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Acknowledging the need for judicial restraint, Justice Sanjib Banerjee underlined that the Election Commission’s conduct can have “great consequences” for democracy as he defended his 2021 observations, as former Chief Justice of the Madras High Court, that “murder charges” should be imposed on the poll panel for violating Covid protocols during Tamil Nadu Assembly elections.
“A judge should certainly be restrained. However, the Election Commission is an institution which has a great responsibility. So, if it is seen tilting, one way or the other, by even a very small degree, it can have great consequences for democracy,” he told The Indian Express days after he retired as Chief Justice of Meghalaya High Court.
After an 11-month stint as Chief Justice of Madras High Court, Justice Banerjee was transferred as Chief Justice of the Meghalaya High Court. He retired on November 1.
“The case was being heard (in Madras HC) for a while and I felt there were some aberrations which is why those observations were made. Crowding in rallies and not following Covid protocol was certainly a concern and when the elections in West Bengal was held an eight phases, why was it held in a single phase in Tamil Nadu? You have to look at it in that context and not pick just two sentences,” Justice Banerjee said.
“Also, one cannot say that the court can’t make any observations. Lawyers cannot be expected to argue with a wall. They have to get indications from the bench so they can tailor their case accordingly,” he said.
The EC had moved the Supreme Court against these observations, terming them “uncalled for, blatantly disparaging and derogatory.”
While the SC refused to expunge the observation or bar the media from reporting it, Justice Banerjee‘s observations were widely discussed in legal circles when he was suddenly transferred to Meghalaya, one of the smallest High Courts.
When asked if he knew the reasons behind his unusual transfer, Justice Banerjee said that he is not concerned with the reason.
“I am sure there were cogent reasons for my transfer but I am not aware of it. I received an email (from then CJI NV Ramana’s office) and I said yes. Once you become a judge, you cannot have any ambitions of holding a particular office. So there was no question of me not consenting to the transfer,” he said.
A statement published by the Collegium on November 9, 2021 said that “the Supreme Court collegium in its meeting held on 16th September, 2021, has recommended the transfer of Mr Justice, Sanjiv, Banerji, Chief Justice, Madras High Court to Meghalaya High Court.”
While the statement cited no reason, Justice Banerjee said that the email only indicated that the transfer would be in the “interest of better administration of justice.”
Justice Banerjee added: “But I would not have had it any other way. The work that happened in Meghalaya during my stint was very important. In my 11 months in Madras, I had very rewarding judicial work. But in Meghalaya, there wasn’t a lot of judicial work but we focused on infrastructure building.”
On his stint in Madras, Justice Banerjee said that he was far from wanting to maintain the status quo and actively handled things in Madras High Court.
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“While the idea is that a Chief Justice who comes from outside takes a dispassionate view when it comes to appointments or other aspects, there is a flip side that they could end up being status quo-ists without wanting to ruffle too many feathers. By and large, the office of Chief Justice is considered a stepping stone for Supreme Court judgeship. It is to be somewhere but look elsewhere and not take steps to actively address the uncle judge syndrome when it comes to appointments,” he said.
As a High Court judge for nearly two decades, he said, corruption in the higher judiciary worries him.
“Punitive transfers are not enough. Corruption is an unimpeachable offence but it is difficult to gather evidence. These activities are not done in broad daylight but it is possible to collect some evidence of corruption. However, impeachment is a political solution. A compromised judge is convenient for all political parties. This is an aspect which erodes faith in the system and needs to be tackled,” he said.
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