As two Calcutta High Court judges clash, the Supreme Court transfers a critical case to itself. The bigger issue at stake is the honour of the High Court
By Sujit Bhar
Here are some excerpts from directives spelt out by a full court meeting of the Supreme Court on May 7, 1997, specifically titled: “Restatement Of Values Of Judicial Life”. Within the first elucidation of the principles, the first observation of the Court was:
“(1)… The behaviour and conduct of members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly, any act of a Judge of the Supreme Court or a High Court, whether in official or personal capacity, which erodes the credibility of this perception has to be avoided.”
That Court went on to also observe:
“(6) A Judge should practice a degree of aloofness consistent with the dignity of his office.”
As well as:
“(8) A Judge shall not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination.”
And:
“(9) A Judge is expected to let his judgments speak for themselves. He shall not give interviews to the media.”
A simple explanation for these, almost monastic life-like prescriptions was to build and keep the trust of the citizens of India in the higher judiciary. It is a tall order, and that had been the case through several ups and downs of the judicial system of India. Of late, there have been incidents in which not just some senior lawyers, but even some former members of the top judiciary (read judges) have criticised the goings on in the higher judiciary. This shows that possibly some actions of the judiciary have not really remained beyond public critique, or should not. And this is anything but a comfortable situation for a judge of any Indian court.
Recently, an incident in the Calcutta High Court brought out into the open not only a less-than-sombre face of the judiciary, but also hit hard at the basic principles that most of the judiciary in India strives so hard to maintain. Two judges of that Court—a single bench and a division bench, to be specific—were at each other’s throats in a public spat, and there was enough political colour visible within the conflagration to force the Supreme Court to take suo motu cognisance and bring the entire case to top court.
On January 29, the apex court did a bout of quick fire-fighting, trying to extinguish the forest fire, transferring the case related to fake certificates in West Bengal from the Calcutta High Court to itself. The five-judge bench headed by Chief Justice of India (CJI) DY Chandrachud also directed all concerned parties to complete their arguments in the meantime.
It is not that the top court has never pulled out cases from lower courts and handled them itself, but the reason why this particular action was necessitated by the top court certainly does not add to the prestige of the already tottering judicial system of the country.
As a first measure, in a special Saturday (January 27) sitting, the apex court stayed all proceedings before the two benches in the High Court. It also issued notice to the state and to the original petitioner before the High Court, and stayed the implementation of the direction issued by the single judge Justice Abhijit Gangopadhyay, directing the CBI to investigate the case.
The bench of CJI DY Chandrachud and Justices Sanjiv Khanna, BR Gavai, Surya Kant and Aniruddha Bose has now listed the case after three weeks.
What did happen for the top court to take such a drastic measure? It is to do with the judge of the Calcutta High Court, Justice Gangopadhyay. This judge has had face-offs with the top court before and the apex court had to, even earlier, hold a special sitting to undo an act of Justice Gangopadhyay.
The situation has become so acrid that senior advocate Kapil Sibal, appearing for West Bengal, was not too sure what will happen even after the Supreme Court transferred the case unto itself. Before the CJI-led bench, Sibal said: “The judge continues to take these matters now. In the future he will do the same thing. What should be done?”
For the CJI, the fire-fighting continues. He has requested lawyers to refrain from making comments casting aspersions on the judge. “Let’s not… after all we are dealing with a HC judge… casting aspersions on either judge would be improper…anything we say here shall not impinge on the dignity of the HC,” he said. The problem is, the dignity of that High Court has been brought down quite a few notches by the action of these two judges, not by any comment by any lawyer.
What happened at the High Court would probably be written in the annals of Indian judiciary under the heading “Unprecedented”.
It was a “clash” between Justice Gangopadhyay and the High Court’s division bench’s lead judge, Justice Soumen Sen. Moving away from the prescription of “aloofness”, Justice Gangopadhyay openly accused Justice Sen of being biased towards the All India Trinamool Congress (AITC), the ruling dispensation in the state, calling Justice Sen an “interested party”.
This emanated from a seemingly run-of-the-mill case of alleged irregularities in reserved category certificates for admission to MBBS courses in state-run medical colleges and hospitals in West Bengal. It has been alleged that a large number of people, somewhat aligned to AITC, Chief Minister Mamata Banerjee’s party, had used such fake certificates to get admission to these medical colleges, at the cost of hundreds of genuine admission seekers.
As Justice Gangopadhyay took up the case on January 24, he referred it to the CBI for a detailed investigation. Soon after, on the same day, the state’s Advocate General Kishore Datta mentioned it before the bench of Justices Sen and Uday Kumar. With alacrity, the bench took it up and stayed Justice Gangopadhyay’s order.
