Judge vs Judge: How the Calcutta High Court got caught up in the state’s politics

All is not well at the Calcutta High Court.

Thursday witnessed a very unusual development, as Justice Abhijit Gangopadhyay, in an order accused another judge of the High Court, Justice Soumen Sen, of doing the bidding of the All India Trinamool Congress, West Bengal’s ruling party.

Gangopadhyay also struck down an order by a two-judge bench led by Sen, even though it is legally impermissible for a single judge to strike down an order of a larger bench of a court.

The Supreme Court took cognisance of this in a special hearing on Saturday, and stayed all the proceedings related to the matter.

These developments have exposed the deep political rifts within the Calcutta High Court bench. Scroll spoke to several lawyers familiar with the court. Though their perspectives on the roots of this chasm, differed, they acknowledged that it shows the High Court in poor light.

Gangopadhyay v Sen

The controversy stems from a public interest litigation filed at the High Court alleging irregularities in admissions in state run-medical education institutions in West Bengal.

Hearing the matter, Gangopadhyay had, on January 24, ordered the Central Bureau of Investigation to take over the inquiry in the matter. He criticised the state police, stating that he had no faith in them to conduct a fair investigation.

This order was stayed later in the day by a two-judge bench, which included Sen. The bench observed that “the right of the state to conduct fair and impartial investigation by its agencies cannot be lightly interfered with as it would result in disruption of the co-operative federal structure of the country”.

However, in a remarkable order on January 25, Gangopadhyay declared the division bench’s order illegal. He directed that the papers related to the alleged admissions scam he handed over to the Central Bureau of Investigation.

What was even more striking about this order was that it included allegations of political bias and corruption against Sen. Gangopadhyay wrote in the order that Sen had privately told another judge of the High Court, Justice Amita Sinha, to “not disturb” writ petitions pending before Sinha concerning Abhishek Banerjee, the General Secretary of the Trinamool Congress and widely seen to be second-in-command in the party. Sinha had reported this to the chief justice of the High Court, who then relayed this to the chief justice of India, according to Gangopadhyay’s order.

He wrote that Sen is “acting … for some political party” and that his actions amount to misconduct. He also brought up the fact that the Supreme Court collegium had recommended Sen’s transfer to the Orissa High Court two years ago. “Who are the persons behind him, who are saving him from such transfer whereby the order of the Supreme Court Collegium can be ignored?” he asked.

On January 27, a five-judge bench of the Supreme Court took up this matter on its own accord. It stayed all proceedings relating to the admissions irregularities matter before Sen’s bench and before Gangopadhyay. On January 29, the Supreme Court bench transferred these proceedings to itself.

Gangopadhyay and Sen had similarly butted heads in another case related to an alleged cash-for-jobs scam. Gangopadhyay had ordered the publication of the panel of candidates who had been recruited and their marks. This was stayed by a two-judge bench of the High Court that included Sen. Gangopadhyay had nevertheless in an order earlier this month insisted that his order about publishing the list could not have been stayed. Once again, on January 10, the Sen-led bench had stayed this order.

Eventually, on January 25, the Supreme Court had stayed the proceedings in the case before Gangopadhyay.

Gangopadhyay’s track record of courting controversy

Gangopadhyay, who was elevated as a High Court judge in 2018, has a history of attracting controversy due to his outspokenness and alleged disregard for the norms relating to the public conduct of judges.

Last year, in an interview to a Bengali news channel, he had criticised Abhishek Banerjee, even as he was hearing the cash-for-jobs scam case in which the Trinamool Congress leader had been accused.

The Supreme Court had taken cognisance of this, asking the Calcutta High Court chief justice to reassign the matter to another judge, noting that judges should not give television interviews related to pending matters.

In return, Gangopadhyay had ordered the Supreme Court’s secretary general to hand over the transcript of his interview that had been made available to the Supreme Court. The Supreme Court stayed this order.

In December, Gangopadhyay had directed the immediate arrest of a lawyer in his court for contempt. In response, the Calcutta High Court Bar Association had called for a withdrawal of all judicial work from his court till he tendered an apology. The logjam was resolved after Gangopadhyay visited the association chambers and persuaded its members to call off their strike.

In 2022, Gangopadhyay had criticised an order by a two-judge bench of the High Court in a matter pertaining to the cash-for-jobs scam. He had also directed journalists to make video-recordings of the proceedings related to the case in his court, leading to a heated exchange with lawyers, who objected on the grounds that doing so would turn the court into a “bazaar”. The recording of court proceedings is banned as per the Supreme Court’s rules on video conferencing.

What this says about the Calcutta High Court

Several lawyers practising at the Calcutta High Court who Scroll spoke with acknowledged that Gangopadhyay is quite open about leaning towards the Communist Party of India (Marxist), which was the ruling party in West Bengal till 2011. He is also critical of the Trinamool Congress.

Gangopadhyay had previously worked as a junior lawyer with senior advocate Bikash Ranjan Bhattacharya, who is currently a member of the Rajya Sabha from the Communist Party of India (Marxist).

Several lawyers told Scroll, on the condition of anonymity, that the Calcutta High Court bench is divided between judges close to the Trinamool Congress and those tilting towards the Communist Party of India (Marxist). There is also a small Bharatiya Janata Party lobby.

“However, this is not unique to the Calcutta High Court,” one of them said. “Such political divides exist, and have always existed, in all High Courts and even the Supreme Court.”

Another lawyer noted that judges are members of the Indian society, and like everyone else, also tilt towards particular political parties.

“Nowadays though, some judges are going about their leanings openly,” said Kolkata-based lawyer Mukul Biswas.

But he said that Gangopadhyay’s public comments are inappropriate for a judge. Biswas drew attention to the Restatement of Values of Judicial Life, a 1997 self-regulation charter for judges prepared by a committee constituted by the chief justice of India. They state that judges should “practice a degree of aloofness” in line with the dignity of their office. They should not engage in public or political debates or express views on any matter that is pending or may come before the courts. Further, judges should not give interviews to the media and should let their “judgements speak for themselves”.

Imtiaz Akhtar, Kolkata-based advocate and joint editor of the Calcutta Law Journal, had a different take. “Some judges are feeling helpless now and bursting out as they may be seeing no other way,” he said.

Akhtar said that over the last few years, the Calcutta High Court has seen a pattern in which complaints alleging scams or irregularities in government departments see single-judge benches providing relief to complainants – only for this to almost always be reversed or stayed by two-judge benches.

Several political observers in Kolkata acknowledged that the Trinamool Congress has acquired a reputation for exercising tight control over public recruitments in the state.

Jhuma Sen, an advocate at the Calcutta High Court, told Scroll that the High Court bar also had a role in this. Gangopadhyay’s order was “inappropriate and arguably falls short of judicial decorum expected of judges”, she said, but it was “symptomatic of a deeply politicised bar and its tussles with some benches over matters that are not necessarily always overtly political.” She said that these fissures had intensified in recent times.

Sen added that “the ecosystem of the Bar here takes the shape of the given day’s politics – it often mimics it and also constitutes it”. As a result, due to political proxy battles between lawyers and judges, certain cases end up getting unnecessary attention, she said.

All lawyers that Scroll spoke with, however, agreed that this diminished the reputation of the court.

Biswas said that the recent fracas is “unwarranted and unexpected”, and is not in the interest of either litigants or lawyers.

Similarly, Sen said: “In this tussle, the institution of the judiciary gets embarrassed and ordinary litigants suffer.”