Calcutta High Court has become a dumping ground for unwanted elements: Justice Sanjib Banerjee [Part II]

In the first part of the interview, Justice Sanjib Banerjee broke his silence on the reasons for his controversial transfer from the Madras High Court to the Meghalaya High Court..In Part II, Justice Banerjee speaks to Bar & Bench's Aamir Khan on the Collegium system, why he thinks Calcutta High Court has become a “dumping ground for unwanted elements,” judgeship being a thankless job and much more. .Edited excerpts follow..Aamir Khan (AK): What do you think of the Collegium system? Do you recommend any changes to the existing system? .Justice Sanjib Banerjee (SB): It is not doing its work, but it's better than anything that I can think of. Faults can be found with every system. I can even criticize the way we run the democracy in this country, but then what is a better alternative? Unless you come up with a better alternative, there's no point criticising a system. The Collegium system, at least in theory, ensures independence of the judiciary.It is how to make the Collegium system better, not always by making it more accountable. Not by making it write more or give reasons. Sometimes, you cannot give reasons. Sometimes you perceive that a person may not be up to the mark, but you cannot reduce that in writing. Sometimes you perceive, and from the position that you occupy, your perception may be justified that a person may not be appropriate, temperamentally or integrity-wise. .But you cannot say that it would amount to defamation or character assassination. You can't make it accountable in that sense - that reasons have to be given (for elevation and transfer of judges). What you expect is that people who are in that position would be judging it dispassionately and taking decisions not guided by what their post-retirement opportunities give them. I've always believed that if you have people of A quality, they will always get other people of their quality because they have nothing to hide. But the moment you get someone of B grade, he will ensure that the next one is of C grade, so that he doesn't get caught out. How can you, for instance, justify that upon the complaint of a Chief Minister speaking of the perceived bias of the Chief Justice of his state, that such Chief Justice is transferred to a smaller state? But upon the next CJI coming to office, the transferred Chief Justice is brought to the Supreme Court, just because such CJI was the beneficiary of some of the perceived biased orders. .Are these the reasons that are relevant for considering the appropriateness of a judge coming to the Supreme Court? If it was only one person in the Collegium what were the other five doing? And all this is because we have not created a mechanism for tackling or dealing with dishonesty amongst High Court judges. And some transfers over the last couple of years which have been recommended by the Supreme Court on the basis of doubts as to integrity have been stalled by the government for its benefit. There was a particular judge who was required to be transferred and was recommended to be so done. The government did not give effect to it such that he had a reign of about 5-6 months as Acting Chief Justice. This is where the Supreme Court and its Collegium should be firm. .It's not a question of 'I don't want confrontation during my regime'. If a situation calls for a confrontation, then confrontation is the honest way of going about it. Everything else is dishonest. Just like it is dishonest to let certain matters go on the back burner and take them up when they become irrelevant. I must also put what I say in perspective. It's not as if this is the only time or this is the first time that there's friction between the executive and the judiciary. It has always been there. It's good for democracy. But the friction must not be where one would not allow the other to function or one would have to be so submissive to the other in the manner we may perceive the judiciary at the moment. .AK: You were hailed as the “common man's Chief Justice” in Meghalaya..SB: I did what I thought was my duty. I didn't go out of my way to do anything extraordinary. I didn't need to. It’s the way I worked in Calcutta, the same way I worked in Chennai, and the love and affection and particularly the warmth that I've got both from Chennai and from Meghalaya, they really overwhelm me. Because I can at times be quite brusque. I don’t suffer fools..I would stop people who were making wrong or bad arguments in court. I wouldn't give lawyers too much time to repeat and labour over something, or flog a dead horse.Despite all that, the kind of warmth and affection I've got - there is not a day till now that I have not received a message or a phone call from someone in Chennai or Shillong.We are absolutely overwhelmed by that - both my wife and I had the love and affection that I got. One of the retired judges from Madras had come for my farewell to Shillong. That is expected. But along with him came one of our house staff and the Secretary to the Chief Justice who was with me throughout my Madras days. .These are very touching. Maybe I did something right amidst all the shouting and temper tantrums that I may have thrown. Meghalaya was almost a Greenfield project where the rule of law had to be established. Where the district judiciary had to be organised because Meghalaya has always been either an end-of-career or a punishment posting. .Chief Justices sent to Meghalaya have never taken any interest. I found that to be a great opportunity. With my colleagues over there, particularly, Justice (Hamarsan Singh) Thangkhiew. The Meghalaya High Court is now brimming with life. It was a kind of sleepy institution before that. There's so much which can be done in public interest in a state like Meghalaya, which needed roads, which still needs a lot of Central assistance for its development. It's a Sixth Schedule state. A lot is necessary and the Court can be a catalyst sometimes in those things..Very rewarding experiences both at the High Court of Madras and the High Court of Meghalaya. I've been very fortunate. How many people get to be Chief Justices? I was fortunate to go from a chartered High Court to another and then come to a place where there was a lot of work that had to be done..AK: You were recently quoted as saying that the arbitration landscape in India is plagued by rampant corruption. What prompted you to say it? .SB: No. That’s a wrong quote. It's been quoted in Madras. It's absolutely wrong. I was speaking in the context of that judgment by Justice MR Shah - what he perceived was that arbitration, particularly involving the government as a party, is sometimes affected by rampant corruption and that got quoted out of context and almost misquoted. In fact, there was a senior lawyer from Chennai who called me and he said that why don't you issue a clarification? He was there and he heard what I had said. I said let's not give more fuel to that..By the time the SAW Pipes judgment was delivered, under the 1996 Act, the extent of the courts' authority to interfere with an award had been greatly reduced from what was permitted by the 1940 Act. When an award is challenged in court, the grounds are much less now than they were under the 1940 Act. Yet in SAW Pipes and ONGC, the Supreme Court opened up a wider arena for receiving a challenge.The justification for that was that in many cases, particularly when the government was a party, corrupt arbitrators or corrupt awards were affecting the government.That kind of a situation has been addressed later in Justice Nariman's judgment in Associate Builders. And now we are coming back to the limited kind of interference which Section 34 of the new Act actually permits the court. Now we are getting back to stricter kind of control over courts in how they interfere with an award. .AK: You started your judgeship at the Calcutta High Court. There was a major controversy that recently took place involving two sitting judges. Your thoughts?.SB: It was very unfortunate. But, unfortunately, the Calcutta High Court has today become a dumping ground for parking unwanted elements from elsewhere. That should never be, because the Calcutta High Court is one of the premier High Courts. It was the first High Court in the country and it deserves better treatment than it has been accorded in recent times. It's like, if you can't send a man to any of the smaller North-East courts which are meant for punishment beats, then Calcutta is the other place.There was no justification for sending someone like (Justice CS) Karnan to Calcutta and some of the others who've come in recent times. Some of them hardly sit. They come and have their names published in the list, go back to their hometowns, and then sit very infrequently because some of them have added leaves at the end of their careers, so they're making use of it. .The other controversy you speak of is very unfortunate because for all practical purposes, Abhijit Gangopadhyay may not have done things in the right way, but in terms of integrity, my perception is that he was completely above board.But ultimately approaching a political party and joining it, if he had that in mind, he shouldn't have taken up those matters because that tinges it with some element of prejudice or a motive that should never be attributed to a judge. Also, a responsible political party should not pick up people like this. They should be much more choosy in picking up people to join politics. What happened in Calcutta has left a bad taste. .AK: Do you think judges should join politics or take up post-retirement jobs and positions? .SB: Judges are very badly paid. That's why you don't attract good talent, particularly in the bigger cities. In smaller states, you'll find people queuing up for judgeship because of the power that it brings. But in the larger metros, where it doesn't really matter that much, you wouldn't find too many people wanting to become judges for the right reasons. In the Constituent Assembly, they had originally proposed much higher salaries for judges, so that they would be completely above board.Salaries all around were brought down, including of judges. That resulted in a post-republic judge actually being paid much less than a pre-republic judge for doing the same job in the same court. It was an anomaly that continued for some time till the pre-republic judges retired..If you were appointed on January 27, 1950, you would be getting much less than your colleague who's sitting in the same court next to you, because he was drawing a higher salary.So this anomaly has now been resolved with the pay commissions. Salaries and perquisites have increased a lot, but it's still not commensurate with what a successful lawyer in a metropolitan city would be making if he were not a judge and had remained in practice.That is something that needs to be addressed. Again, I don't know how the system can be improved to attract good people to become judges. Because when you get third-grade lawyers who think that everyone is interested in career progression, and so people will take up judgeship if it brings something more to them. Such people wouldn't have had much practice at the Bar. And these are not the kind of people that you want to make judges without that kind of experience, without that kind of exposure, without that kind of knowledge.Of course, there are several who are unlucky and don't have a practice and make excellent judges. But by and large, if you've not had a good practice for 15 years and you're still struggling at age 45, you're not good material to be made a judge. .AK: How overburdened are High Court judges? .SB: It’s absolutely thankless. I remember Justice Ajoy Nath Ray. Wonderful mind. Unfortunately, because of his father's name, he suffered. Justice Ray used to be not worried about the number of matters on the list. He would say that I have to do justice in the matter which is immediately before me and if I think of the others which are pending, I will not do justice in this matter. But what that entailed was that sometimes he would hear a matter for over 20 days and he wouldn't touch any other matter in the list. And at the end of 20 days, you dictate judgment sometime in court for 2-3 days. .Those are things which cannot be done. You cannot dictate judgments in court which take anything more than 20-25 minutes. And even if you're in the midst of a very heavy matter, which goes into15-20 days, you must give it some part of the day and reserve another part of the day for other urgent matters that require immediate attention. Judges are burdened with numbers. We are prone to making mistakes because this number sits heavy on us. It's a thankless job, really.It's like a traffic policeman. If the traffic policeman is doing his job right, no one notices him. It's only when he does it wrong and there's a traffic snarl that one kind of realises that he's doing his job wrong. It's a heavy burden. High Court judges, and more so Supreme Court judges should have much less work and much more time to think and reflect. We sometimes do not get time to think and reflect..Judges are burdened with numbers. We are prone to making mistakes because this number sits heavy on us. It's a thankless job, really.Justice Sanjib Banerjee.AK: Are there any solutions to decreasing the workload beyond just appointing more judges? .SB: If you go by the 1980 judgment of the Supreme Court, where it talked about the judge-population ratio we should have had about 1,80,000 judges in this country. We have no more than probably 20-22,000 judges going from civil judge junior division right up to the Chief Justice of India. For the number of matters, this is far too less. .No politician will want to reform the judicial system to make it effective. It's a worldwide phenomenon, it's not just in India. Politicians do not care too much for the judiciary. That's because they're not too fond of it. The judiciary remains a watchdog and is not there to please politicians or the executive, but to do its job.The kind of infrastructure that we require - physical infrastructure, human resources - is many more times than what we have. Therefore, it’s absolutely criminal to point at the number of cases pending and blame the judiciary for it. At the same time, there should be in-house mechanisms devised to ensure productivity.There are two judges sitting next to each other, let's say doing the same kind of matters. One judge goes home at 5 o'clock after doing 5 matters. The other judge goes home at 10 o'clock after having done 50. There must be some kind of check and balance within the system, which has not been devised..Of course, internal checks are there under Article 235 of the Constitution, by which the High Court is in superintendence over the district judiciary. But the Supreme Court has no superintendent authority over High Courts. However, with the Collegium system, they have kind of an unwritten superintendence over High Courts, which is very undesirable. One of the very few features of our federal system was the independence of the High Courts. Now that, in many ways, has been undermined by the Supreme Court in recent times.Indeed, if you go back even to the 1980s, you'd find when it came to local laws, the Supreme Court hardly interfered with the High Court's interpretation, because it knew that the High Court knew the geography of the place, the pulse of the place and would have arrived at a right interpretation of the local law. .But for judges from another state not having any idea about the ethos or the sense of the locale, if they were to interpret a law in the cold without understanding the peculiarities of a particular place, everything would go wrong. These are things which a mature judge would never do. Unfortunately, we've had a plethora of terrible appointments in the Supreme Court, including at the highest level. .AK: You mention ethos of a particular locale. How does a judge adapt to the local cultural, lingual and sentimental aspects while moving region to region?.SB: You’ve got to respect the place. You can't change the system of a place because of your fixed notions. You've got to adapt to that place. For instance, in Calcutta, we don't have many matters to do with temples. But the Charitable and Religious Trusts Act, 1920 is probably the most widely used statute in the Madras High Court because there are too many temples and so much controversy, so many sects. So you adjust to and adapt to what is there in a particular place. For instance, in Meghalaya, which is a Sixth Schedule state, you just cannot go and impose your will over there. You've got to respect the Sixth Schedule. You've got to respect what you're supposed to do. .AK: Do you think overhauling the colonial era laws and replacing them with new laws will streamline the justice dispensation system?.SB: It’s not the laws which are wrong; it's the sometimes the implementation of the laws and sometimes the attitudes of the authorities, which are wrong.The colonisers have left us, but when they left us, they had already inculcated feudalism in the higher echelons and we continue with that feudal culture even now. There is a growing divide between those in power and the others.If you’ve read my parting letter when I left Chennai, I refer to feudalism and my failure to tackle the feudal culture in that court. Feudalism does not come out of laws. Laws are fair enough. It's how you apply them, how you implement them, and how you deal with individuals where feudalism comes in. .I think it’s substituting something which may be somewhat inappropriate with something which is more inappropriate. And it's bringing about a lot of divides. If you're legislating in Hindi, what happens, South India does not exist? Eastern India does not exist? They don't speak Hindi over there. What are we doing in the name of unification? You are going about homogenising. And the little bit of federalism that is left is being destroyed.