The Supreme Court faces an extraordinary dilemma. By ordering an internal probe into the allegations made by a former law intern against Justice (retd.) A.K. Ganguly, it had shown alacrity in protecting the image of the judiciary and responsiveness towards the plight of an aggrieved woman. The disclosure of the preliminary finding of a three-judge panel, that the former judge had indulged in an act of “unwelcome behaviour” towards the intern, led to Mr. Ganguly’s resignation from the post of Chairperson of the West Bengal Human Rights Commission. The court now has to contend with yet another challenge to its image and credibility in the form of a complaint by another former intern who has alleged she suffered an unsavoury experience at the hands of Justice Swatanter Kumar, when he was a Supreme Court judge. Mr. Kumar, who is now Chairperson of the National Green Tribunal, has denied the allegations. The former intern has now approached the court with a petition seeking a permanent mechanism to deal with sexual harassment in judicial bodies. She has also challenged the December 5, 2013, resolution of the Full Court that no more representations against former judges would be entertained. There can be no doubt that had a proper institutional mechanism been put in place a few years ago, both the aggrieved interns would have been better placed to seek redress. In its absence, the systemic imbalance of power between a judge and an intern deterred them from doing so.
In August 2013, the Supreme Court notified its regulations on gender sensitisation and sexual harassment of women on its precincts, and in November, its composition. A question that arises now is whether this mechanism is enough to adjudicate complaints of harassment and whether it can cover former judges. One dilemma for the judiciary is whether it should leave complaints against members of the superior judiciary to routine judicial processes such as a criminal complaint, or render a finding by its own judicial or administrative mechanism. There is a moral dilemma created by complaints that can be described as belated, going by the lapse of time, or timely, if one considers the present atmosphere as one that is more conducive to ensuring gender justice. It is whether the court is inadvertently creating a mode of removing or disabling or at least disparaging judges and heads of tribunals by encouraging such complaints. The question also arises if, going by the legal maxim that ‘a crime never dies’, it should not pursue the truth regardless of when it took place and where it leads to. There cannot be a perfect answer to the multiple dilemmas, but the court will hopefully put in place a mechanism that is seen as credible and fair while averting damage to the judiciary.