By Syyed Mansoor Agha
Justice Sanjib Banerjee, Chief Justice of Madras High Court, left Madras to Shillong to take over as Chief Justice Meghalaya High Court on November 18 graciously but with a heavy heart. He skipped formal farewell. Instead wrote an emotive note. Addressing his colleagues at the Bench, he wrote, “I apologise. First, for being unable to last the distance and second, for not saying goodbye in person.” And to all the staff, “I appreciate your fullest cooperation. My regret is that I could not completely demolish the feudal culture in which you serve.”
The Judge, known for his fearless and outspoken style of functioning, got his transfer orders in a huff just after a short term of 11 months and so raised many eyebrows. A year back in December 2020, Justice Banerjee, then a Senior Judge at Calcutta High Court, was considered most suitable for the post of Chief Justice at Madras HC, the 4th largest High Court in the country. His tenure at Calcutta HC was adjudged remarkable. After the news of his transfer broke, several senior lawyers in a letter to members of SC Collegium termed it “inexplicable that in ten months, the Collegium should revise its opinion and recommend that such a ‘competent, fearless judge and an efficient administrator’ should be transferred to a court where any avenue for utilising his vast experience would be severely limited.”
Justice Banerjee had assumed the office of CJ, Madras HC on January 4, 2021. The court has a sanctioned strength of 75 Judges plus a bench in Madurai. Now he is transferred to an HC with just four judges. The Madras HC handles around 35,000 cases yearly while Meghalaya HC hardly registers 70-75 cases monthly. It is why this transfer is being doubted as ‘punitive’ and under external reasons, but people wonder for what?
TRANSFER OF JUDGES
Transfer of judges is not unusual. As the principle laid down by Supreme Court, it should be, “in the public interest or for better administration of justice.” However, if a judge is transferred for other reasons, it becomes worrisome. In this case, worrying is severe as, under the present CJI, expectations were high against the tending manoeuvres to strengthen executive grip over the judiciary. On the face, it looks that Justice Banerjee had to pay for his independent, outspoken, and unbiased style of functioning. His several remarks should have certainly irked power-hungry politicians who are not supportive of rule of law and unbiased justice.
In our system, the President of India signs the transfer order of a judge, under the advice of the Government. Recommendation of SC Collegium headed by CJI is a prerequisite. In this case, the SC collegium recommendation was signed on September 16 but came in the public notice on November 9. This opacity raised alarming bells. Arguing reconsideration of its proposal, two representations were made to the Collegium. One was endorsed by 31 Senior Counsels and the other by 237 Lawyers of Madras HC.
The Senior Counsels argued that the Chief Justice “has discharged his functions both in the administrative as well as in judicial side to the best of his capabilities bringing honour to the office he held…. he has disposed of a few thousand cases even during the COVID-19 pandemic.”
It further said, “The orders were predominantly dictated and delivered in the open court. When this is a fact…, we are unable to fathom the reasons for his sudden transfer to another court.”
It reminds us that “Constant transfers of judges had left the HC in a state of constant flux. Such short-lived tenures at the apex of the court’s hierarchy bode ill for the health of the institution.”
It noted that a new CJ needs around a year to understand the system and needs of a particular court but in the last three years, the Madras HC had three CJs apart from Acting CJs for brief periods. The memorandum stressed, “We are not aiming to support an individual but plea to strengthen the health of the institution.”
Another joint representation by 237 Lawyers also covered points raised by the Senior Counsels. On the onset, it questioned the basis of such an abrupt transfer within 11 months of posting. It questioned whether this action is in “public interest” or “for the better administration of the justice system.” It also mentioned the recent elevation of one Judge and transfer of two other senior judges and now the CJI. Obviously, it is not good for HC health.
They asked why a competent, fearless judge and an efficient administrator of a large High Court should be transferred to a small Court. Expressing apprehension of arbitrariness, the memorandum indicates the probability of some external factors. Observers feel that such a penetration in the process is bound to damage the reputations and integrity of a judge and damage the image of the judiciary.
