More Than 200 Madras HC Advocates Write to Collegium Against Justice Banerjee's Transfer

New Delhi: A group of 237 advocates of the Madras high court have written to the chief justice of India and the Supreme Court collegium on the transfer of Justice Sanjib Banerjee. The collegium has recommended the transfer of Justice Banerjee, who was serving as chief justice of the Madras high court, to become chief justice of the Meghalaya high court.

In their letter, the advocates have pointed out that the Madras high court has already witnessed changes recently, as the two senior-most judges after Justice Banerjee too have left – one because he was elevated to the Supreme Court and the other because he was transferred to the Calcutta high court.

They have also questioned whether a judge of Justice Banerjee’s reputation and calibre is required in the Meghalaya high court, which sees only 70-75 cases a month, as opposed to 35,000 in the year in Madras. Since the collegium does not explain its decision, the letter continues, it leads to speculation on why a certain judge may have been transfereed:

“Similar transfers in the past have led to speculations i) whether the transfer was caused due to improprieties by the concerned judge or ii) whether there were external factors that penetrated the decision making process when  such strong pointers existed. It damages an honest judge’s reputation and tends to lower the image of the judiciary in public. It is the secrecy that surrounds the Collegium’s decisions and lack of stated criteria  that lead to a perception of arbitrariness. Ultimately, the judiciary as an institution stands to lose.”

As The Wire has reported, Justice Banerjee’s brief tenure as the chief justice of the Madras high court has been very eventful and in some instances even controversial. He is known to mince no words and has repeatedly admonished public authorities on account of their failure to carry out duties.

According to the advocates letter, he was also attempting to curb corruption in the judiciary:

“It is known in legal circles in Tamil Nadu that in order to ensure a totally free and independent judiciary, inquiries were afoot under the tenure of Chief Justice Banerjee to check corruption in the judiciary. His intolerance for corruption and inefficiency is well known and widely appreciated. The instant transfer would quell any such effort to strengthen the judiciary in the State.”

Read the full text of the advocates’ letter and list of signatories below.

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We, the undersigned advocates of the Madras High Court, write this letter with a sense of deep concern over the transfer of Mr. Justice Sanjib Banerjee, Chief Justice of Madras High Court to Meghalaya High Court.

1. In the last two months, the Madras High Court lost Justices M.M.Sundresh and T.S. Sivagnanam, Judges who were No. 2 and 3, in the seniority among judges, due to the appointment of the former to the Supreme Court and the transfer of the latter to the Calcutta High Court.  Now the head of the judiciary in the State is also being transferred within ten months of assuming office. This raises a very valid question whether the transfer of the Chief Justice in this background is in “public interest” and “for better administration of justice”, two factors held to be relevant by judicial dictum.
2. The transfer of Chief Justice Banerjee from a chartered High Court with a sanctioned strength of 75 judges to the High Court of Meghalaya, established in 2013, with a current strength of two judges, raises disconcerting questions. While transfers for better administration of justice may be necessary in principle, members of the Bar have a right to know why a competent, fearless judge and an efficient administrator of a large High Court where more than 35000 cases were filed this year should be transferred to a Court where the total number of cases instituted in a month is on an average 70-75.
3. Similar transfers in the past have led to speculations i) whether the transfer was caused due to improprieties by the concerned judge or ii) whether there were external factors that penetrated the decision making process when such strong pointers existed. It damages an honest judge’s reputation and tends to lower the image of the judiciary in public. It is the secrecy that surrounds the Collegium’s decisions and lack of stated criteria that lead to a perception of arbitrariness . Ultimately, the judiciary as an institution  stands to lose.
4. Justice Banerjee has added heft to the office of Chief Justice of one of the oldest Courts in the country. He steered the Court through this unprecedented and difficult period by ensuring that the justice system continues to function unhampered and unhindered by the pandemic. Chief Justice Banerjee has consistently sought accountability from authorities at all levels in their discharge of constitutional and statutory duties. He is known to be impartial, open to suggestions from all quarters for improving the functioning of the justice system and has undertaken proactive measures to strengthen the judiciary. Chief Justice Banerjee recently steered a massive gender sensitisation programme covering 1700 staff of the judiciary and has assured that the programme would be extended to the judiciary too in the State, including High Court judges.
5. It takes at least a few months for a Chief Justice after assuming charge as the head of the State judiciary to understand the demands and requirements that may vary in each State, to establish a healthy working relationship with her/his peers, earn the respect and trust of the Bar and put in place effective administrative measures to strengthen the system.
6. Justice Banerjee assumed the office of the Chief Justice of the Madras High Court on 04.01.2021 and is expected to retire in November, 2023. The recommendation to appoint him as the Chief Justice of the Madras High Court was made less than a year back in December, 2020 obviously after considering his experience as a judge of the Calcutta High Court and suitability to head a Chartered High Court. It is therefore inexplicable that in ten months, the Collegium should revise its opinion and recommend that such a person should be transferred to a Court where any avenue for utilising his vast experience would be severely limited.
7. Short tenures and abrupt transfers stand in the way of a cohesive leadership and meaningful administrative reforms.  A change in leadership every few months will have an adverse impact on not just the administrative functioning of the High Court, but crucial decisions to be taken by the High Court Collegium will be delayed or suffer from the loss/lack of experience that is gained over several months.
8. The Collegium of the Supreme Court appears to have recommended the transfer of Justice Banerjee on 16th September, 2021. This decision was made public only on 9th November 2021.This raises the worrisome question of lack of transparency and opacity in decision making by the Collegium. Even if the Collegium is privy to information that may have prompted such a drastic measure, members of the Bar and the public have a right to know the reasons for this transfer. Until that is done, the only conclusion that can be drawn is that a judge is being rebuked for discharging his duties without fear or favour.
9. Chief Justice Banerjee has passed several orders upholding constitutional rights and values of Free Speech, Secularism, Free and Fair elections, Right to Health and State accountability that may well have earned the ire of those in power. In a recent order dismissing a Public interest litigation seeking to prevent the Chief Minister of Tamil Nadu from chairing an advisory committee under the Hindu Religious and Charitable Endowments (HR&CE) Act until he takes a pledge in front of a Hindu god in a nearby Hindu temple, Chief Justice Banerjee held,

