[Exclusive] Report on former CJI Gogoi should have been made public; would have cleared the air: Justice Indira Banerjee [Part II]

In Part II, Justice Indira Banerjee speaks about how a 'lot of things' at the Supreme Court could have happened earlier, why she recused from certain cases and how judges ought to deal with emotions.
[Exclusive] Report on former CJI Gogoi should have been made public; would have cleared the air: Justice Indira Banerjee [Part II]

In Part II of this tell-all interview with Bar & Bench's Debayan Roy, retired Supreme Court judge Justice Indira Banerjee speaks about how a 'lot of things' at the Supreme Court could have happened earlier, why she recused from certain cases and how judges ought to deal with emotions.

She also talks about the findings of the inquiry committee formed to probe allegations of sexual harassment levelled against former Chief Justice of India Ranjan Gogoi, and insists that the issue was not swept under the carpet, as is widely believed.

Edited excerpts from the interview follow.

Read Part I of the interview here.

Debayan Roy (DR): In your 4 years at the Supreme Court, you have seen 5 Chief Justices come and go. Who among these, in your opinion, impacted the administration of the top court most efficiently?

Justice Indira Banerjee (IB): It would be CJI Ranjan Gogoi, since he was stern with the staff and that is the reason he got into trouble that we all know of. But if you are speaking of judges' concerns, then it is CJI UU Lalit, since he calls full court meetings and asks the suggestions of other judges.

Former CJI Ranjan Gogoi and CJI UU Lalit
Former CJI Ranjan Gogoi and CJI UU Lalit

DR: You were part of an inquiry committee that looked into the allegations of sexual harassment levelled against former Chief Justice of India Ranjan Gogoi, which many believe were swept under the carpet. What is your take on the chain of events and how the Court handled the aftermath?

IB: The sitting on Saturday headed by then CJI Gogoi should have been avoided. It was a big no. If there was a little more consultation with other judges, which was absolutely lacking, I would have said it was not needed to respond to the press at all.

The sitting on Saturday headed by then CJI Gogoi should have been avoided. It was a big no.
Justice Indira Banerjee

Some newspaper will come and say 'Indira Banerjee you answer this or allegations are admitted'; am I bound to respond? The Secretary General could be asked to make a statement that incorrect allegations are made and if it is proceeded, then action in accordance with law will be taken.

Justice Indira Banerjee
Justice Indira Banerjee

In the inquiry committee, we were not sitting to decide whether harassment had taken place or not. The question was did the CJI commit an act for which he could be removed from the post or not.

Former CJI SA Bobde
Former CJI SA Bobde

We were told by the Chairperson of the Inquiry Committee, Justice SA Bobde, whatever you have to do, do it fast. Justice Bobde had told me to forget about Ps and Qs, about English grammar and spellings, as the report is never published. However, I said,

"Brother, I will proceed on the basis that it will be published. If not today, then tomorrow. If not in my service, then after retirement. If not in my life, then after my death. No one should say that it was brushed under the carpet because he was the Chief Justice of India."

We were criticized by the press saying that I was appointed by the Collegium headed by CJI Gogoi. But Justice Malhotra and I were appointed by the Collegium headed by CJI Dipak Misra.

The inquiry was never brushed aside. The allegations made against the Chief Justice of India were not established.

I wish the report was made public. It would have cleared the air for him (former CJI Gogoi) and us. If somebody makes an advance with consent, can I say it is harassment? One needs to see what she said in her complaint very carefully since it is the judiciary involved. I am not trying to suggest that anything happened with consent.

DR: Less than a month ago, after a long hiatus, several Constitution Benches were formed at the Supreme Court to hear important matters. Why do you think such matters were not heard in the past 2 years? Was it just the pandemic?

IB: It is all the initiative of Chief Justice of India UU Lalit and there are so many matters since time is running out. CJI NV Ramana may have had his own priorities. He might have given importance to disposal of cases. One reason could be a shortage of judges and then alternate benches during the pandemic. I can guess as much as you can. But of course, I would have loved to have headed a few of these benches. I am grateful that CJI Lalit gave me an opportunity to head the bench before I retired, but this could have happened earlier.

But that way, a lot of things could have happened earlier. Like a judge who was junior to me came before me to the Supreme Court and even retired before I came to the Supreme Court.

Justice R Banumathi was sixth in seniority when she came to the Supreme Court. Justice Manjula Chellur was the senior most in the list. So not just Constitution Bench, a lot of things could have happened earlier.

Constitutional courts should have two Constitution Benches always working. Give the transfer petitions to the Registrar and others.

A judge who was junior to me came before me to the Supreme Court and even retired before I came to the Supreme Court.

Justice Indira Banerjee

DR: Back in 2018, you had revealed that a person had approached you in an attempt to get a favourable order. In your experience, how often do such attempts take place at the higher judiciary level?

IB: In my entire judicial career of 20 years, this kind of an attempt has been made three times. But not more than that. It was once in the Supreme Court, which you mention, and twice in the High Court during the early stages of my career.

On one occasion, my mother’s first cousin had telephoned me and said that her son’s friend's case was on my list and that I should look into it. I said, 'Maashi (aunt) we are not supposed to discuss this.' She profusely apologized and later I discharged the case from my board and did not hear it.

A second instance was of a neighbour who came asking for help regarding some education matters. Later, that matter was also deleted from my board.

DR: What was the reason behind your recusal from hearing petitions seeking a CBI probe in the West Bengal post-poll violence cases?

