Calcutta HC Judge has been asked to personify himself as Julius Caesar's wife!

 

Victorious warriors win first and then go to war, while defeated warriors go to war first and then seek to win.

The above stated expression duly addresses the pending petition— EP No. 1 of 2021 and the disposed of recusal application I A No. GA 1 of 2021, both of which are instituted under the original jurisdiction of the Calcutta High Court in a sequence of one after another.

On 2 May 2021 when the majority of Bengal was celebrating and embracing a combination of saffron, white and green coloured twin flowers, the outcome of the Nandigram polls egregiously checkmated the Queen whose queendom, by then, had already confirmed its incumbency to the cabinet of West Bengal on and from 2021.

Yes, you are right, the Queen herein is West Bengal's present Chief Minister Mamata Banerjee. And as you know the queen, mentioning the name of the unexpected loosened kingdom's King would be like informing the informed. In the game of chess, the king gets a checkmate, not the queen but here it is so and that is why it is surprising.

Banerjee's Election Petition

Banerjee knocked on the doors of the Calcutta High Court with an election petition accorded under the People Representatives Act, 1951. On 15 June 2021, her petition was specially assigned to a bench headed by Justice Kaushik Chanda.

On 16 June 2021, the very next day, Banerjee wrote a letter [praying for the reassignment of her petition to another bench] to the present Acting Chief Justice (CJ) of the High Court, canvassing her 'apprehension of bias' by recollecting the instance of her capacitated reluctance to an application of the then Chief Justice of the said court in the year 2021, that sought her view regarding the judicial promotion of Justice Kaushik Chanda from an ad-hoc (additional) to a permanent judge of the said court. The rationale advanced by her for the 'apprehension of bias' was that Justice Kaushik Chanda is aware of such reluctance [and he might take revenge for that reluctance in his judgement of this petition].

The said petition waited for two more days therefrom (15 June 2021) to enter into the sitting house of the assigned bench on 18 June 2021, only to get it listed on 24 June 2021, at the expense of burying the existence of that letter by the CM's counsel (the letter written to the CJ[Acting] on June 16, 2021) before the said judge.

Media Trial

The period between 18-24 June 2021 was occupied by a non-court trial at the platforms of free speech (media) exhibiting Justice Kaushik Chanda's days as a lawyer when he was part of the legal aid of BJP. Twitter was exploited by two TMC leaders, one warming the seat of the Rajya Sabha and another of the Lok Sabha. Paradoxically, a trial in social media had been carried out by frescoing the concerns of the politicians to protect the Judiciary despite them being its absolute abuser.

TMC MP from the Lok Sabha, Mahua Moitra tweeted, "MiLord- get a conscience or at least a better veil! 

Mamatadi’s Nandigram petition listed before Justice Kaushik Chandra, member of BJP’s legal cell & BJP lawyer in numerous appearances

Save our judiciary!"

MiLord- get a conscience or at least a better veil!

Mamatadi’s Nandigaram petition listed before Justice Kaushik Chandra, member of BJP’s legal cell & BJP lawyer in numerous appearances

Save our judiciary! pic.twitter.com/taa4Jch5c7

— Mahua Moitra (@MahuaMoitra) June 18, 2021

If somebody wants to abuse me, it is his liberty; I have taken an oath to protect his liberty 

 
~Retired Supreme Court Judge Jasti Chelameswar

The above expression is indicating not to argue on the language thereof, but Madam MP advised the concerned court to choose a binary wherein one is to get a 'conscience' and the other is to get a 'better veil' (a piece of cloth used to cover the face). Her advice is compatible considering her occupation because it is what that the politicians do practice, without fear and favour, as they immediately envelop their surreptitious ethos with the same veil that she advised to the Judge but the practical implications of the oath of a Judge are distinctive. And if anyone is assuaging his/her livelihood by this so-called 'free speech' then let her do it because the unemployment rate is surging and politics is that occupation which, till now, is free from unemployment at the expense of manufacturing unemployment for the common outsiders. At least, we Indians can say that a segment of our society is exponentially employed.

Recusal Application & Letter Controversy

On 23 June 2021, a recusal application was filed at the instance of the petitioner. It inked that the gavel of Justice Kaushik Chanda for this petition has been coloured with conflict of interest because in his lawyer's days he had professionally devoted his jurisprudent mind to the cause of BJP before the said court. (In every client-based profession, the devotion of oneself to the client’s cause without considering the colour is, indeed, considered as the first line of the code of conduct.)

The Letter Controversy

On 24 June 2021, when the bench of that said judge arose, his lordship questioned why he was not apprised about the existence of such a letter on the very first day.

As it appears that on 16 June 2021, the CM addressed that letter to CJ(Acting) of the said court and the election petition came for mentioning before Justice Kaushik Chanda on 18 June 2021.

Here, it can be inferred that his lordship was unknown of that letter till 18 June 2021, but by 24 June 2021, he had become cognizant of that letter. Therefore, from 16-18 June, he was uninformed by both the petitioner and the said court’s administrative jurisdiction.

Now at this juncture, two questions arise— Was it the fault of the administrative communication at the effort of the Calcutta High Court during that period? And why did the petitioner not disclose the existence of that letter to his lordship?

In context to the CM's counsel's answer to the said question, Justice Chanda observed, "I repeatedly asked Mr. Singhvi (petitioner's lawyer) as to the reason for such suppression on the first date of hearing. Mr. Singhvi replied that since a formal application was yet to be filed, there was no mention of recusal...This apparently attractive submission of Mr. Singhvi really does not jibe with the series of incidents that immediately followed after the Court proceeding was complete".

The answer to the first question is not realistically known to me as I'm not versed with the administrative obligations of the said court. But trying to understand the fundamentality of the submission advanced by CM's senior counsel regarding the suppression of the letter to Justice Chanda, I have concluded by holding that according to the said senior counsel as that letter (addressed to the CJ by the petitioner on 16 June 2021) was not supported by an affidavit and it was also not a formal recusal application, the same had not been transpired to his lordship. But in my humble opinion, that letter was a curtain-raiser for the subsequent recusal application that was filed on 23 June 2021. It is ostensibly appearing that the letter did not have the legal wheels and the administrative side presided by the CJ of the said court was not obligated by that letter, but the corollary is that the communication of such letter from the administrative jurisdiction of the said court to Justice Chanda could have avoided by want of legal acceptability.

Yes, it is a codified law that the court of law will consider only those averments which are supported by an affidavit but not otherwise. But I would like to invite your reminiscent memory of the order of 17 May 2021, authored by the Honorable division bench of the said court, whose effect stayed the competently granted bail of 4 accused of Narada case and it is on record that such order was pronounced based on a letter having a missing affidavit.

At that time, the court took cognizance of the CBI's framed letter by reasoning that an extraordinary situation is the mother of that letter. Therefore the court can take cognizance of a letter supported by no affidavit in an extraordinary situation.

On the night of 17 May 2021, the honourable court had observed this as one of the substances for considering a situation as extraordinary, "This court has been called upon to deal with an extraordinary situation where the Chief Minister of the State can sit on a dharna outside the office of the Central Bureau of Investigation... ''

Incidentally, the 16 June 2021 letter was also authored by the same person, i.e., the Chief Minister. Is it not extraordinary that a CM is apprehending the biases of a judge for the reason that her reluctance to his judicial promotion is known to him? According to the observation of Justice Chanda, "The unfortunate part of the episode is that the letter addressed to the Chief Justice was also deliberately made public on 18 June 2021, and had been disclosed in the recusal application too. That letter contained confidential information concerning the appointment of a Judge of the High Court, and the petitioner, being the Chief Minister of the State, who took the oath of secrecy, was constitutionally obliged to maintain the secrecy of such information. In all probability, this has been done in a bid to ensure that somehow, the case is not heard by this Bench". It is indeed, that such letter, ensuingly, had been made public at the expense of dispensing the CM's secrecy oath hence the constitutionally mandated unknown information got known.

The letter promulgated, tweets posted and non-court trials conducted regarding the judge, petition and apprehension of bias, all began on and from 18 June 2021, the day on which Justice Chanda agreed to list that petition for hearing.

It is a procedural concept that when a case is mentioned (to get it listed for hearing) before a bench it is the judge's prerogative whether to direct its listing for hearing or not. In simple words, it depends upon the judge's wisdom whether he/she will hear the mentioned case or not.

Therefore, if Justice Chanda had been apprised by the said court's administration or by the petitioner about such a letter then his lordship, at first, may have not considered the listing of the election petition for hearing, rather his lordship could have asked the petitioner to first file that same recusal application for the convenience of delivery of justice. As his lordship reiteratively questioned the reason for the concealment of such a letter on the day of mentioning, it does imply that if he had been aware of that letter his lordship would have dealt discretely with the circumstances and if it had happened, then such tendentious pre-drawn map of the breeding rabbits would have not been able to procure such numbers of venomous controversies.

The spell of events that took place on and from 18 June 2021, transparently depicts why the C.M's counsel remained taciturn on that day but if the court had communicated to Justice Chanda about that letter, things would have emerged distinctively. Therefore the administrative jurisdiction of the court might not be obligated to communicate that letter to the Judge but its incommunicado had indeed awarded the opportunity for which some political actors were waiting.

The retro-activeness of the court has furnished it a bill of questioned integrity but its pro-activeness would have thwarted it to award the expenditure of ₹5 lakh to the framer of such a bill.
 

Judge being biased?

Now let's arrive at the factual matrix of the recusal application filed by Banerjee that comprises of newspaper articles portraying sensational political court cases of BJP represented by his lordship in his lawyer's days, two tweets from 2014 and 2015 on the same and the reluctance of the CM in respect of his lordship's promotion from an additional to a permanent judge.

There is no such codified law in India concerning the recusal of a Judge. The principle that governs it is 'Nemo judex in re sure' which means that no one should be a judge in their cause, hence, no one can adjudicate a matter in which he/she is having an interest. The reasoning that is applied in courts of India regarding recusal is the test of 'real likelihood of bias' wherein the facts advanced for such recusal are perused by the concerned judge for ascertaining that whether or not such facts can give rise to reasonable apprehension in a litigant's mind. Simultaneously, the judge should also satisfy whether or not a well-informed reasonable man would apprehend bias but not a common man. Therefore whether or not the judge is biased to a litigant is out of the equation in deciding such a case.

It is apparent that Justice Chanda did share a relationship with the BJP but the relationship was with its legal cell (which the photos themselves are evidencing). Thus, it was a professional relationship.

Therefore, is Banerjee implying that the advocates who are aspiring to be judges should take a case only after ascertaining whether a client could become a litigant before his bench one day?

His lordship's pecuniary relationship with the BJP in his days as a lawyer has also been alleged.

The High Court judges receive their salary from the Consolidated Fund of the State and no money can be withdrawn from this fund without the State Legislature's approval. Now if tomorrow a private litigant moves to the court for enforcing his fundamental rights eviscerated by the State and he takes the plea that the judge is having pecuniary relationship within the legislative wing of the government as the fund from where a judge is getting his salary is operated by the consent of the legislature where the majority forms the present-day government. Then what will happen?

For a High Court Judge's appointment, the CM and the Law Ministry of the State plays a passive consenter role. If a litigant, at any day, apprehends that as a political structure in some way or the other is responsible for the appointment of a judge, a judge would be mostly smelling the flavour of the government then what will happen. Nothing, because a lawyer does not identify himself with the client but simultaneously he remains loyal to the client.

A judge is constitutionally entitled to receive his salary from the government and so does the lawyer from his client.

CM Mamata Banerjee believes that Justice Kaushik Chanda was aware of the fact that she had objected to his promotion. Then the first question arises that how a judge would officially know about the consents and objections to his appointment or promotion? Such things are secrets, but they may have been leaked out, according to Mamata Banerjee. But, is it not court-shopping that a judge whose appointment I have consented to and hence fit eligible dispensing justice, will only buy justice from him but if I objected the same I would not be shopping from his court?

Does justice mean the meeting of the minds of parties and judges or is it a dispassionate perusal of facts and applicable law by a judge? Does justice mean a contract between parties and judges where the meeting of minds is pivotal for concluding the contract of justice?
 

Judge's Recusal

Despite not agreeing with the arguments advanced by the senior counsel of the applicant, his lordship recused from the case and reasoned such action by observing that for the interest of justice and to deter the promotion of some opportunists who are selling controversies thereof, he recuses.
 
"Since the two persons involved in this case belong to the highest echelon of the State politics, in the name of saving the judiciary, some opportunists have already emerged. These trouble-mongers will try to keep the controversy alive and create newer controversies...It would be contrary to the interest of justice if such unwarranted squabble continues along with the trial of the case, and such attempts should be thwarted at the threshold. The hearing of the case should proceed seamlessly, like any other litigation before this Court," Justice Chanda added in the order.

Recusal perhaps was the best option considering the aftermath but the acts that manufactured the recusal symbolized the barking march of unscrupulous entities over the integrity of the judiciary.

The title of this instant article depicts the words— 'Julius Caesar's wife' which were pronounced by CM's counsel Abhishek Manu Singhvi during his submissions before the court and Justice Chanda frames the counsel's words like this— "Mr Singhvi submitted that the Hon’ble Judge of this Hon’ble Court should be like Caesar’s wife, above suspicion, and it is not worth getting involved in the controversy. Mr. Singhvi urged this Bench to "recuse graciously".

This phrase comes from a story about the Roman ruler Julius Caesar in which a man named Publius Clodius Pulcher sneaked into a party to seduce Caesar’s wife, Pompeia. This led to Publius’s arrest and trial.

After the trial, Caesar divorced Pompeia. When people questioned what this might have had to do with the trial of Publius, Caesar said, "My wife ought not even to be under suspicion." Because Pompeia was under suspicion of illicit behaviour, Caesar felt that he had to divorce her to protect his dignity.

Therefore a public figure's dignity is of utmost importance and it is vulnerable even to speculation.
Here the judge is referred to as Caesar's wife without mentioning who Julius Caesar is.

This phrase is partially applicable in this context as only 50 per cent of it applies and the other part does not. The part that applies here is that this phrase advises the wife of Caesar to be above suspicion for the reputation of his colossal husband, similarly, on the other side, the CM's counsel asked the judge to be that same wife.

The part that does not apply here is the decision making part as the story behind that phrase says that it was Julius Caesar who had then exercised his authority as a decider to determine the chances of perceived suspicion against his wife and finding such existence, he divorced his her but here it has been the wife, i.e., Justice Chanda who has exercised his authority to decide his recusal matter. Hence there Julius Caesar exercised the authority upon his wife as opposed here the wife who is the judge, has exercised his authority upon him.

Therefore the phrase is partially applicable and a half correct idea is ineligible to be used.

Hence, the phrase invoked by the CM's counsel stands null in my humble opinion. Here, Justice Chanda is himself both Julius Caesar and his wife.

The blindfold, scales and sword of Justitia form the equilibrium of Justice delivery wherein the blindfold keeps the other two impartial but here it is in question.

If you want to read the High Court's judgement on the recusal case, click here.

Views are personal

(Edited by Siddhant Sharma)