COVID Mismanagement, Vaccine, Oxygen: Notable Interventions by Outgoing Madras HC Chief Justice

Chief Justice Sanjib Banerjee has made several scathing criticisms against the Centre in cases pertaining to COVID management, vaccine procurement, oxygen distribution etc. during the second wave.

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The Supreme Court collegium has recommended the transfer of Madras high court Chief Justice Sanjib Banerjee to the Meghalaya high court. The recommendation, which was made in the collegium meeting held on September 16, was published only on November 9.

Chief Justice Banerjee who hails from the Calcutta high court was appointed as the Chief Justice of Madras high court on January 4, 2021. He is due to retire from service on November 1, 2023.

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. Justice Banerjee back in April had made scathing observations against the Election Commission of India for allowing political rallies to take place even as the country was battling a deadly second wave of the COVID-19 pandemic. He had remarked that the Commission is ‘singularly responsible’ for the second wave and had even went on to observe that the “Election Commission officers should be booked on murder charges probably”.

Madras high court. Photo: Wikimedia Commons

Chief Justice Banerjee has made several scathing criticisms against the Union government in cases pertaining to COVID-19 management, vaccine procurement, oxygen distribution etc. during the peak of the COVID-19 second wave. It was his order which paved the way for Centre introducing OBC reservation in NEET-AIQ. Significantly, he had passed an interim order stipulating that the oversight mechanism envisaged in the IT Rules, 2021 to control the media by the government “may rob the media of its independence” thereby posing a threat to democracy. In another pertinent order, the Chief Justice had observed that the Puducherry unit of Bharatiya Janata Party (BJP) had misused Aadhaar details of voters for election campaigning purposes.

The transfer of Justice Banerjee to Meghalaya high court (a smaller high court with four sanctioned posts of judges as against Madras high court’s sanctioned strength of 75 judges) has raised eyebrows, as the reasons are not revealed. Against this backdrop, there is a widespread doubt if the transfer is “punitive”. The delayed publication of the collegium resolution has also added to the mystery.

It is hard to miss the similarities with the 2019 episode relating to the transfer of the then Chief Justice of Madras high court V.K. Tahilramani to Meghalaya high court. Without accepting the transfer, Justice Tahilramani had tendered resignation.

Here is a detailed discussion of some of the notable orders passed by Justice Banerjee.

Criticism against Election Commission

Chief Justice Banerjee known for not mincing any words had come down heavily on the Election Commission of India (ECI) back in April 2021 for permitting election rallies to take place amidst the COVID-19 pandemic. During the proceedings, a visibly upset Chief Justice had told the Election Commission’s counsel “Your institution is singularly responsible for the second wave of COVID-19”. He went to further orally remark, “Your officers should be booked on murder charges probably”.

The bench comprising Chief Justice Banerjee and Justice Senthilkumar Ramamoorthy had observed that the Commission had failed to enforce COVID-19 norms regarding wearing of facemasks, use of sanitisers and maintaining social distancing during election campaigning, despite court orders.

Supporters of the Chief Minister of the eastern state of West Bengal and Trinamool Congress (TMC) Chief, Mamata Banerjee, attend an election campaign rally ahead of the fourth phase of the state election, amidst the spread of the coronavirus disease (COVID-19), in Kolkata, India, April 7, 2021. Picture taken April 7, 2021. Reuters/Rupak De Chowdhuri/File Photo

Addressing the counsel for the Election Commission, the Chief Justice had further remarked, “Were you on another planet when the election rallies were held?” “Public health is of paramount importance and it is distressing that constitutional authorities have to be reminded in such regard. It is only when a citizen survives that he’ll be able to enjoy the rights that a democratic republic guarantees”, the Chief Justice had added further.

Accordingly, the bench had directed the Election Commission of India and the Tamil Nadu chief electoral officer to hold consultations with the health secretary and come up with a plan on following COVID-19 protocol on the counting day.

Expressing strong reservations against such remarks, the Election Commission had subsequently moved a petition before the Supreme Court seeking directions to restrain the media from reporting oral remarks of judges. However, the Supreme Court had refused to entertain such a plea after recognising that the freedom of speech and expression extends to reporting of judicial proceedings.

“The remarks of the high court were harsh. The metaphor inappropriate. The high court – if indeed it did make the oral observations which have been alluded to – did not seek to attribute culpability for the COVID-19 pandemic in the country to the EC. What instead it would have intended to do was to urge the EC to ensure stricter compliance of COVID-19 related protocols during elections…”, a bench comprising Justices D.Y. Chandrachud and M.R. Shah had remarked.

The Madras high court back in May 2021 had also questioned with dismay the preparedness of the Union government in relation to the management of COVID-19 pandemic.”Why are we acting only in April now though we had time for one year? Despite having a lockdown for most of the last one year, see the situation of absolute despair we are in”, Chief Justice Sanjib Banerjee had told the additional solicitor general (ASG) of India R. Shankaranarayanan. The Chief Justice had made these observations after the ASG said that the COVID-19 surge was “unexpected”. The ASG was explaining the measures taken to ramp up the availability of Remdesivir drug.