There are several instances that earn headlines. As Mr. V. Venkatesan, Editor of The Leaflet reminded, Justice Banerjee had admonished EC for the failure to stop huge election rallies (held by right-wing party) against Covid protocols. He had questioned why murder case should not be filed against EC?” The Supreme Court had later termed this remark as ‘harsh and inappropriate’.
CJ Banerjee has also criticised the Government for apathy and mismanagement during the Covid-19 pandemic. A bench headed by Justice Banerjee found the allegation credible that BJP had misused Aadhaar data for electioneering. Significantly, he had also red-flagged the oversight mechanism under IT Rules, 2021 to control the media by the government, saying ‘it may rob the media of its independence’, thereby posing a threat to democracy. There are several instances when his actions pinched the power-hungry. He was also said to work to whip out corrupt practices in the courts and feudal practices.
AN OUTSPOKEN CRITIC
These actions of his gave the impression that he is an “outspoken critic of right-wing policies and a staunch defender of the constitutional basis for secularism”. It was noted that his observations during the court hearings were often felt uncomfortable in Delhi.
Such doubts find fillip when Advocate R C Paul Kanagaraj, Chief of the Tamil Nadu BJP Legal Wing, strongly came out in support of Justice Banerjee’s transfer. Some other quarters related to right-wing were also irked by these resolutions opposing the unceremonious transfer of a noted Judge, wrapped in a coercive and vindictive shroud.
NOT A SOLITARY REAPER
Justice Sanjib Banerjee is not a solitary reaper of this crop considered ‘humiliation and vendetta’ of Judges at the hands of the executive. We remember Justice Jagmohan Lal Sinha of Allahabad HC, who invalidated (12 June 1975) the 1971-election of the then PM Indira Gandhi to the Lok Sabha. That was followed by the imposition of Emergency. Notably, Justice Sinha remained deprived of his due for life.
The record of the present regime is studded with multiple occasions. It is felt often that in matters of appointments, promotions, and transfers, the primacy of CJI and Collegium is being hampered with executive priorities. Outspoken judges, who upheld rule of the law or passed orders distasteful to the regime, faced ‘punitive-like measure’. A judge was transferred instantly like Justice Dr. S. Muralidhar was removed from Delhi HC at midnight (February 26, 2020) when he had ordered registering of FIRs against right-wing leaders for hate speech.
Another case is of Justice Jayant Patel. As Acting CJ of the Gujarat High Court, he had ordered CBI investigation into the Ishrat Jahan encounter case which led to the arrest and charge-sheeting of senior State Police Officers, known as the eyes and the arm of the then state government. To deprive him of a fair chance to become Acting CJ once again, he was ordered a transfer from Karnataka HC where he was in 2nd position to Allahabad HC on position 3, while the then CJ S K Mukherjee was due to retire.
Transfer of Justice V.K. Tahilramani from Madras HC to Meghalaya in 2019 also earned headlines. It was alleged that she became a victim of her act of upholding the conviction and life imprisonment of 11 accused in Bilkis Bano gang-rape case during the Gujarat carnage 2002. She had set aside the acquittals of seven accused, including policemen and doctors. She then tendered her resignation.
There are some other unkind instances also, like in the case of Justice Akil Kureshi, in spite of his No. 2 position in high court judges, the Government declined SC Collegium recommendations to elevate him as SC judge. It was alleged that it had roots in his order in 2010 granting CBI custody of then Minister of State (Home) of Gujarat in the Sohrabuddin encounter case. Secondly, in 2011, a Bench headed by him upheld the then Gujarat governor Kamla Beniwal’s decision to appoint Justice (Rtd) R A Mehta as the state’s Lokayukta, ignoring the opposition of CM Modi.
[The writer is Chairman Forum for Civil Rights. mail: [email protected]]