Through a notification (No. 1365-RG) dated 30.01.2024, the Chief Justice of Calcutta HC Justice TS Sivagnanam, has reassigned all cases under Article 226 relating to primary education under Group-II, which were to be heard by Justice Abhijit Gangopadhyay to the bench of Justice Rajasekhar Mantha.
This development is a result of a revolt by means of ‘ignorance’ on part of Justice Gangopadhyay of the Calcutta HC against a two judge division bench order headed by Justice Soumen Sen. The matter was then taken suo moto by the Supreme Court leading to staying the orders, and transferring the case to itself.
The battle between the state of affairs and J. Gangopadhyay is not new. Earlier Early in 2023, the judge was hauled up by the Supreme Court for giving an interview to a local Bengali news channel regarding the infamous cash-for-jobs scam in West Bengal.
In its order, the SC had observed that sitting judges of High Court's had no business giving TV interviews. The SC had also directed Calcutta HC CJ TS Sivagnanam to re-assign all pending proceedings in the recruitment scam before Justice Gangopadhyay to another bench.
In response, Justice Gangopadhyay held court and passed a suo moto order directing the Secretary General of the Supreme Court to place before the SC a translated version of his TV interview, perhaps in an attempt to vindicate its content.
In staying the aforesaid order, the Supreme Court noted that "the order of the present nature ought not to have been passed in a judicial proceeding, more so, keeping in view of judicial discipline"
CJI DY Chandrachud on that occasion had remarked that the transcript of the interview had well justified the SC order.
In another instance of being embroiled in controversy, Justice Gangopadhyay had recently directed the immediate arrest of a lawyer from his courtroom for alleged criminal contempt and caused the lawyer to be taken into custody by the Sheriff from within the courtroom.
In response to this, the Calcutta High Court Bar Association passed an urgent resolution, calling for the immediate withdrawal of all judicial work from Justice Gangopadhyay till an apology was forthcoming.
The judge, who has remained critical of the West Bengal ruling dispensation's role in the recruitment 'cash-for-jobs' scam had also, in 2023, passed an order dismissing a TET candidate's plea against the recruitment process, after she failed to correctly spell the word 'Durga' in Bengali in his courtroom.
Unusually, this is not the first time Justice Gangopadhyay has taken on a division bench, as in 2022, he had objected to the decision of a division bench of Justice Harish Tandon and Justice Rabindranath Samanta for accepting a document in a sealed cover in the SSC recruitment irregularity matter.
This also subsequently led to a heated exchange between the judge and other lawyers when the judge allowed journalists to take video recordings of court proceedings pertaining to the illegal appointment of teachers in the state-run schools of West Bengal.
A judgement was passed by J. Gangopadhyay in the matter of Itisha Soren Vs. Union of India & Ors. WPA 22150 of 2023. A per the First Information Report (FIR) filed by CBI dated 24/01/2024 (following J. Gangopadhyay order dated 24/01/2024 ) states that case is about ‘fake caste certificates.’ It states that there have an issuance and use of fake certificates of reserved category candidates in medical colleges in West Bengal. It is further alleged that a large number of candidates who possessed ST candidates qualified the NEET (UG) 2023 examination are not actually ST and consequently their certificates are not valid and since the authority concerned did not take any step, said Association also filed a Writ application which is pending for adjudication. Thus, is it alleged that the respondents have deprived the petitioner of her legitimate claim.
The petitioner Itisha Soren filed a Writ Petition before the Calcutta HC stating that she is allotted a private medical college for MBBS after clearing her NEET (UG) 2023 examination. The petitioner further stated that she belonged to a poor background and thus cannot afford a private college. But on noticing the illegality or irregularity in allotting scar to a large number of ST candidates in Government college, though in reality they do not belong to ST community she filed a complaint. The inaction on complaint lead to filing of the Writ Petition. The candidate also prayed that if candidature of students appearing in examination is cancelled, she would get the seat in Government college.
The following remedies were asked for:
· Issuance of mandamus for conducting inquiry by authorities
· Issuance of Prohibition prohibiting respondents from exercising unwarranted powers.
· Allowing injunction on cancellation of candidature of petitioner.
· SUCH OTHER FURTHER ORDERS AS YOUR LORDSHIP MAY DEEM FIT.
Following this pleading an order was passed by a Single Bench of Calcutta HC through J. Gangopadhyay ordered the petitioner to add CBI as a party-respondent and ordered for a CBI investigation in the matter citing “a large picture of corruption.” The court held that:
“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.”
The Court further ordered:
“…if necessary, if it finds any money trail Enforcement Directorate will also come into the picture for investigation into the money trail.”
“I direct the Registrar General of this court to communicate to CBI officer as to appearing before this court at 2:30 p.m. today to take those papers as indicated above and to start investigation in this matter forthwith by filing FIR.”
“This matter will be taken up at 2.30 p.m. for the above purpose and tomorrow at 10:30 a.m. for further hearing.”
This lead to the Advocate General of the State to appeal ‘orally’ to a division bench of two justices headed by J. Soumen Sen on the same day before the matter could be heard any further by single Judge.