“There has to be a time when the prejudice and vendetta have to be shed particularly when it comes to practicing religion. This is a secular country and secularism implies tolerance for the other religion.”

In other cases, he castigated the AIADMK government for its inept handling of the pandemic and hauled up the Election Commission for failing to ensure proper COVID safety norms during the recent State elections. Just before the elections, he passed orders directing the Election Commission and the Puducherry police to investigate as to how phone numbers linked to aadhar cards of voters that were not available in public domain, were available with functionaries of the Bharatiya Janata Party for their election campaign. More importantly, he passed a crucial order to protect media freedom and free speech by granting interim stay of the provisions of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021.

10. It is known in legal circles in Tamil Nadu that in order to ensure a totally free and independent judiciary, inquiries were afoot under the tenure of Chief Justice Banerjee to check corruption in the judiciary. His intolerance for corruption and inefficiency is well known and widely appreciated. The instant transfer would quell any such effort to strengthen the judiciary in the State.
11. Historically transfers have been used to move upright and honest judges who passed orders against the executive to “safer” and “less important” locations. Such “punishment transfers”, as they came to be known during the infamous Emergency, send out an alarming signal that honest and fearless judges are subjected to political retribution and independence of the judiciary is under threat. Further, the power to transfer has also been used as a punitive measure when allegations of corruption or nepotism are made against a judge. In either case, whether it is “punishment transfer” or “punitive transfer” it is important that the reasons for the transfer of any judge should be made transparent in public interest, for the public ought to know if a judge is being victimised for his fearless actions or is being punished for his inconvenient actions.
12. We are therefore writing this as responsible members of the Bar, being cognisant of the necessity to insulate the judiciary from any external interference, only to ensure that the independence of the judiciary does not suffer any threat. Unfortunately, the decision of the Supreme Court Collegium and the opacity around it seem to set alarm bells ringing amidst the public and all participants in the justice system.
13. Lack of transparency and opacity in the functioning of the Collegium tend to erode the faith of the public in the functioning of the justice system. Former judges, legal scholars and jurists have been expressing their concern that the Apex Court has been functioning as an ‘executive ‘court. While there has been a refreshing change in perception in recent times, this gain should not be lost by an administrative decision such as this.
14. This representation ought not to be seen as espousing the cause of an individual but as an earnest request to protect the institution and the independence of the judiciary.

We request that the collegium may reconsider in public interest its decision to transfer Mr.Justice Sanjib Banerjee, Chief Justice of the Madras High Court to Meghalaya High Court.

Signed by: