Friday, December 8, 2023

Judge in the dock

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By Sujit Bhar

There was a time when doctors, school teachers and judges were probably the most trusted people in Indian society. This responsibility of trust was big, and each member of those occupations was determined to maintain the value of the trust the public placed in him or her.

In these days of social media justice and instant gratification, that critical element of trust seems to have eroded. Doctors are pressured by their employers and disliked by their patients for the abnormal size of the bills, while teachers are also sandwiched between their employers and the parents of the students.

However, the most critical position is that of judges. The courts are supposed to be the last resort of the common man looking for justice. If doubts creep into this area, then society as a whole is the loser. Certain incidents in the recent past have brought to light how sensitive things can, and have become and how fast perceptions about this noble profession can change.

Not too far back, a lady judge of the Calcutta High Court, Justice Amrita Sinha, was being feted and idolised by the public for her strict handling of an Enforcement Directorate (ED) officer and for even removing him from a case for failing to back up his allegations with correct documents. With the High Court having allowed live streaming, Justice Sinha’s (who opted for live streaming) handling of several very contentious cases, including the alleged recruitment scams in various departments, and cases related to violence in the last panchayat polls of the state were being streamed straight to the homes of Kolkata’s discerning audience.

She removed the ED officer from the case when the latter did not even mention the existence of a bank account of an MP; she had also questioned a Block Development Officer (BDO) over alleged malpractice during the panchayat polls. She openly said that the panchayat poll violence was a shame for the state.

Her popularity grew to such an extent that her followers opened a Facebook page for her, titled: “Pronam Hon’ble Justice Amrita Sinha.”

Then, just the other day, the Supreme Court had to direct the West Bengal CID to continue its probe in a property case after a widow alleged interference by the husband of Justice Sinha.

The case is about an ancestral property, and the apex court has asked the CID of the state to not succumb to “any pressure” and inform the top court if there actually had been any interference.

The order was passed by the Supreme Court bench of Justices Sanjiv Khanna and SVN Bhatti on a petition filed by the 64-year-old widow and her daughter, alleging that Advocate Protap Chandra Dey, husband of sitting Justice Amrita Sinha, was trying to thwart the probe in two criminal cases filed by the petitioners against their relatives related to ancestral property.

The apex court has been serious enough to also direct the West Bengal government to file a status report on the probe in a sealed cover on the next date of hearing in December.

The case

According to the petitioners—the widow and her daughter—a part of the property in question had been handed down to the widow after her father’s death, but her elder brother and his family were allegedly making attempts to throw her out of the property. Their counsel, Advocate Mithu Jain, claims in the plea that the widow was threatened on several occasions to give up the property and had even been physically beaten, which was stated to have been captured by CCTV cameras. Therefore, two criminal cases were filed by the widow against her relatives.

One of the cases involved allegations of criminal conspiracy, causing hurt, cheating, forgery and wrongful restraint, while the other was about allegations of attempt to commit culpable homicide, outraging the modesty of a woman, house trespass, causing hurt and criminal intimidation as well Section 25 of the Senior Citizens Act of 2007.

Under normal circumstances, such a case would not have elicited too much public interest. However, the problem lay in the identity of the advocate engaged by the widow’s relatives.

Advocate Dey is the husband of Justice Sinha, and it has been alleged that Dey has been “using his clout” to exert pressure on the investigating agency, so that the above cases were not investigated properly. It was also alleged that such “pressure” has resulted in investigation in the two criminal cases having been brought to a standstill.

The petitioners then moved the plea before the Supreme Court.

Whatever the outcome of the Supreme Court’s directive, as also of the case, it is clear that the credibility of this High Court judge, lionised by the public, has suffered.

The other incident

This is not a stray case of a High Court judge in a storm. Earlier, another judge of the same court, once deemed strict by the public, had apparently fallen from grace. In April 2023, the Supreme Court ordered two cases related to the 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 the Calcutta High Court bench of Justice Abhijit Gangopadhyay. A month later, the then acting chief justice of the Court, Justice TS Sivagnanam, assigned the cases to Justice Sinha. Later she also began hearing cases relating to the violence during the panchayat polls.

Why was the case taken away from the bench of Justice Gangopadhyay?

The special sitting

On the evening of April 28, a Friday, the Supreme Court bench of Justices AS Bopanna and Hima Kohli, held a special sitting, passing an urgent order of stay on Justice Abhijit Gangopadhyay’s order directing Supreme Court’s Secretary General to produce the transcript of his “controversial” interview on ABP Ananda’s (a Bengal television channel) show Ghanta-Khanek Songe Suman.

During the interview, Justice Gangopadhyay had apparently passed some comments against Trinamool Congress leader Abhishek Banerjee, related to the West Bengal teachers’ recruitment scam case. It was Justice Gangopadhyay who was handling the case at the time. There was a transcript of the entire interview, prepared by the Interpreting Officer of 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 of India DY Chandrachud and Justice PS Narasimha.

There is a fine administrative line that exists between the chief justice of a court and brother judges of that court. While on matters of law every judge is said to be equal, the chief justice of a court is always the master of the roster and this has been reiterated time and again by the Supreme Court.

Hence, even accepting that a High Court judge has enough power in matters of law, when the judge of a lower court directs the Supreme Court’s Secretary General, the highest judicial officer on the country, to furnish certain details within a given deadline, it is technically bypassing the power of the chief justice of India as the administrative head of the Supreme Court. The Supreme Court Secretary General’s office is directly overseen by the chief justice of India.

The special sitting ensued, because this action by Justice Gangopadhyay led to concerns on whether he had exceeded his jurisdiction and violated the judicial discipline applicable to the judges of the higher judiciary.  

It is one matter that Justice Sinha has become the other judge involved in this aspect, though the scam they have both been hearing isn’t part of this issue. Even the case of Justice Gangopadhyay having earlier directed the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED) to question the ruling Trinamool Congress party national general secretary, Abhishek Banerjee is not incidental to the larger picture of judicial discipline.

The Supreme Court bench of Justices Bopanna and Kohli passed the order after taking note of Solicitor General Tushar Mehta’s submission that, “an order of the present nature ought not to have been passed in a judicial proceeding, more so keeping in view the judicial discipline expected to be maintained.”

Another crucial question comes to the fore. While the CJI holds administrative powers over the top court, is it natural for the CJI to use this power to interfere with the administrative powers of a High Court chief justice? It is argued that High Courts in India enjoy equal powers of judicial review like that of the Supreme Court, and can hear and decide constitutional questions as well. Is there an administrative oversight too?

Interestingly, High Courts enjoy considerable autonomy in their functioning. So was it normal for the CJI to issue administrative directions to the High Court?

Those are technicalities of administration. However, what has transpired as being of crucial importance is the fact that public perception of the justice system of the country may be changing, and such incidents do not help. Judicial discipline and propriety is of immense importance in projecting before the people the discipline associated with such exalted offices.

As Lord Hewart, the then Lord Chief Justice of England laid down in the case of Rex vs Sussex Justices: “Justice must not only be done, but must also be seen to be done.”

The optic is important. And in every action of the justice system and of the judges, this remains the key issue.

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