Legal Eagle: Maverick Judges Are Vital For Justice Delivery

Legal Eagle: Maverick Judges Are Vital For Justice Delivery

All judges must deliver justice which itself is a chimerical concept but their private opinions and religious beliefs affect their judgments

Olav AlbuquerqueUpdated: Thursday, February 08, 2024, 10:24 PM IST
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There are contrasting judges whose views clash at judges’ conferences but outwardly, they maintain a semblance of composure and unity. There are very few pro and anti-government judges but the vast majority of judges are neutral because they swear to uphold Constitutional morality as opposed to religious morality. All judges must deliver justice which itself is a chimerical concept but their private opinions and religious beliefs affect their judgments.

In his passion to deliver justice, Justice Abhijit Gangopadhyay of the Calcutta High Court has ignored a two-judge bench verdict staying his order directing a CBI probe in a medical colleges’ admission scam. A bench headed by Justice Soumen Sen stayed Justice Gangopadhyay’s order. A five-judge bench of the Supreme Court led by CJI Dhananjay Chandrachud heard this unprecedented dispute between judges where a judge who is 22nd on the seniority list of the Calcutta High Court has accused the fourth seniormost judge of staying his order without annexing a Memo of Appeal mandated by law pointing out the flaws in Justice Gangopadhyay’s order.

For the uninformed, Justice Abhijit Gangopadhyay is a controversial judge who does not mince words and has complained to the CJI and his own Chief Justice about his hands being tied while taking on ministers in the government who take bribes. He divulged a lawyer who visited him in his chamber on behalf of a top politician in West Bengal, after which five division benches of the Calcutta High Court recused from hearing the school admissions scam.

The same judge passed strictures against the West Bengal School Service Commission (WBSSC) for alleged corruption in the recruitment process and allowed journalists present in the courtroom to use their mobile phones to video record the proceedings. This provoked the advocates to protest. One of them insulted the judge saying his face was visible on Calcutta news channels from morning to night, prompting the judge to upbraid the advocate.

On April 13, 2022, the Calcutta Bar Association passed a resolution to boycott Justice Gangopadhyay’s court. On May 18, Justice Gangopadhyay directed former Education Minister Partha Chatterjee to appear before the CBI in connection with corruption in the teachers recruitment scam which finally led to the Enforcement Directorate arresting this cabinet minister and secretary general of the TMC after finding Rs 21.9 crore in cash inside his flat. His aide Arpita Mukherjee was also arrested.

In September 2022, Justice Gangopadhyay instructed the West Bengal School Service Commission (WBSSC) to replace illegally appointed school teachers with eligible waiting list candidates. In July 2023, he instructed the West Bengal School Service Commission to publish the names of 907 school teachers who were illegally appointed. And the Calcutta High Court reportedly dismissed Mamata Banerjee’s nephew, Abhishek Banerjee’s contemptuous remarks about “certain judges” who indiscriminately ordered CBI probes.

This is commendable because, unlike Justice CS Karnan who was abruptly shunted from the Madras High Court to the Calcutta High Court where he went underground after making allegations against many brother judges, one of whom he accused of buying an LL.B degree, Justice Gangopadhyay is circumspect. Though unrelenting in his quest to deliver justice.

So, we have maverick judges who get mired in controversies, ranging back to the three judges’ press conference in 2018 on the lawn of Justice Jasti Chelameshwar’s official residence where the judges alleged that a few sensitive cases of interest to the government were being assigned to benches sensitised to what the government needed.

The three judges were alluding to Justice Arun Misra who wrote 132 judgments while in the Supreme Court but dismissed sensitive cases against the government such as those filed by Common Cause alleging bribes offered to top government ministers. Justice Misra said top “Constitutional functionaries could not be investigated” based on “loose papers” relied upon in the petition. His dismissal of IPS officer Sanjiv Bhatt’s petition has resulted in the police officer undergoing life in jail. At an international conference of judges, Justice Misra expressed his adulation for Prime Minister Narendra Modi. There is nothing wrong in this except that the government is the biggest litigant in the Supreme Court.

If we run the records backwards to the year 1973, we have another CJI Ajit Nath Ray whom Indira Gandhi appointed after superseding three judges of the Supreme Court. They were JM Shelat, AN Grover and KS Hegde. He was the lone dissenter in the famous Kesavananda Bharati case where the basic structure doctrine was formulated, and went so far as to set up another bench to review the decision which he ignominiously had to dissolve. He was notorious for allegedly phoning Indira Gandhi to ask her opinion on the simplest matters. Like Justice Arun Misra, he falls in the category of pro-government judges.

Another such former CJI was AN Ray who was rumoured to have phoned the then Prime Minister Indira Gandhi to elicit her views on sensitive government matters yet to be heard. There are also deeply religious-minded judges like Justice Mahesh Chandra Sharma who declared in 2017 that Lord Krishna wore the peacock’s feathers on his head because it was a celibate bird and the peahen drank the tears of this celibate bird to get pregnant. He said both the peacock and the cow were “pious animals” and sought an amendment in the Indian Penal Code to impose the death sentence on those who killed the holy cow.

Finally, we have agnostic judges like Justice Ajit Shah who began as a judge of the Bombay High Court but went on to become the chief justice of the Madras and Delhi high courts before his hopes of being elevated to the Supreme Court were unceremoniously dashed despite a brilliant judgment he wrote about legalising consensual sexual intercourse in private between same-sex couples.

The former CJI Ranjan Gogoi lambasted Justice Ajit Shah for projecting himself as a human rights activist after not being taken to the Supreme Court for allegedly clandestinely allowing a property to be sold “for a song” when he was the chief justice of the Madras High Court. Another angle was that the erudite judge, Ajit Prakash Shah, allegedly knew a Bollywood actress who was involved in the property imbroglio.

Olav Albuquerque holds a PhD in law and is a senior journalist and advocate at the Bombay High Court

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