The Advocate General submitted in oral appeal that the process of verification of caste certificates had commenced much prior to the Writ and a large number of certificates have been verified and cancelled . Also, FIRs have been filed against certain officials and department proceedings have been conducted. AG also mentioned that the State was not permitted to rely on documents justifying no requirement for a CBI investigation. Further, no prayer was made for a CBI investigation by the petitioner.
The bench held that CBI cannot be invoked lightly unless matters so pertains or a prayer is so made. The court noted that a bunch of documents placed before single judge were placed before themselves and are required to filed through an affidavit and thereafter whether there is any requirement of any CBI enquiry nothwithstanding any prayer is made in the writ petition is to be assessed.
However, in calling the division bench's order void ab initio, Justice Gangopadhyay labelled Justice Sen's actions as 'misconduct' and in his order accused the senior judge of allegedly harbouring political bias in favour of the State's ruling dispensation.
This lead to the Supreme Court taking suo moto cognizance of the matter, staying the orders, and transferring the case to itself.
Judicial indiscipline and the principle of 'stare decisis'
In India's legal system, which is modelled around the common-law framework, judicial officers and judges have been traditionally expected to follow the principles of stare decisis, which literally translates to to stand by things decided.
This essentially means, that courts refer to previous, similar legal issues to guide their decisions known as 'precedents' to guide future decision-making. This doctrine makes an obligation for courts to refer to precedents when arriving at a verdict, and show reverence to the verdict of a larger bench or a higher court when doing so as well.
Notably, while Article 141 of the Constitution emphatically lays down that the law decreed by the Supreme Court shall be binding on all subordinate courts, there exists no statutory or constitutional restriction on a single-bench overruling the verdict of a division bench.
This would, however, fall within the category of judicial indiscipline. While there exists little precedent regarding the violation of division bench orders by a single bench of the same High Court, the Supreme Court had very recently in the case of Mary Pushpam v Telvi Curusumary 2024 LiveLaw (SC) 12, laid down that the rule of 'Judicial Discipline and Propriety' and the Doctrine of precedents has a merit of promoting certainty and consistency in judicial decision providing assurance to individuals as to the consequences of their actions.”
In that case, a division bench of Justices Rajesh Bindal and Vikram Nath had elaborated that when a decision of a coordinate bench of the same HC is brought to the notice of the bench, it is to be respected and binding, and the only course of action for a bench of co-equal strength is to take a different view and refer the question to a larger bench. In this case, the strength of the division bench, in appeal, clearly superseded that of the single bench, and by calling for ignorance of the division bench, it may be concluded that the single bench has fallen afoul of the tenets of judicial discipline.
While the principles of judicial indiscipline are well defined vis-a-vis the Supreme Court, High Courts, and subordinate judiciary, it remains to be seen how the principle is applied in the case of irreverence being shown to a division-bench verdict by a single-bench of the same court.
WHEN TO ORDER CBI INVESTIGATION
The Supreme Court in Himanshu Kumar and Ors versus State of Chhatisgarh 2022, the Apex Court referred to the judgment in the State of West Bengal And Ors. v. Committee for Protection of Democratic Rights, West Bengal (2010) 3 SCC 571, wherein the Apex Court had held that investigation can be handed over to the CBI only in 'rare and exceptional case' - where it becomes imperative to provide credibility and to instil confidence in the investigation or in incidents having national and international ramification or for doing complete justice and for enforcing fundamental rights.
It was of the opinion that in cases where the Court feels that the investigation conducted by the State Police is lacking; it feels that the higher officials are involved in the alleged crime or in order to do complete justice, it may handover the investigation to CBI or any other independent authority. It emphasised that the extraordinary power under Article 32 and 226 of the Constitution of India should be exercised with great caution while deciding on the issue of transferring inquiry to the CBI. Though there are no guidelines as such to indicate when Courts can issue directions for a CBI inquiry, such an order cannot be passed in a routine manner and on mere allegation of the parties against the local police. The Bench was of the opinion that -
"one factor that courts may consider is that such transfer is "imperative" to retain "public confidence in the impartial working of the State agencies."
This observation must be read with the observations made by the Constitution Bench in the case of Committee for Protection of Democratic Rights, West Bengal (supra), that mere allegations against the police do not constitute a sufficient basis to transfer the investigation."
Also in Royden Harold Buthello & Anr Vs State Of Chhattisgarh & Ors Criminal Appeal No.634 Of 2023, 2023 LiveLaw (SC) 154, a bench of Justices AS Bopanna and Ahsanuddin Amanullah observed that the transfer of a case should be made to a specialised agency only if there’s no other option of securing a fair trial otherwise.
“Hence it is clear that though there is no inflexible guideline or a straightjacket formula laid down, the power to transfer the investigation is an extraordinary power. It is to be used very sparingly and in an exceptional circumstance where the Court on appreciating the facts and circumstance arrives at the conclusion that there is no other option of securing a fair trial without the intervention and investigation by the CBI or such other specialized investigating agency which has the expertise.”
