Justice Vikramjit Sen can continue to head the panel probing sexual harassment charges against a Madhya Pradesh High Court judge despite his retirement from the Supreme Court, but the Rajya Sabha Chairman is free to replace him, the Attorney General has said.
In an opinion tendered to the Rajya Sabha secretariat, Attorney General Mukul Rohatgi has said Justice Vikramjit Sen can continue to head the three-member panel to probe charges of sexual harassment against Madhya Pradesh High Court judge Justice S K Gangele and complete the probe as soon as possible.
The Rajya Sabha secretariat had asked the Law Ministry whether Justice Sen, a sitting Supreme Court judge when he was appointed the chief of the panel in April last year, can continue to head it despite his retirement on December 31, 2015.
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The Ministry was also asked if another sitting SC judge is appointed in place of Justice Sen, will the panel start its investigation afresh or continue from where the Sen panel had left.
Referring to views in some quarters of the Law Ministry that a new presiding officer be appointed following retirement of Justice Sen, the AG said the Rajya Sabha Chairman can also nominate another sitting judge of the Supreme Court in his place.
He said the probe by the committee could recommence from the stage it was on December 31 when Justice Sen retired.
The top law officer has opined both the options would be valid.
Rohatgi said the Judges Inquiry Act, 1968 is silent on whether a judge can continue on an investigation panel after his or her retirement.
In April last year, Rajya Sabha Chairman Hamid Ansari had set up the three-member panel to investigate sexual harassment charges against Justice Gangele.
Besides Justice Sen, other members of the committee are Justice Manjula Chellur, Chief Justice of Calcutta High Court, and jurist K K Venugopal.
In March last year, 58 MPs including Digvijaya Singh
(Congress), Sitaram Yechury (CPI-M), Derek O' Brien (TMC), Ram Gopal Yadav and Jaya Bachchan (SP) had submitted a motion to Ansari for initiating impeachment proceedings against Justice Gangele for alleged sexual harassment of a woman judge in Gwalior.
The motion was admitted by Ansari following which he wrote to then Chief Justice of India H L Dattu to nominate a judge of the Supreme Court and Chief Justice of a High Court to the probe panel.
The motion lists three "grounds of misconduct" for impeachment. "Sexual harassment" of the woman judge, "victimisation" of the judge "for not submitting to his illegal and immoral demands", including but not limited to, transferring her from Gwalior to Sidhi, and "misusing" his position as the administrative judge of the MP High Court to use the subordinate judiciary to victimise the judge.
As per provisions of the Judges Inquiry Act of 1968, if the motion is admitted, the Speaker (of Lok Sabha) or the Chairman constitutes an investigation committee consisting of three members.
The committee is investigating the charges and grounds for removal of the judge and will submit its report to the Rajya Sabha Chairman. The report will then be tabled in both Houses of Parliament along with evidences.
The issue had hogged media headlines after the former Additional and Sessions judge resigned on July 15, 2014 following her transfer to a remote district. She then sent representations to the President, the Chief Justice of India and the Chief Justice of Madhya Pradesh High Court in which she had made serious allegations against Justice Gangele.
If the Rajya Sabha takes up the impeachment motion, it will be the third such case in Parliament's history and the second in the Upper House.
Justice Soumitra Sen of Calcutta High Court had faced impeachment proceedings in Rajya Sabha in 2011 for "misconduct" and "misappropriation of funds" in the capacity of a Calcutta High Court receiver.
The Rajya Sabha had voted in favour of impeaching him and, while the proceedings in the Lok Sabha were in progress, the judge resigned. Subsequently, the impeachment proceedings were dropped, taking into consideration his resignation.
Under the constitution, a judge of a high court or the Supreme Court can be removed by the President by a motion adopted in both the Houses of Parliament by two-thirds majority in the same session on "proved misconduct and incapacity".
The first such case involved impeachment of Justice V Ramaswami of the Supreme Court in May 1993. The motion fell in Lok Sabha for lack of numbers.
