Five-judge SC Bench to hear another Justice Gangopadhyay controversy

In another shocking controversy from the Calcutta High Court, Justice Abhijit Gangopadhyay has called an Order of a division Bench illegal and cast aspersions on the motives of a fellow judge. The Supreme Court will hear the matter today after taking suo moto cognisance.

—

TODAY, the Supreme Court will hear a shocking matter of judicial brouhaha at the Calcutta High Court where a judge called the Order of a division Bench illegal and cast aspersions on the motives of a fellow judge of the high court.

A five-judge Bench of the Supreme Court led by the Chief Justice of India Dr D.Y. Chandrachud and also comprising Justices Sanjiv Khanna, B.R. Gavai, Surya Kant and Aniruddha Bose will hear the matter after taking suo motu cognisance of it yesterday.

On January 25, Justice Abhijit Gangopadhyay, who is not unknown to the controversy, declared an Order passed by a division Bench of Justices Soumen Sen and Uday Kumar as wholly illegal and said that it must be ignored.

The Order came despite the Supreme Court's Order of last year in the context of the alleged teacher recruitment scam, in which the court had said that it expected Justice Gangopadhyay to maintain judicial discipline.

Justice Gangopadhyay not only declared a division Bench's Order illegal but went on to cast aspersions on Justice Sen, accusing him of "acting for a political party in the state".

What happened at the Calcutta High Court?

Justice Gangopadhyay's original Order: Lack of prayer cannot deter court's writ jurisdiction

On January 24, Justice Abhijit Gangopadhyay directed the Central Bureau of Investigation (CBI) to investigate a "larger picture of corruption" concerning the allegations that fake reserved category certificates are issued to fraudulently ensure admission of candidates in medical colleges.

Justice Gangopadhyay remarked: "When a scam is peeping its head, it is the duty of the court to pass appropriate Order for a thorough investigation in the matter irrespective of whether the writ petitioner has prayed for a CBI inquiry or not."

"In a writ application where a corrupt practice is apparent, the prayer or not of a petitioner cannot act as a deterrent in the exercise of a writ court's jurisdiction. Therefore, even without the prayer of the writ petitioner, this court can pass an Order for a thorough investigation into the matter," he added.

Later in the day, the Advocate General of West Bengal mentioned the matter before the division Bench of Justices Sen and Kumar, with an oral prayer for a stay of the CBI investigation in respect of the alleged fake caste certificates on the ground that the state government was not provided an opportunity to rely on a bunch of the documents which proved that it had taken all reasonable steps towards ensuring a fair investigation into the matter.

The Advocate General also submitted that the process of verification of the fake caste certificates had commenced much before the filing of the writ petition and the state government had already detected a large number of such certificates and cancelled them.

He apprised the division Bench of the first information reports (FIRs) lodged against the erring officials. He also informed the court that departmental proceedings had been initiated against them.

The Advocate General also argued that Justice Gangopadhyay did not allow them time to submit an affidavit regarding these steps, which would have established that there was no need to hand the case over to the CBI.

Division Bench's Order: Court cannot travel beyond the pleadings

Based on the arguments made by the Advocate General, the division Bench headed by Justice Sen observed that unless there was a prayer in the writ petition for a CBI investigation or a case was made out for a CBI investigation, the right of the state government to conduct a fair and impartial investigation through its agencies could not be lightly interfered with as it would result in disruption of the cooperative federal structure of the country.

"Unless the autonomy of the state government to investigate the issue is decided against the state government, no such direction could have been passed. Moreover, the state government wanted to demonstrate the steps taken by it with regard to the complaints received by it regarding issuance of fake caste certificates and the said investigation is still continuing.

"A bunch of documents appears to have been filed before the learned single judge and have been placed before this court. We feel that those documents should be allowed to have been filed by way of an affidavit and thereafter whether there is any requirement of any CBI enquiry notwithstanding any prayer is made in the writ petition is to be assessed. There is no pleading in the writ petition for a CBI enquiry. The court cannot travel beyond the pleadings," the Bench remarked.

The division Bench was then informed that Justice Gangopadhyay's Order was unavailable on the server.

Eventually, Justice Sen ordered a stay of two weeks on the directions passed by Justice Gangopadhyay subject to an undertaking given by the Advocate General to file a memorandum of appeal and the stay petition with or without the certified copy or server copy, if not available, by reproducing a correct summary of the Order, to be filed by 4.30 p.m. on January 24.

Justice Sen directed to list the matter on January 25. His Bench also ordered the Registrar General that information be sent to the CBI that they need not have an office present in the court on the next day at 2.30 p.m. as directed by Justice Gangopadhyay.

Justice Gangopadhyay's outburst

The next day, on January 25, Justice Gangopadhyay declared the order passed by the division bench "wholly illegal".

He remarked that it was clear from the Order of the division Bench that when it stayed his Order, there was neither any memo of appeal nor any impugned Order before the court.