However, there was more drama in store for lawyers and observers in that High Court.
Justice Gangopadhyay probably took this stay order as an affront or, maybe, there was some other imperative that is not clear at the moment. He took up the matter yet again, ordering the West Bengal Police to give the documents to the CBI. That was, in itself, a strange action, but Justice Gangopadhyay did not stop at that. He openly observed that Justice Sen, as head of the bench, stayed his (Justice Gangopadhyay’s) order to “save some political party in power”, going further, to suggest that Justice Sen’s actions were tantamount to misconduct.
While it is strange for a single bench to overrule a division bench—the division bench being the higher court in this case—Justice Gangopadhyay directed the authorities to ignore the division bench order, asking the CBI, yet again, to begin its probe.
The division bench of Justice Sen did not fall behind and, the next day, took the case up again, disagreed with Justice Gangopadhyay, and set aside that order.
And the rigmarole started all over again, Justice Gangopadhyay initiating a hearing, whence he not only ordered the AG to hand over papers to the CBI, but also passed further comments against Justice Sen.
Justice Gangopadhyay asked the AG under which law can a division bench stay an order of a single-judge when there was no memo of appeal. The AG made it clear that he need not reply to this question, because a single bench was “a lower court compared to the division bench.”
With the happenings becoming completely bizarre, Justice Gangopadhyay’s words in his order seemed a trifle below the belt. He wrote: “I have no other option but to ignore the order of the said division bench as the order has been passed in continuation of the illegal appeal void ab initio. I have ignored the said illegal order passed by the said division bench for the reasons as has been stated above including the ground of ‘interested person Hon’ble Justice Soumen Sen’.”
That was not all. Justice Gangopadhyay also alleged that Justice Sen had called Justice Amrita Sinha of the same High Court to his chambers just before vacation started and had told her that AITC’s National General Secretary Abhishek Banerjee (Chief Minister Mamata Banerjee’s nephew) has a political future and that he shouldn’t be disturbed.
It may be recollected that in April 2023, the apex court had ordered two cases related to the West Bengal school job recruitment scam—a case that has led to more than one minister of the state being put under detention—to be shifted from Justice Gangopadhyay. The then acting chief justice of the Calcutta High Court, Justice TS Sivagnanam, had assigned the cases to Justice Sinha.
There is a back story as to why the case was taken away from Justice Gangopadhyay. In yet another special sitting of the top court, on April 26 last year, Justices AS Bopanna and Hima Kohli had passed an urgent order of stay on Justice Gangopadhyay’s order directing the Supreme Court’s Secretary General to produce the transcript of his “controversial” interview on ABP Ananda’s (a Bengal news channel) show Ghanta-Khanek Songe Suman.
During the interview, Justice Gangopadhyay had apparently passed some comments against Abhishek Banerjee, related to the West Bengal teachers’ recruitment scam case. It was Justice Gangopadhyay who was handling the case at the time.
It may be recalled from the full court memo of the Supreme Court, as given earlier, that the Indian judicial system does not see kindly to a judge giving an interview to the media, and especially regarding a case that he/she has been handling. Also, the judiciary needs to maintain a good distance from political parties, affiliations and such.
This issue has come up for question in courts, especially when advocates general have been promoted to judgeship and the ex-lawyer retains a vestige of goodwill towards the party he/she represented from the bar. Time generally irons out this for the new judge and it has not created major problems.
For Justice Gangopadhyay, comments to the media were pertaining to the case, and to Abhishek Banerjee.
There was a transcript of this entire interview, prepared by the Interpreting Officer of the Calcutta High Court and the officer had sent this, along with a CD containing the interview to the Supreme Court, where it was placed before the bench of Chief Justice DY Chandrachud and Justice PS Narasimha.
The Supreme Court, therefore, has a fair idea of how Justice Gangopadhyay goes about his business. Whatever the top court says, the fact that it has had to organise two special sittings just because of this Calcutta High Court judge, must have left a somewhat bitter taste in the mouth of the top court.
Currently, Justice Sinha is hearing matters related to Abhisekh Banerjee. Now Justice Gangopadhayay alleges that Justice Sen told Justice Sinha to dismiss both matters in which Banerjee is involved.
Not stopping at that, Justice Gangopadhyay also asked why Justice Sen has continued as judge of the Calcutta High Court when his transfer was recommended by the Supreme Court collegium in 2021.
To the common man, this conflict might just seem more of personal interests rather than of the merits of a case. If it were about procedure, the issue could have been solved through a quick meeting between the two judges, or with the involvement of the chief justice of the court at the most. This basic concept is easily understood by the public.
When the Supreme Court does take up this case, it will have to not only take a decision on the case itself, it will also have the arduous task of reinstating the prestige and honour of this ancient High Court.