Supreme Court, West Bengal
Supreme Court, West Bengal

IB: Though I am a completely apolitical person, one of the BJP candidates from Calcutta happened to be my first cousin. He was Lokenath Chatterjee. Not only a BJP leader, but also a lawyer. Would it be appropriate for me to take up a case related to poll violence when my first cousin contested the elections?

Would it be appropriate for me to take up a case related to poll violence when my first cousin contested the elections?
Justice Indira Banerjee

Everyone in the High Court Bar knows that he is related to me. If asked, I would have disclosed the reasons. Naturally people wanted to make a political issue out of it, and some said the situation was so bad that I was scared to hear the matter since I had to go back to West Bengal after retirement. I do not know if they knew I am single and all my nieces barring one in West Bengal and all my nephews are settled abroad.

DR: During the hearing of the Gangubai Kathiawadi case earlier this year, you narrated a rather moving account of your encounter with a sex trafficking survivor. While judges ought not to be swayed by emotions, how important do you think it is for a judge to acknowledge these emotions when deciding the very human problems that come up before courts?

IB: When issues are emotional, we cannot be devoid of emotions. We have to be objective, but we are part of society and we cannot ignore social problems. So the experience that we get while performing non-judicial duties often plays a role. As an executive chairperson of the Calcutta High Court legal services authority, I have seen many such cases. We have to extend our hands to grant relief in human cases and we cannot confine ourselves to hyper-technicalities.

When there is a burning issue of importance which has social implications, we will hear the other side, but in our anxiety to right a social wrong, we should not punish an innocent.

Although I am a woman, there were umpteen cases of pre-marital sex and marriage not working out, followed by rape complaints. I have been quite liberal in granting bail in such cases.

If a marriage can end in divorce, then can an engagement not be called off when there is pre-marital sex? I believe in absolute equality. I do not think any concession was given to me ever for being a woman.

DR: With the advent of social media, the conduct of judges is no longer confined to the courtroom, and is open for public reading at large. Does it affect the smooth functioning of the court? Do judges now think twice before making an off-the-cuff observation?

IB: I have always been careful before making any off-the-cuff observations from 2002 till today. When I go to the judicial academy as a faculty, I have told the judges, rule number one: justice should not only be done, but manifestly be seen to be done.

So do not make any comment which raises doubts on your objectivity or partiality. Ask questions which are relevant. You can take up one side when you see, say Senior Advocate Kapil Sibal against a junior counsel. Try to grill Sibal then (smiles). Do not make comments based on your personal views, or people may think you are biased. Judges who make off-the-cuff remarks - do they know proceedings are recorded? Maybe many of us think it is smart to make such comments or perhaps track what is being reported. I never did this.

DR: What is your take on courts attempting to interpret religious texts? Should a court look into such issues or wash its hands off at the outset?

IB: Hardcore religious texts, a big no. We are not theologists, we are judges. If there is an infringement on fundamental rights related to a temple, yes. Like in the Sabarimala case, there was clear evidence that women were allowed at one point in time. So yes, that case can be heard and entertained.

DR: What is your take on the Hijab controversy? Should students be allowed to wear Hijab in classrooms?

IB: Somebody will say I want to wear my red chudis (bangles). Could I have done this in Loreto House (school)? It violates the uniform of the school and I do not think anybody should insist on this, as it is not an essential religious practice.

DR: Since you have authored several judgments on the rights of convicts and grant of remission, do you think heinousness of a crime should be a factor for rejection of remission, irrespective of the number of years served?

IB: Yes. That is why I have commuted a death sentence but held that the accused should remain in life imprisonment for the remainder of their life. It was a case of rape and murder of a four-year-old child. I was asked why I commuted the sentence. My answer may be swayed by my personal opinion, that I am anti-death sentence. If I cannot give life, I would be reluctant to take life.

Apart from exceptional cases where taking one life is needed to save hundreds of others - like a hardcore, proven terrorist. It should not be somebody just picked up and blamed, but a hardcore proven terrorist. I also think it is a greater punishment when their cases are kept pending for years. So yes, heinousness can be a ground while not granting remission, subject to the policy decisions of the Central or State government. Then we are bound by statutes.

DR: The Committee for Reforms in Criminal Laws is currently reviewing the need for changes to the criminal justice system. Given your expertise in criminal law, what are the areas that need to be addressed immediately?

IB: One area which needs immediate attention is the Protection of Children from Sexual Offences Act (POCSO Act). I know of friends who have had affairs from a very young age, got married at 18 and they are grandmothers with grown up grandchildren. A lot of things may have happened before marriage.

Today, with POCSO, the situation is that even in a consensual relationship, a person 17 years 11 months and 15 days old comes under the provisions of POCSO. In such cases, complainants are usually relatives, parents etc. In a case before me, a couple got married and were living as husband and wife and they came to us seeking to quash (a rape case). Our problem is how do we quash, it is a case of statutory rape. When a relationship is opposed, the girl's parents are opposing the marriage.

Just like the Juvenile Justice Act was amended post-Nirbhaya, similar amendment should be carried in POCSO where if a woman is above 15 and has the capacity to understand, then it should be outside the purview of rape.

DR: What is your take on post retirement opportunities for judges? Where do we see Justice Banerjee next?

I do not think there is any bar on a judge doing anything post-retirement. Whether there should be a cooling-off period or not, as of now there is no law in this regard. Like, there was no one to head the National Company Law Appellate Tribunal (NCLAT), and now Justice Ashok Bhushan is heading it. He is a very good judge.

Ashok Bhushan NCLAT
Ashok Bhushan NCLAT

As of now, I do not have any offer (smiles), so I would like to read some books, listen to music or watch some movies. But apart from this, I would love to visit law colleges and interact with students. Teaching has always been a passion.

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