC recorded that prima facie the retired judge appeared to have shown “unwelcome sexual behaviour” towards a law intern in a Delhi hotel in December last year. The opinion was endorsed by law minister Kapil Sibal’s strongly that there should be an initiation for the removal proceedings of Justice Ganguly.

The government has decided to take recourse to the removal process provided under Section 23 (1A) of the Protection of Human Rights Act, 1993 which 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 on 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,” as members of Parliament and political parties demand for Justice Ganguly resignation.

Vahanvati commented that in his opinion, “a clear prima facie case is made out (on alleged prima facie misconduct of Justice Ganguly) which justifies an inquiry under Section 23(1A) of the Protection of Human Rights Act by sending of a reference by President to the Supreme Court.”

The question which is creating some doubts in the government was whether the three-judge committee’s views was enough for sending a presidential reference for the initiation of inquiry by the Supreme Court into alleged grounds of misconduct.

Vahanvati’s opinion of initiating the removal of Justice Ganguly was based on the SC’s judgment on a PIL which sought a direction to the Centre to send a presidential reference to the apex court as part of the process for initiation of proceedings for the  removal of Justice K G Balakrishnan as chairperson of National Human Rights Commission.

Addressing the legal doubt on what was the “standard required for the President to make a reference to the Supreme Court”, he said as per the law laid down by the SC in Justice Balakrishnan’s case, the President could send a reference if there existed a prima facie case of misconduct.

According to Vahanvati the facts of the case related to Justice Ganguly fell within the “prima facie misconduct” standard which was laid down by the apex court and opined that the President would be well within his powers to send a reference on this issue to the apex court. The three-judge committee had recorded statements of the girl, the retired judge and also theaffidavits submitted by her.

The panel gave a report to Chief Justice P Sathasivam on November 28 concluding that “the committee is of the considered view that the statement of the intern, both written and oral, prima facie discloses an act of unwelcome behavior (unwelcome verbal/non-verbal conduct of sexual nature) by Justice (retired) A K Ganguly with her in the room at hotel Le Meridien on December 24, 2012 approximately between 8 pm and 10.30 pm.”

Denisha Sahadevan