"No rule has been shown to me that an appeal can be preferred and the Order can be passed thereon in this high court without the impugned Order and without a memorandum of appeal. Today, I have been handed over a memorandum of appeal," Justice Gangopadhyay said.

Justice Gangopadhyay then remarked that he was going to do something unusual but not doing so would be failing his judicial duty.

Then he went on to claim that a few days earlier, he was told by Justice Amrita Sinha of the same high court that Justice Soumen Sen called her to his chamber on the last day before vacation and in the manner of a political leader, he dictated three things:

"i) Mr Avishek Banerjee [General Secretary of All India Trinamool Congress (TMC) and nephew of West Bengal Chief Minister and Supremo of the party Mamata Banerjee] has a political future, he should not be disturbed.

1. ii) Live-streaming shall be stopped in Justice Amrita Sinha's court. 

iii) The two writ petitions before Justice Amrita Sinha, where the name of Mr. Avishek Banerjee is involved, are to be dismissed."

Justice Gangopadhyay claimed in his Order that Justice Sinha had intimated this to him over the telephone during the vacation. He claimed that Justice Sinha had also told him that she had conveyed the information to the Chief Justice of the high court who had conveyed it to the Chief Justice of India.

Justice Gangopadhyay went on to comment that Justice Sen was acting clearly for some political party in this state and, therefore, the Orders passed in the matters involving the state government were required to be relooked if the Supreme Court thinks so.

Since the Justice Sen-led Bench had also quashed the FIR registered by the CBI in the case, Justice Gangopadhyay accused him of advancing his personal interest of favouring the political party in power in the state. Justice Gangopadhyay termed Justice Sen's actions as "tantamount to misconduct".

Justice Gangopadhyay then brought up the issue of the impending transfer of Justice Sen to the Orissa High Court. He said he did not know how a judge who has been under an Order of transfer for more than two years is acting here as a judge defying the Supreme Court Collegium's recommendation.

"Who are the persons behind him, who are saving him from such transfer whereby the Order of the Supreme Court Collegium can be ignored while the other judges have been transferred by the same recommendation?" he asked.

It may be noted that the collegium recommendations are given effect by the Union government.

Finally, Justice Gangopadhyay held that the Order passed by Justice Sen's division Bench quashing the FIR was not valid because it was a continuation of an appeal void ab initio and he had acted against the law and in his own interest.

He directed that the FIR should remain intact because Justice Sen's division Bench's Order was wholly illegal and had to be ignored, adding that the CBI should start acting by investigating the matter.

Past controversies

In April last year, a Supreme Court Bench of CJI Chandrachud and Justice P.S. Narasimha had withdrawn petitions concerning the alleged teacher recruitment scam in West Bengal from Justice Gangopadhyay for giving an interview to the media in which he had expressed displeasure at certain comments made about the judiciary by the Abhishek Banerjee, and warned that he would rule against Banerjee in relation to the scam.

Hours after this Order, Justice Gangopadhyay passed a suo motu Order directing the Secretary General of the Supreme Court to produce before him the official translation of the interview given by him which was sent to the Supreme Court by the Registrar General of the high court and relied upon by the Supreme Court for its ruling.

In his Order, Justice Gangopadhyay directed the Secretary General of the Supreme Court to comply with his Order by 12 midnight that day, saying that he would be waiting in his chamber till 12:15 a.m. to get the original copies of the documents placed before the Supreme Court.

Later in the evening, at around 8 p.m., though, a division Bench of the Supreme Court comprising Justices A.S. Bopanna and Hima Kohli stayed the Order by Justice Gangopadhyay.

In its Order, the Bench opined that such an Order "ought not to have been passed in a judicial proceeding, more so keeping in view the judicial discipline expected to be maintained."

At around 9:30 p.m., Justice Gangopadhyay chose to address the press and calmly stated that he accepted the decision of the Supreme Court.

When asked if he was feeling down, he answered in the negative, stating that his mood was not bad. He also said, somewhat cryptically, that, "I guess other matters may also be taken away from me."

While emphasising to the press that there was nothing 'personal' involved in the matter, he firmly stated that he would neither run away nor back down from continuing his fight against "durneeti" ('bad policy').

Last month, the Calcutta High Court Bar Association passed a resolution urging the Chief Justice of the high court to withdraw judicial work from Justice Abhijit Gangopadhyay after he sent an advocate to civil prison from open court.

Justice Gangopadhyay had declared the advocate, Prosenjit Mukherjee, guilty of contempt of court. Mukherjee was declared guilty of contempt of court merely for showing Justice Gangopadhyay an Order of a division Bench that had modified an Order passed by Justice Gangopadhyay.

A division Bench of the high court assembled late evening that day after advocate Mukherjee sent a letter to the court assailing the Order passed by Justice Gangopadhyay.