CURIOUS CASE OF RECUSAL

Just when it was thought that the matter was finally to be decided and done for, the three judge bench comprising of Justices A. K. Sikri, Abdul Nazeer and M. R. Shah of the Supreme Court of India have recused themselves from the case of former Additional District and Sessions Judge (ADJ) who had filed complaint of sexual harassment against, now retired, Madhya Pradesh High Court judge, Justice S.K. Gangele back in 2014.
The complainant resigned from court in 2014 alleging improper conduct by the then judge of the Madhya Pradesh High Court. The matter was investigated and looked into by a Judges Inquiry Committee set up by the Rajya Sabha which did not find any merit to the allegations, although the committee did find some discrepancies in her untimely transfer to a remote location affected by the Naxals.
She filed an application to withdraw her resignation to the Madhya Pradesh High Court which was rejected, allegedly without any grounds. She then moved the Supreme Court seeking reinstatement to the Judicial Office in order to “secure her fundamental right to employment and to work and carry on her profession”.
In their reply to the reinstatement request the Madhya Pradesh High Court stated that “that she cannot be allowed to withdraw her resignation when the high court had not compelled her to tender it in the first place.”
The petition seeks for reinstatement on the ground that her resignation should be treated as a “constructive termination” in defiance of her arbitrary transfer which was necessary in those circumstances and not to be treated as voluntary or conscious. The petitioner also refers to the inquiry panel which was in favour of the reinstatement of the former Judge is she wishes so.
The petitioner is represented by Senior Advocate Indira Jaising in the Supreme Court. The three Judge Bench recused themselves from the case late last month in order to allow Madhya Pradesh High Court to reconsider their previous stance of not allowing the former Judge to retake the office. The Bench has requested the High Court to at least consider the request on humanitarian grounds.
The recusal of the Judges form the case is in fact very curious. The question now standing is whether this recusal and suggestion by the Supreme Court Bench should be treated as their final opinion based on the merit of the case or not ? It is often seen that a suggestion of a Judge is treated with high regards and higher the seniority of the Judge, higher the regard. So is the suggestion of this Bench actually their way of deciding the case on merit without actually deciding it?

By-
Neha Bargotra
Chairperson
Reporter’s Committee- INBA