Lasting lessons from the Justice Gangopadhyay episode

In April, after the Supreme Court had withdrawn the teacher recruitment scam petitions from Justice Abhijit Gangopadhyay for speaking to the media about how he would rule in the case, Justice Gangopadhyay passed a suo motu Order directing the Supreme Court's secretary general to send to him the translation of the interview relied on by the Supreme Court. Later that day, the Supreme Court stayed this Order, questioning the high court judge's judicial discipline.

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A controversial Order passed on April 28, 2023 by Justice Abhijit Gangopadhyay of the Calcutta High Court reminds one of the infamous episode of retired Justice C.S. Karnan from 2017.

In his Order, Justice Gangopadhyay has said, "For the sake of transparency, I direct the secretary general of the Supreme Court of India to produce before me the report and the official translation of the interview given by me in media and the affidavit of the registrar general of this court in original, forthwith by 12 midnight today.

"This is required for the sake of transparency, I will be waiting in my chamber till 12:15 in the midnight to get the said two sets in original which were placed before the judges of the Supreme Court today."

Also read: SC withdraws teacher recruitment scam petitions from Calcutta HC judge for speaking to the media about petitioner

Background

A public interest litigation (PIL) was filed before the Calcutta High Court pertaining to the investigation in the matter of the irregularities and corruption with respect to the recruitment of assistant teachers in primary schools of West Bengal through the teacher's eligibility test conducted in 2014.

The case was being heard by Justice Abhijit Gangopadhyay who, in an aired interview, was believed to have commented on the merit of the case. The accused person approached the Supreme Court, raising a plea of bias and unbecoming behaviour of a sitting or presiding judge of the case.

The Supreme Court, in an Order passed on April 17 this year, stayed the direction passed by the Calcutta High Court. The Supreme Court directed the registrar general of the high court to "personally verify from Justice Abhijit Gangopadhyay as to whether he had been interviewed by Suman De of ABP Ananda … and file an affidavit before this court on or before April 27, 2023."

Once the registrar general had filed the affidavit, which included the note prepared by Justice Gangopadhyay, the Supreme Court passed another Order directing the acting Chief Justice of the High Court at Calcutta to reassign the pending proceedings in the case to some other judge of the high court.

The Supreme Court of India has appellate jurisdiction over orders or judgment passed by any court or tribunal under Article 136 (special leave to appeal by the Supreme Court) of the Constitution.

Perhaps the Order sought to uphold the majesty of law, rule out elements of bias or prejudice and allay the fear in the mind of the accused that the court would be prejudicial to their interest as the judge concerned has spoken his mind in an interview.

As a response to the judicial Order passed by the Supreme Court, Justice Gangopadhyay, invoking extraordinary jurisdiction, in a suo motu proceeding passed the direction to the secretary general of the Supreme Court. 

Also read: On case being taken away, Cal HC judge asks SC for record by mid-night; SC stays his order, questions discipline

Subsequently, the Chief Justice of India Dr D.Y. Chandrachud constituted another special Bench on the same day (that is April 28), while suo moto exercising its power, stayed the direction passed by the High Court of Calcutta, and directed the secretary general of the Supreme Court to bring the records.

The Order read, "[O]n hearing the learned Solicitor General of India, it has been rightly pointed out by him 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."

Analysis in light of the dictum in re C.S. Karnan case

This row has refreshed the episode of the then Justice C.S. Karnan, wherein the Supreme Court had punished a sitting high court judge for contempt.

Justice C,S. Karnan versus Supreme Court of India, 2017 judgment remains one of its kinds as the real issue has been identified in the concurring opinion of Justice J Chelameswar as highlighting "two things: the need to revisit the process of selection and appointment of judges to the constitutional courts, for that matter any member of the judiciary at all levels; and the need to set up [an] appropriate legal regime to deal with situations where the conduct of a judge of a constitutional court requires corrective measures— other than impeachment— to be taken."

Also read: Why contempt of court against a sitting HC judge has grave long-term implications

The Supreme Court had expressed its concern about selection and systemic failure of the system to rectify such behaviour of the judges of the constitutional courts who exercise the enormous power of judicial review with a sense of recklessness in following words:

"Our purpose is not to point fingers to individuals who were responsible for recommendation but only to highlight the system's failure of not providing an appropriate procedure for making such an assessment.

"What appropriate mechanism would be suitable for assessing the personality of the candidate who is being considered for appointment to be a member of a constitutional court is a matter which is to be identified after an appropriate debate by all concerned— the Bar, the Bench, the State and the civil society. But the need appears to be unquestionable."

It was also expressed that "mercifully" there are various other instances of conduct of some judges or holders of such high constitutional offices "less known to the public" which "certainly would cause some embarrassment to the system."

So, it can't be said that incidents akin to the present one are an aberration, rather their occurrence is likely to proliferate in the near future.

Another incident related to aberration

Another example of judicial conduct flagged before the Supreme Court of India concerning the High Court of Calcutta is required to be discussed— which may also qualify as 'unbecoming of judicial conduct'.

While considering the fact that a special leave petition titled Rt. Rev. Paritosh Canning & Anr versus Anil Rajkumar Mukherji has been listed 27 times before the division Bench of the High Court, the Supreme Court vide its Order dated January 20, 2023 stated that:

"We would loath to interfere with the working of a constitutional Court like the high court. However, it is a matter of concern if something is listed 27 times and no result follows. We are conscious of the workload of the high courts but then while giving dates there is a court management system which is required to be followed and such a date should be given that the matter is taken up."

However, the concern noted by the Supreme Court of India did not find any favour with the Bench of the High Court of Calcutta. When the petitioner again approached the Supreme Court of India by way of a special leave petition, the Supreme Court passed the following effective Order:

"Six months down the line there is no change of scenario, except for the number of adjournments that have been added to the already unending list of adjournments before that.

