• A Calcutta High Court Judge was moved out of a case allegedly because of a TV interview. Thus, what management and constitutional issues arise? Is being interviewed at a media conclave equivalent to a TV interview? Reflect and decide.

Corruption in the school jobs for bribe scam in West Bengal created national news.  

“In the past one year, Justice Abhijit Gangopadhyay (Ganguly) gave at least ten orders directing the Central Bureau of Investigation (CBI) to investigate irregularities in the recruitment carried out by West Bengal School Service Commission. The investigation in the SSC recruitment scam has led to the arrest of former Minister Partha Chatterjee and recovery and seizure of movable and immovable property worth ₹103.7 crore.” The Hindu

Things took an interesting turn when Trinamool Congress (TMC) Member of Parliament Mr A Banerjee, around April 25, brought to the Supreme Court’s (SC) notice a September 2022 television interview by Justice Ganguly and its transcript in which the Judge spoke about the case pending before him.

Thereafter, “At around 12.15pm on April 28, a bench led by Chief Justice of India (CJI), ordered that the acting chief justice of the high court shall transfer the cases relating to alleged irregularities in the recruitment by West Bengal School Service Commission from justice Gangopadhyay to some other judge in view of a report received from the registrar general of the high court.” Source Hindustan Times

The same report states that, “Hours after the SC order on Friday, justice Gangopadhyay initiated a suo motu proceeding, calling for the official transcript of the interview to be placed before him by the secretary general of the Supreme Court.” Did the learned judge err or did it become an ego issue then.  

The report further states, “Justice Gangopadhyay’s order in turn prompted the Supreme Court to initiate a suo motu proceeding to stay the operation of his order. A special bench comprising justice AS Bopanna and Hima Kohli sat at 8 pm and held that “judicial discipline” required justice Gangopadhyay to desist from passing the impugned order. The bench stayed his order seeking a report from the secretary general and made this direction absolute.” Is this majoritarianism? 

Simply put, the SC directed transfer of all cases on the recruitment scam from Justice Ganguly to another judge as may be decided by the Chief Justice of the Calcutta High Court.

Some points worth reflecting upon – 

1. Does the Indian Constitution make a High Court subordinate to the orders of the Supreme Court in such matters? 

In case of Centre and State governments, Article 356 has provisions in case of failure of constitutional machinery in States. Here the President, on receipt of report from the Governor of a State or otherwise, if satisfied issues a proclamation etc.

Does the equivalent of Art 356 exist for the Higher Judiciary? Constitution makers might never have visualised a situation as is the case with Justice Ganguly.

2. Could the message of alleged breach of discipline by Justice Ganguly be delivered by the SC without transferring of cases to another judge?

Yes. There are quieter, more effective ways of dealing with such situations where a fellow judge is not publicly embarrassed. For e.g. SC sends two trial court judges to judiciary academy When the Indian Army does a Flag March it is a display of power, not its use, all get the message.    

If the CJI had spoken against about such an interview soon after it was aired around September 2022 things might have been perceived differently. Or a simple call to Justice Ganguly or the acting Chief Justice would have been enough. After all, power of the CJI’s office is known so a display of power could be avoided.

 Also read   Press Conference by SC Judges-What was said and left unsaid

What happened could have long-term consequences on the case and working of High Courts across India.

3. Does giving a Television Interview by a Judge of the Higher Judiciary amount to indiscipline? Are there any written and codified rules to that affect? Have these rules been passed by the Collegium, CJI or appropriate authority? If not such action could be perceived as subjective and arbitrary?

Before his/her appointment is the Judge required to accept adherence to such rules? Perhaps, the Law Ministry can answer this question because they issue appointment letters to SC/HC judges.

4. A reading of the 2002 Bangalore Principles of Judicial Conduct does not state there is a bar on giving interviews to TV channels.

Even if there is one any observer of the print and electronic media in India will know there is a sea-change between 2002 and 2023. So whose duty was it to update the Principles of Judicial Conduct? Law Ministry or SC!

I am against judges giving media interviews. However, Judges give talks, public speeches and attend media conclaves. Views stated make headlines. Thus, all can sense the thinking of the higher judiciary on matters, current and future.

The moot point is can talks and media interactions be construed to be similar to a TV interview? This matter needs informed public debate.

“A huge amount of cash was recovered from a close aide of a West Bengal minister-Credit Hindustan Times.”

5. What should a Judge of the Higher Judiciary do when his orders are publicly attacked by politicians? Esp. in a state like West Bengal when anyone opposing the ruling party be it Left or TMC is criticised? My view is let the orders speak. 

6. What was so damaging in the interview that resulted in a case transfer? Read, excerpts of Justice Abhijit Ganguly’s interview to Suman De of ABP Ananda , and decide.

“Suman De: You have been heavily criticised by CM Mamata Banerjee and (Trinamool MP and Mamata's nephew) Abhishek Banerjee, who often accuse the judiciary of being politically biased. How do you see this?

Justice Ganguly: I don’t like these types of statements at all. When Mr. Abhishek Banerjee first criticised (me) on a public platform, I was in Ladakh. I was very angry with this. Some of my works were also mentioned in the comments. I thought of summoning Abhishek Banerjee...taking some drastic steps. I was determined. But on my return to Kolkata, I saw a suit had already been filed with the division bench, which was not ready to give so much importance to such people (read Abhishek Banerjee).

Suman De: So what was your stand then?

Justice Ganguly: I have a different stand on this issue. If I hear any such comment in the near future involving me wrongfully, I will take strict action which they can never imagine. Those who pass on such comments don’t even know what can be done within the limits of the law. 

Suman De: But there was an event where you were present and CM Mamata Banerjee said a part of the judiciary system is biased…

Justice Ganguly: Yes. I always believe that strict action should be taken when someone points out any judge and says something degrading. I am always in favour of freedom of speech, but there must be certain lines that should not be crossed so people don’t lose faith in the judiciary. People will then say this judge is biased towards BJP, or that judge is close to TMC, and some other favours CPM. This is really unwanted. Is this how a leader should speak? I got a clipping of Abhishek Banerjee’s speech yesterday. Nothing was said about me. But he said BJP workers and leaders do get favour in the Calcutta High Court and get bail after doing any offence because some judges have the BJP backing.” 

“What kind of a comment is this? If I summon him (Abhishek Banerjee) and ask him to prove his words, he can prove nothing. He will be sent behind the bars for three months. He can do nothing. Yes, I can be killed later but I don’t care.” End of interview quote. 

Comments must be placed in context or run the risk of being misunderstood. A Judge openly expressed fear of being killed speaks volumes of law and order in the state.  

Sometimes your opponents provoke you with their statements and you respond with a rejoinder. That is when you fall into their trap. Let your karmas speak.

If someone had petitioned Justice Ganguly to also order a probe of corruption in similar recruitments during Left Rule, say from 2005 onwards, would the TMC have reacted differently!

7. Transferring the SSC scam case to another high court judge is a way of SC’s expressing displeasure. 

However, note that earlier “several Division Benches of the High Court recused themselves from hearing petitions related to the SSC recruitment scam where orders have been issued by Justice Gangopadhyay.” Source The Hindu

Given the political stakes in the SSC recruitment scam, TV visuals of money seized from a residence and the environment of violence it would be difficult to find a Judge who will take up this case and to its logical conclusion? Plus a new judge will also take months to be seized of all matters concerning the case.

Not much is known if those responsible for killing and rapes post the 2021 West Bengal poll results have been arrested and convicted!

If subsequent to the appointment of a new judge the arrested TMC leader gets bail or illegal recruitments are regularised the common man shall lose faith in the judiciary. 

Independence of Judiciary is important. However, judicial reform, transparency and accountability are equally important. 

If justice is not given the deserving candidates, under the West Bengal School Service Commission, may loose out a valuable opportunity.

The purpose of this article is to solely provoke thought and not cast aspersions or doubts on any individual/organization or judiciary. Errors if any are unintended and without malafide intent.

Also read Retd Justice Karnan’s battle with the SC

Author  is a senior Chartered Accountant and ex Hindustan Levers.

Picture of notes & caption is courtesy Hindustan Times. For full pic caption click here

This article must not be republished without written permission of www.esamskriti.com

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