In the TMC versus BJP political war, Calcutta High Court’s image takes a beating

The aftermath of the West Bengal Assembly elections has had a profound impact on the Calcutta High Court, whose image has taken a beating in the political war between the Trinamool Congress and the Bharatiya Janata Party.

On June 25, Ashok Kumar Deb, the chairman of the Bar Council of West Bengal, sent a scathing letter to Chief Justice of India NV Ramana, seeking the removal of acting Chief Justice of the Calcutta High Court Rajesh Bindal. The Bar Council is a statutory body constituted under the Advocates Act that has powers to admit and determine cases of misconduct of lawyers. Deb is also a sitting MLA of the Trinamool Congress, which won a landslide victory in the recent Assembly polls in the state.

In his letter, he made serious accusations about Justice Bindal, suggesting that he was acting in favour of the Bharatiya Janata Party and against the interests of the Trinamool Congress in cases related to the Narada scam.

Deb’s letter elicited an immediate response from four other members of the Bar Council of West Bengal, who wrote to the chief justice of India claiming he had misused his position by sending the message on the letterhead of the state bar council when majority of members did not approve nor were aware of its contents.

The BJP also criticised the letter. Amit Malviya, the head of the BJP’s Information Technology wing, who was one of the first to put out Deb’s letter on Twitter, alleged in a tweet on June 27 that Chief Minister Mamata Banerjee was using Deb to seek the removal of the acting chief justice just because the Calcutta High Court was holding the Trinamool Congress government to account for the post-poll violence that rocked the state.

Apart from the political storm the letter has created in West Bengal, it has also brought back into focus the judicial debate over the powers of the Chief Justice as the master of the roster.

Election aftermath

Justice Bindal first became a High Court judge in 2006 when he was appointed to the Punjab and Haryana High Court. Later, in November 2018, he became a judge of the Jammu and Kashmir High Court and then the acting chief justice of the Common High Court for the Union Territory of Jammu and Kashmir and Union Territory of Ladakh in December 2020.

In January 2021, Bindal was moved to the Calcutta High Court and on April 29, when the Assembly elections were underway, he became its acting chief justice.

In his letter, Deb had drawn the attention of the Chief Justice of India to the manner in which Justice Bindal has handled the criminal cases relating to the Narada scam.

The Narada scam refers to the cases of corruption that emerged from a series of sting operations carried out by television news channel Narada News sometime in 2014 in which leaders of the Trinamool Congress were allegedly seen taking bribes.

In 2017, the Calcutta High Court had ordered the Central Bureau of Investigation to take over the case. Matters came to a head in May, soon after the Trinamool began its third term in the state, when four of its leaders – ministers Subrata Mukherjee and Firhad Hakim, MLA Madan Mitra and former mayor of Kolkata Sovan Chatterjee – were arrested by the CBI.

Immediately after their arrests, Chief Minister Mamata Banerjee reached the CBI office in Kolkata and demanded their unconditional release. The BJP accused Banerjee of holding a protest outside the CBI office along with her supporters in an attempt to pressure the agency.

The same day, a CBI court granted interim bail to the four. However, this was immediately stayed by a division bench of the High Court consisting of acting Chief Justice Bindal and Justice Arijit Banerjee after the CBI petitioned the court asking for the transfer of the case out of West Bengal and to declare the CBI court order as null and void. The CBI argued that the lower court had made the grant of bail under pressure from a mob and the threat of violence.

On May 21, the controversy deepened after the bench issued a split opinion over applications filed by the four to recall the order to stay the bail. While Bindal wanted to place the four under house arrest, Banerjee wanted to grant them bail.

The matter was then referred to a five-judge bench, which on May 28 granted the four leaders interim bail.

In the meantime, Mamata Banerjee was also added as a party to the case seeking that the cases be transferred.

Letter and controversy

On June 25, Deb sent a letter to the Chief Justice of India NV Ramana questioning Justice Bindal’s conduct in the Narada cases.

Deb alleged that the stay on the CBI court’s order granting the four leaders interim bail was delivered without giving them a chance to respond. This, he said, indicated that Justice Bindal “does not have any regard for judicial propriety and has committed a mockery of judicial conscience”.

In this, he referred to the letter that Justice Arindam Saha had written to other judges on May 24, in which the judge had made scathing remarks about the conduct of the High Court.

Justice Saha had said the CBI’s case should have been referred to a single judge as there were no substantial questions of law involved. Rather, it was placed before a division bench headed by Justice Bindal himself. “The appellate side rules require a motion seeking transfer, either on the civil or criminal side, too be headed by a single judge,” Justice Saha said in the letter. “However, the First Division Bench took up the matter, treating it to be a writ petition.”

He also hit out at the decision to form a five-judge bench when the division bench delivered a split opinion on the bail. The judge argued that instead the opinion of a third judge should have been taken. “We have been reduced to a mockery,” the judge added in the letter.

Meanwhile, Deb also pointed out that the five-judge bench had repeatedly allowed CBI to file affidavits while denying the same right to Mamata Banerjee and state law minister Moloy Ghatak. This, he alleged, was a clear sign of Justice Bindal’s apparent bias. “Justice Bindal is a partial, unfair and biased judge whose continuance at High Court interferes with fair and impartial dispensation of justice.”

Mamata Banerjee had in fact moved the Supreme Court over this decision of the five-judge bench. The Supreme Court on Friday annulled the June order of the High Court and asked the five-judge bench to decide the matter afresh.

Further, Deb also asked questions about the manner in which the election petition filed by Mamata Banerjee over the results of the Nandigram constituency where she lost to Suvendu Adhikary was allotted to Justice Kaushik Chanda. The Trinamool Congress had also alleged that Justice Chanda was close to the BJP and was once part of its legal cell. An application was moved on behalf of Mamata Banerjee asking for the recusal of Justice Chanda from the case. The judge reserved orders on the application last week.

Response to letter

Meanwhile, Deb’s letter sparked an immediate response from four members of the Bar Council of West Bengal, who also wrote to the Chief Justice of India NV Ramana alleging that Deb had written the letter without the backing of the council.

“The letter is highly derisive and by no figment of imagination represents the sentiments of the majority of the members of the bar,” the letters signed by Kailash Tamoli, Samir Paul, Rabindra Nath Bhattacharya and Mihir Das said.

The four members alleged that Deb had misused the letterhead of the council. The letter, the four said, was an attempt to please the political bosses of the ruling dispensation.

The BJP has also hit out at Deb and the Trinamool Congress for trying to armtwist the High Court, which it claimed was holding the state government to account for the post-election violence that hit West Bengal following the Assembly elections results on May 2.

Master of the roster

Apart from the political fallout, the controversy has also brought back to the fore the question of the chief justice’s role as the master of the roster in High Courts and the Supreme Court.

Many of the points raised by both Deb and Justice Arindam Saha pertains to allocation of cases to benches and the formation of specific benches to deal with cases. Despite calls for reforms, the chief justice’s power to allocate cases continues to retain a heavy element of discretion, leading to situations like the one Calcutta High Court is currently facing.

In the recent past, the Supreme Court has seen several controversies relating to the roster. The most dramatic was the one during the tenure of former Chief Justice of India Dipak Misra in 2018, when he formed a separate bench to reiterate the powers of the chief justice as the master of the roster. At that point, former Union Law Minister and senior lawyer Shanti Bhushan had suggested that a panel of judges should decide on the roster rather than leaving it solely in the hands of the chief justice.