In K.V. Rajendran v. Superintendent of Police, CBCID South Zone, Chennai, (2013) 12 SCC 480. Dr. B.S. Chauhan, J. speaking for a three- Judge Bench of this Court held :
“13. ...This Court has time and again dealt with the issue under what circumstances the investigation can be transferred from the State investigating agency to any other independent investigating agency like CBI. It has been held that the power of transferring such investigation must be in rare and exceptional cases where the court finds it necessary in order to do justice between the parties and to instil confidence in the public mind, or where investigation by the State police lacks credibility and it is necessary for having “a fair, honest and complete investigation”, and particularly, when it is imperative to retain public confidence in the impartial working of the State agencies. ...”
STORY OF WEST BENGAL POLICE
A team of the Enforcement Directorate (ED) was attacked during a raid of a TMC leader's house in connection with an alleged ration scam. The attack took place when the agency officials were raiding the premises of two block-level leaders Shahjahan Sheikh, and Shankar Adhya, and their family members in North 24 Parganas, according to officials and media reports.
The same instance was brought forward by Justice Gangopadhyay in his judgement while ordering the CBI to investigate the matter and not the State Police. The order reads thus:
“The police of this State have not been able to arrest one culprit Sk. Sajahan in recent Sandeshkhali raid by E.D. who dared to touch the ED officials of this country which means that the Union of India has been touched by some miscreants.”
The Calcutta High Court has lately ordered a joint SIT probe into attack on ED officers at Sandeshkhali. Although the High Court has Dismisses Plea Seeking NIA Or CBI Probe.
SCOPE OF ARTICLE 226
The Supreme Court in its recent decision in Magadh Sugar & Energy Ltd v. State of Bihar & Ors summarized the principles of law crystallized in earlier decisions, as under:
“(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;
(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;
(iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;
(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;
(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and
(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.”
Thus, if the present matter of fake certificate issuance and use is seen from a bird’s eye view there seems to be a clear involvement of officials of State of West Bengal, as the issuance of caste certificates is solely the domain of State. Also, money trial in this matter cannot be fully negated. Thus, the dictum of Committee for Protection of Democratic Rights, West Bengal (supra) is fulfilled.
Also, the recent inaction by State Police in ED attack case, presses for an inquiry by a body outside the State of West Bengal. The inquiry by CBI would also be important to instil confidence in the public mind, where the matter is related to issuance and use of fake caste certificates and affecting the legitimate claim, thus fulfilling the dictum of K.V. Rajendran (supra).
Therefore, in a case related to issuance of a number of fake certificate is alleged and there seems to be an involvement of officials of the State and the Police has recently failed to act actively in a mob attack against a central agency, thus somewhat losing its reputation in the minds of public, the case is fit to be investigated by the CBI. The High Court thus under Article 226 had acted objectively, thus fulfilling the dictum of Magadh Sugar & Energy Ltd (supra) and the existence of 'rare and exceptional case' held in Himanshu Kumar and Ors (supra) cannot be fully denied.
As far as the question of ‘no prayer for CBI is expressly made by the petitioner’ is concerned, it must be noted that “such other further orders as Lordship may deem fit” always forms part of every prayer made by any petitioner in any court. Thus, in the interest of justice any appropriate order can be passed by a court of law as long as it possesses such power, and in case the Court is a High Court exercising powers under Article 226, ordering a CBI inquiry is well within the four corners of its power.
URSURPTION BY THE DIVISION BENCH
The same day that the order was passed by single judge, Kishore Datta, the Advocate General of the state mentioned the case before a Division Bench of Justices Soumen Sen and Uday Kumar. This lead to the Division Bench staying the single-judge bench Order immediately.
When the matter escalated and Supreme Court took suo moto cognizance of the matter, Attorney General R. Venkataramani and Solicitor General Tushar Mehta had questioned the procedure followed by the High Court Division Bench headed by Justice Soumen Sen to stay Justice Gangopadhyay’s directions, without even perusing a copy of latter’s judicial order, records of the case or the memorandum of appeal. But no heed was paid to their contention by the CJI, who orally held that in ‘exceptional situations’ such procedure can be obtained.
The point is:
· An order is passed by a single Judge of HC
· Appeal is preferred before a division bench of High Court against such order
· Such appeal is made on the very same day
· Such appeal is made without the order so appealed
· The appeal is made without an appeal memo
· Further the division order passes an order staying the single judge’s decision
All these actions are worked out in same day.
Thus, looking at the complete picture from a distance it is visible that the High Court through J. Gangopadhyay neither lacked in procedure nor lacked in power and finally had exceptional situation before him to order a CBI inquiry. Was the situation exceptional enough to order a CBI inquiry is a matter to be decided by a proper procedure of special appeal.
While on the other hand the division bench bypassed the procedure so established and granted relief to the State of West Bengal in a matter which is not related to life or liberty. Further, the order of single judge was stayed within hours of passing. Bypassing court procedure in name of urgency and granting reliefs in matters not associated with life or liberty without having a look at the order so appealed creates a serious doubt in minds of public against the courts.