"The petitioner had to again approach this court and on April 17, 2023, while noticing its earlier Order as also the fact that it may not be appropriate for us to deal with the issue on merits, this directed that the matter to be placed before the then acting chief justice of the high court so that the matter can be placed before a Bench which can take up the matter urgently and deal with it on merits.

"This Order is stated to have been served in the office of the acting chief justice on April 19, 2023. The matter, however, continued before the same Bench and the same saga continued with adjournments.

"In view of the aforesaid, we have no other option but to draw a conclusion that for whatever reasons, the Bench constituted to hear this matter is unable to attend it."

Despite the Order (of January 20, 2023) by the Supreme Court to hear the matter on merits, the Bench kept adjourning it and the count of adjournment increased from 27 to 40. 

The Supreme Court, in its Order, had further said, "We thus, request the chief justice of the high court to assign the matter to some other Bench which may be able to attend to the matter more expeditiously… Needless to say we would expect the newly assigned Bench to attend to the matter promptly, especially taking into consideration the urgency requirement, the scope of the appeal and the previous saga of adjournments."

Does such judicial conduct on part of the high court fall within the ambit of 'indiscipline' or does it fall short of 'proved misbehaviour or incapacity' in the present set of circumstances?

Hence, the Supreme Court, for recorded reasons, vide its order dated May 18, 2023, directed the acting Chief Justice of the Calcutta High Court to transfer the matter to another Bench for expeditious hearing on merit. 

Press conference by sitting judges of constitutional court– a mark of independence

The constitutional functionaries need to seek periodic mandates from the public to exercise their power over such a large democracy, which requires them to speak directly.

Granted, the judges of constitutional courts usually speak through their judgments, but there is no bar on judges to allay their concerns or fear to the public in good faith, for discharging their duty and respecting their oath and allegiance towards the Constitution of India.

The press conference by four senior-most sitting judges of the Supreme Court of India is an example to be cited with brevity and as a hallmark of independence of judges.

Also read: "We are discharging our duty to the Nation" Justice Gogoi. Supreme Court out of order. [Read the letter]

There have been instances in the United States, where a sitting judge has discussed an ongoing case with the media. The Supreme Court of the United States was seized with the issue as to whether the strip-search of a 13-year-old student is prohibited by the Fourth Amendment in the matter of Safford Unified School District versus Redding.

The court, by an 8:1 vote, held that a stricter standard was applied to the strip-search of a student in this case. During the search, officials required 13 years-old Samantha Redding to expose her breasts and pelvic area.

During the oral argument of this case, several justices showed minimal interest with respect to intrusiveness of the search and comments by one justice about 'exploitation in student locker-room' produced laughter on the Bench.

Justice Ruth Bader Ginsburg felt obliged to explain what she saw as the degrading nature of the strip-search at argument. While the case was still pending, she took the extraordinary step of talking to a reporter named Joan Biskupic and stated that, "it is a very sensitive age for a girl. I did not think that my colleagues, some of them, quite understood."

The press statement by Justice Ruth Bader Ginsburg played a vital role in tilting the approach and conclusion of the case, thus becoming a progressive judgment of that time.

But when such public acts of individual judges are questioned by a party before the court, then the majesty of justice and rule of law must be upheld.

It is important to do so because judicial discipline has to be maintained in the authority of courts. The stay and direction to the acting Chief Justice of Calcutta High Court to reassign the case to some other appropriate judge was passed by the Supreme Court of India in exercise of appellate jurisdiction. Hence, the judicial Order as passed by the high court could be set aside.

The issue as to whether Justice Gangopadhyay could have been heard before such an Order of reassigning the particular case was passed does not arise here. Because from the Orders dated April 24, 2023 and April 28, 2023, it becomes crystal clear that the Calcutta High Court as an institution was represented and filed an appropriate affidavit before the Supreme Court of India.

Laying down a comprehensive code of judicial conduct for the judges

The existing legal gap is yet to be filled by an appropriate authority, as observed in the concurring opinion in re C.S. Karnan judgment was with reference to such behaviour which requires corrective measures— other than impeachment.

It can be safely argued that old methods and solutions like passing of strictures or observations against the judge concerned at appellate stage, insinuation in form of warning while exercising appellate authority and not supervisory authority or even holding guilty of contempt of court requires revisit in today's changing times and emerging situations.

Also read: Mere suspicion can't constitute misconduct, says SC, orders reinstatement of sacked judge

The technology has revolutionised the judicial system and public perception thereto, media reporting and coverage in today's new-age platforms like Twitter, Facebook, YouTube and other such social media avenues are adding to the chaos like in the case of Election Commission of India versus M.S. Vijayabhaskar, 2021, where the Supreme Court rejected the election commission's prayer to restrict the media on reporting the high court's oral remarks against it and said that it is important that the court's proceedings should be made public.

The absence of a code of conduct for judges to have their social media presence vis-à-vis their freedom of speech and expression is also an issue which impacts the vital rights, judicial integrity as well as judicial independence.

Hence, it is felt that there is an urgent need of laying down a self-disciplinary code of conduct for the judicial fraternity by the judges themselves. Obviously, a lead can be taken up by the Supreme Court of India itself, which may act as model guidelines for other high courts to adopt and suitably modify.

Six years have passed since this landmark (Justice CS Karnan) judgment and yet there have been no suggestions or changes in the judicial system to incorporate corrective measures and cover these gaps.

The above discussion further highlights the need to introduce reforms within time. It becomes a pressing need as high courts have wide powers entrusted by the Constitution of India as well as various statutes. 

These recent incidents are also an eye-opener to some intrinsic gaps in the system and the urgent need to work on the same so that rule of law is upheld.