New Delhi: The transfer of Madras High Court Chief Justice Sanjib Banerjee to the Meghalaya High Court has caused a stir over the last few days, with questions being raised on whether it was a “punishment transfer”.
Justice Banerjee enrolled as an advocate in November 1990 and began practicing principally in the Calcutta High Court, as well as the Supreme Court. He was elevated to the bench as a judge in June 2006, and took over as chief justice of the Madras High Court on 4 January this year.
However, just eight months later, the Supreme Court Collegium recommended his transfer. The decision was taken in a Collegium meeting held on 16 September, but the resolution was published only on 9 November. The Centre notified his transfer on 15 November.
Ever since the news of the transfer, several senior advocates, the Madras Bar Association (MBA), the Madras High Court Advocates Association (MHAA), and even a retired Madras High Court judge, Justice K. Chandru, have raised questions about the propriety of the decision.
The last time such an incident occurred was in 2019, when then Madras High Court Chief Justice V.K. Tahilramani was transferred to the Meghalaya High Court after a year in office. The judge resigned soon after the Supreme Court Collegium refused to reconsider its decision.
More than 200 lawyers from the Madras High Court wrote to Chief Justice of India N.V. Ramana about Justice Banerjee’s transfer, highlighting the “secrecy” around the Collegium’s decisions and demanding to know the reasons behind the recommendation for the transfer.
They said that several orders upholding constitutional rights and values of free speech, secularism, free and fair elections, the right to health and state accountability by Justice Banerjee might have earned him the “ire of those in power.”
From pulling up the Election Commission and holding it “responsible” for the second wave of COVID-19, to ordering a probe into whether the Puducherry unit of the Bharatiya Janata Party (BJP) used Aadhaar data to send bulk text messages for election campaigning, to repeatedly questioning the central government for its management of the pandemic, Justice Banerjee made the news several times over his 10-month tenure.
‘Should perhaps face murder charges’
On 26 April this year, a bench comprising Justice Banerjee and Justice Senthilkumar Ramamoorthy lambasted the Election Commission of India (ECI) for “not stopping political parties” from violating Covid-19 protocols during their campaign rallies for Assembly polls earlier this year.
Justice Banerjee was quoted as saying that the poll watchdog “is singularly responsible for the second wave of COVID-19” and that its officers “should be booked on murder charges probably”.
The commission then moved the Supreme Court against the observation, saying that the comment was “uncalled for, blatantly disparaging and derogatory”.
In its 6 May judgment on the ECI’s appeal, the Supreme Court said the question of expunging the observations did not arise since these were not a part of the formal order. However, it did assert that the “remarks of the High Court were harsh” and the “metaphor inappropriate”.
In April, the High Court had also conducted a special Sunday sitting, disapproving a prohibitory order under Section 144 of the Code of Criminal Procedure, issued in Puducherry on behalf of the ECI. The court was hearing a PIL filed by R.Rajangam, Puducherry unit secretary of the Communist Party of India (Marxist).
A bench led by Justice Banerjee then rapped the poll body for not giving any “cogent reason for imposing restrictions on citizens’ movement and how citizens may choose to go about their business”.
Calling the ECI’s order “facetious”, the bench asserted that “there cannot be any authoritarian regime possible in the country nor any regimentation of the citizens or their lives”. It then asked the ECI to issue a clarification that the order “will not stand in the way of citizens going about their normal business and chores and even gathering for private functions, if only to celebrate Sunday evening or Monday afternoon”.
‘Serious breach by BJP’
Days before the Puducherry Assembly elections in April, the Madras High Court directed the Unique Identification Authority of India (UIDAI) to probe whether the Puducherry unit of the BJP had used Aadhaar data to send bulk text messages for election campaigning.
The bench headed by Justice Banerjee refused to accept the BJP’s contention that it had obtained the mobile numbers through door-to-door campaigns over a period of time by party workers.
“There appears to be a serious breach by the sixth respondent political party (BJP) in how it conducted its campaign in Puducherry for the forthcoming Assembly elections,” the court order said.
Justice Banerjee’s bench also pulled up the Centre in July this year for failing to implement OBC reservation in seats under the All India Quota (AIQ) in Tamil Nadu’s medical and dental colleges. The observations were made on a contempt plea moved by the Dravida Munnetra Kazhagam (DMK) against the Centre for failing to implement a high court order passed in July last year to provide OBC reservations in admissions to medical colleges.
The contempt proceedings were dropped a month later after the central government notified 27 per cent reservation for OBC candidates for admission in central medical colleges under the AIQ.
‘This is a secular country’
On 9 August, a high court bench that included Justice Banerjee rejected a petition seeking to bar Chief Minister M.K. Stalin from heading committees under the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, unless he took a pledge before a Hindu god in a Hindu temple that he would profess Hindu faith.
“Discord, disharmony and suspicion in the name of religion has to stop. This is a secular country and secularism implies tolerance for the other religion,” the order said.
These clauses — 9(1) and 9(3) — require publishers of news on the internet and over-the-top (OTT) platforms, like Netflix and Prime Video, to comply with a ‘Code of Ethics’ and also prescribe a three-tier grievance redressal mechanism headed by the government. The courts observed that the two clauses infringed on the right to freedom of speech and expression, guaranteed under the Constitution.
Pulled up Centre on Covid management
Justice Banerjee also pulled up the Centre on several issues related to Covid-19 management in Tamil Nadu.
During a hearing on 22 April, a bench headed by him raised concerns over the pricing of the COVID-19 vaccine, asserting that it might create a “financial burden” for people in the 18-45 age group and “leave them in a lurch”.
Then on 29 April, Justice Banerjee questioned the Centre on what it had been doing for the past year, instead of anticipating and preparing for the second wave of Covid-19. The observations were made during the hearing of a suo motu public interest litigation initiated by the court to monitor Covid-19 management in Tamil Nadu and Puducherry.
“Why are we acting only in April now though we had time for one year? Despite having a lockdown for most of the last one year, see the situation of absolute despair we are in,” Justice Banerjee reportedly told Additional Solicitor General R. Sankaranarayanan, who was appearing for the Centre.
The next month in May, a bench headed by Justice Banerjee advised the Centre to disclose the basis on which it had been allocating Covid vaccines, drugs, oxygen and the like to various states and Union territories fighting the raging second wave of the pandemic.
“We are one country. We have to equitably share it (resources) and there comes the role of the central government. We hope that the central government does it on rational and reasonable considerations and on no other consideration,” Justice Banerjee was quoted as saying.
Days later, on the court’s prodding, the Centre also informed the high court that it had increased the allocation of oxygen to Tamil Nadu, under the National Oxygen Plan, from 419 tonnes to 519 tonnes per day.
In July, Justice Banerjee headed a bench that rejected a petition for the reopening of all places of worship in Tamil Nadu, asserting that the “right to practise religion is certainly subservient to the right to life and when the right to life is threatened, the right to practice religion can only take a backseat”.
(Edited by Rohan Manoj)
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