- Did Mamta Banerjee herself not take care of constitutional dignity while holding a constitutional post?
- This question is relevant because he questioned the integrity of a High Court judge.
- How fair is it to doubt the impartiality of the judge instead of opting to challenge the decision?
Rajeev Nair, Senior Advocate, Delhi High Court
Justice Kaushik Chand of Kolkata High Court. Bengal Chief Minister Mamata Banerjee recused herself from hearing the petition. Mamta has challenged her defeat at the hands of BJP candidate Suvendu Adhikari from Nandigram constituency in the High Court. He alleges that he was defeated by rigging the counting of votes, otherwise his victory was sure. On the same charge, there was a recount of votes in which Suvendu’s victory was decided by 1,956 votes, but Mamta is not satisfied.
From Nandigram to High Court, Mamta dissatisfied
Mamata’s dissatisfaction persisted till the High Court and she questioned the integrity of Justice Kaushik Chand. The Chief Minister asked the court to remove Justice Kaushik Chand from hearing his petition as there is a possibility of him bowing down to the BJP side. Angered by this allegation, the court imposed a fine of Rs 5 lakh on Mamta, but hurt by the allegation, Justice Kaushik Chand himself withdrew from the bench hearing Mamta’s petition. In such a situation, the question arises whether it is right to raise bold questions on the integrity of a judge or justice?
Why did Mamta do this even while holding a constitutional post?
A clear answer to this question can be found in an article published in our partner newspaper The Times of India (ToI). Delhi High Court Senior Advocate Rajeev Nair in his article has given a detailed account of how Chief Minister Mamata Banerjee’s objection to Justice Kaushik Chand has not only been unfortunate but also shows the thumb of democratic, constitutional and judicial practices. Describing Mamta’s exploits as an attempt to find a favorable platform for herself, she said that it should be criticized in the strongest possible terms.
He writes in his article, “Advocates Abhishek Singhvi and SN Mukherjee, appearing for (Mamata) Banerjee (in the High Court), have dealt a great blow to the (judicial) institution by demanding the judge to withdraw himself. The judge gracefully recused himself, that doesn’t change the fact that the stage was a search attempt and it should be criticized in harsh words.’
He further writes, ‘Accepting such pleas of exclusion (of a particular judge or judges) would certainly amount to compromising on the independence of the judiciary. The hearing will be flooded with requests for separation of judges, especially in sensitive political matters. Therefore, this practice must be discouraged at all costs. If such requests keep coming, then the faith in the judiciary among the common people will also weaken.
How true is the suspicion based on the judges’ past?
Advocate Rajeev Nair in this article has given examples of many judges who had argued in the courts of an institution or party in the course of the profession of advocacy. He said that many eminent judges served the country by being a part of the judiciary and no one ever asked them to withdraw from the hearing. He writes, ‘Justice Sudarshan Reddy used to appear regularly on behalf of PUCL (People’s Union for Civil Liberties). So did that deter him from hearing the petitions as a judge? No. As a lawyer, Justice VN Khare had represented Indira Gandhi in the Allahabad High Court in the case of disqualification from contesting elections. He should never hear political cases on Banerjee’s scale.
He went on to give more examples. Nair said, “Justice Krishna Iyer was a minister in the first communist government of Kerala and later became a judge of the Supreme Court. As a Justice in the Supreme Court, he refused to give relief to Indira Gandhi in the Allahabad case, which was discussed a lot. Advocate Nani Palkiwala, appearing for Indira, was aware of Justice Iyer’s political past, yet did not seek her withdrawal from the case.
Conflict of interest or charge where benefit?
Naturally, such examples are very important from the point of view of Mamata Banerjee’s objection. The author argues that whenever there is a will, as per his convenience, no judge can be asked to withdraw from the hearing by raising doubts of conflict of interest. He says, ‘Instead of forming an opinion on the basis of what was one’s profession before becoming a judge, it should be assumed that he will sit on the highest post and discharge his judicial duty fairly.’
Judge withdraws from hearing but…
Advocate Rajeev Nair in his article has also pointed out that on many occasions the judges are required to withdraw from the hearing. He referred to the order of the Supreme Bench on the matter related to the NJAC (National Judicial Appointment Commission) case in 2015. He wrote, ‘The Supreme Court has held that if a judge’s interest other than money is getting in the way in respect of a case, then that judge should not automatically withdraw from the hearing, but it should be ensured through inquiry whether Whether or not the particular case actually conflicts with the interests of that particular judge. The investigation should be on such a scale that if the concerned case is handed over to that particular judge, then impartiality may actually be threatened.
No use of constitutional right, easy way to charge
This senior advocate of the High Court suggests that since there is a constitutional right to easily challenge an order, one should opt for an appeal against the judge’s decision rather than point fingers at the integrity of the judge before the hearing. He writes, ‘We should not play with the dignity of the judicial system by doubting a judge, because by doing so, there is a rift on the basis of the administration of justice. Ultimately, a judge’s decision can be challenged. In Mamta Banerjee case also, both the parties can challenge the decision, instead of making baseless allegation of collusion with any political party on the judge.