“I have never met a respectable doctor who advised to drop the guard…Who are the experts Central Government has been consulting?”, the Chief Justice had asked, adding that he did not mean to disrespect anyone.

“All that we see here is that ‘in June it will be better’. We have been relying on chance”, the Chief Justice had further said. He had further said that there was a need to act on expert advice and not ad-hocism. “We have to go in a planned and informed manner with expert advice”, he had underscored.

On Union government’s allocation of vaccines and oxygen

A bench headed by Chief Justice Banerjee back in April 2021 had directed the Union of India to look into the matter of charging people for the vaccines who are in the 18-45 age group.

“The cost of COVID-19 vaccine at government counters is 400 and 650 from private counters. It would cause a huge burden on the middle-income groups. In view of the lockdown and present economic crisis, appropriate action be taken to take care of the people from the lower-income group”, the court had remarked.

In its order, the court had also noted, “The court has made an appeal to the Union to consider how the less-privileged and, particularly those who have been rendered without basic resources or jobs in the wake of the lockdown of last year, may be able to afford vaccination at such high cost. It is hoped that appropriate steps would be taken to take care of the lowest denominations.”

Expressing concerns about the tendency of states to be rivals against each other in the “race to obtain vaccines”, the Madras high court had suggested back in May 2021 that the Union government should allocate the vaccines. Stating that “it was not good for states to rival each other… in the race to obtain vaccines”, the Chief Justice had suggested that the vaccine allocation would have to be done by the Union government.

Later, the Supreme Court also echoed similar views regarding the the vaccine policy, following which the Centre revised its policy to announce free vaccination for all in the age bracket of 18-45 years and decided to adopt centralized allotment.

Also read: ‘Are You Asking States to Compete for Vaccines?’: SC Raps Centre Over Dual Pricing Policy

Taking note of inadequate liquid medical oxygen supply in Tamil Nadu, forcing the state government to fall back on reserves, the Madras high court in May 2021 had directed the Union government to ensure equitable distribution of resources to all the states so that lives are not lost for want of oxygen.

“No court of a particular state can demand all the facilities to exclusion of others. There has to be equitable distribution of available resources…and the position should not be altered to the detriment of a particular state”, the bench headed by Chief Justice Banerjee had remarked.

Family members of COVID 19 patient in queue to take cylinder filled with medical oxygen at a plant as coronavirus cases surge across the country, in Prayagraj on Tuesday, April 20, 2021. Photo: PTI

Observations against the BJP for misusing Aadhar details of voters

Hearing a Public Interest Litigation petition filed alleging that the Puducherry unit of the BJP has misused Aadhaar details of voters for election campaigning purposes, the Bench headed by Chief Justice Banerjee had remarked,

“There appears to be a serious breach by the sixth respondent political party (BJP) in how it conducted its campaign in Puducherry for the forthcoming Assembly elections.”

The Petitioner had alleged that Puducherry unit of BJP had sent messages to the mobile numbers that were linked to the Aadhar and not on other telephones or mobile phones which were not linked to the Aadhar.

“Bulk SMS/messages/voice messages were sent on the electronic media by the political party, which amounted to resorting to campaign on the electronic media without obtaining the previous permission of the Election Commission in such regard”, the bench comprising Chief Justice Banerjee and Justice Senthilkumar Ramamoorthy had further observed.

“Apart from the unfair mileage, that the sixth respondent, a political party may have gained in resorting to a form of a campaign without obtaining prior permission therefore as required, there is the more serious matter of the privacy of the citizens being breached. This huge aspect of the matter should not be lost in the politics of the season or the hullabaloo of the attendant campaigning”, the bench had stated in its order.

Most importantly, the court had observed that the UIDAI was required to answer as to how the details and particulars furnished to it in confidence by citizens, and in the hope that the confidentiality would be preserved, may not have been adequately protected. It had been further observed that there was a credible allegation which has been squarely leveled that only mobile phones linked to the Aadhar have received the SMS/messages.

Significantly, the court added, “There is no doubt that such body would treat and guard the information regarding citizens that it possesses with a degree of responsibility and an appropriate inquiry would be conducted to ascertain the source of the leak, if any. It is completely unacceptable that such information would have been obtained by karyakartas as suggested by the sixth respondent political party.”

Podcast: With Aadhaar, the State Is Asking the People to Give Up Their Sovereignty

On the constitutional challenge to the IT Rules, 2021

A bench comprising Chief Justice Sanjib Banerjee and Justice P.D. Audikesavalu had observed in September 2021 that the Bombay high court’s order dated August 14, 2021 staying the operation of sub-rules (1) and (3) of Rule 9 of the Information Technology (Guidelines for intermediaries and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021) ought to have a ‘pan-India’ effect. Sub-rules (1) and (3) of Rule 9 mandate adherence to the Code of Ethics which is annexed to the IT Rules, 2021 and provide for a three tier structure for addressing the grievances made in relation to publishers.

Furthermore, the court had also noted in its interim order that that any action taken citing Rules 3 and 7 of the IT Rules 2021 would be subject to the outcome of the challenge to the constitutional validity of the Rules. Rule 3 speaks about the obligation to exercise due diligence by intermediaries and Rule 7 provides for coercive action against intermediaries for breach of the provisions of the Rules.

“For understandable reasons, the petitioners are wary of the oversight mechanism of the Central Government indicated as the final tier of the process of regulation. Prima facie, there is substance in the petitioners’ grievance that an oversight mechanism to control the media by the government may rob the media of its independence and the fourth pillar, so to say, of democracy may not at all be there”, the bench had recorded in its order.

The Chief Justice bench back in July 2021 had also refused to entertain the Centre’s plea to adjourn hearing of petitions challenging the constitutional validity of the Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021, notified by the Centre on February 25. The Centre had submitted before the Court that it has filed a transfer plea to get all the similarly paced matters pending before the different high courts transferred before the Supreme Court.

To this, Chief Justice Sanjib Banerjee had remarked while addressing the Additional Solicitor General,

“Merely because you filed a transfer application, does that mean that proceedings before the high court have stayed? Proceedings have not been stayed. The union should file a counter affidavit within a fortnight, and the matter to appear after 3 weeks. Since there is no stay on the proceedings, we will go ahead with the matter. The Supreme Court will have the benefit of the opinion of the high court.”

The Madras high court in July 2021 had directed the the Union government to immediately take measures for implementing OBC reservation in MBBS seats under All India Quota, across under-graduate and post-graduate medical and dental colleges of the State. A Bench comprising Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy had also observed that the Centre’s apparent attempts at deferring such implementation of OBC reservation is in abject violation of the court’s earlier order dated July 27, 2020 thereby constituting prima facie contempt of Court.

The Chief Justice Bench of the Madras high court subsequently held that Centre’s notification dated July 29, 2021 implementing 27 percent reservation for Other backward Classes (OBC) candidates in All India Quota (AIQ) seats of medical colleges in Tamil Nadu may be permissible subject to the Supreme Court’s formal approval of the same. The Court passed the judgment in a contempt plea filed by the Dravida Munnetra Kazhagam (DMK) over the delay in implementing OBC reservations for AIQ seats of medical colleges in the State for the academic year 2021-2022 despite the high court’s earlier decision directing such an implementation.

The bench however expressed its reservations regarding the validity of extending a 10 percent reservation for Economically Weaker Sections (EWS) in AIQ seats and thus observed that the same is not permissible without the Supreme Court’s approval. The Bench also held that there had been no ‘wilful or deliberate’ violation on the part of the Central government in implementing the high court’s earlier decision dated July 27, 2020 on this issue.

Also read: ‘Unreasonable Restrictions’: Software Engineer Petitions Kerala Hc Against Part II of It Rules

It was further observed that ‘on the face of it, the provision of additional reservation above 50 percent as permitted by the 103rd Constitutional amendment appears to fall foul of the Indra Sawhney case’. However, the bench refused to make any conclusive pronouncement on this issue since its validity was then pending reservation before the Supreme Court’s Constitution Bench.

The Supreme Court on September 24, 2021 set-aside the observations in the aforementioned Madras high court’s order which said that the reservation for Economically Weaker Sections(EWS) in the NEET-All India Quota can be implemented only with the approval of the Constitution Bench of the Supreme Court that is examining the correctness of the 103rd Constitutional Amendment which provided for economic reservations.

A bench comprising Justices D.Y. Chandrachud and B.V. Nagarathna held that the Madras high court’s observations were unnecessary. The bench said that the Madras high court was considering a contempt petition seeking implementation of OBC reservation in NEET-AIQ, and hence the observations on 10% EWS quota amounted to a ‘transgression of its jurisdiction’.

On secularism and the right to practice religion

Emphasising that India is a Secular Country and that secularism implies tolerance for other religions, a bench headed by Chief Justice Banerjee had in August 2021 dismissed a Public Interest Litigation plea which had urged to restrain Tamil Nadu Chief Minister MK Stalin from heading an advisory committee unless he took a pledge before a Hindu god.

“There has to be a time when the prejudice and vendetta have to be shed particularly when it comes to practicing the religion. This is a Secular country and Secularism implies tolerance for the other religion. This country also provides for freedom of expression to its citizens, which, in turn, implies lending an ear to the other point of view”, the bench had observed.

Also read: How Secular Is the Secularism of the Secular Parties?

The plea filed by one S. Sridharan averred that since the chief minister of Tamil Nadu M.K. Stalin belongs to another religion and is a non-believer, therefore, he cannot be allowed to head an advisory committee as mandated under Section 7 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. It may be noted that Section 7 (1)(a) of the Act states that the State’s Chief Minister shall be the ex officio Chairman of the Advisory Committee constituted under the Act.

Refuting such a prayer in the strongest terms, the bench observed, “Even the Constitution of India permits the oath of office to be taken either in the name of God or in the name of the Constitution. It does not appear that any religion preaches narrow-mindedness or requires followers of other religions or faith to be hurt or injured. The sentiment expressed in the petition cannot be appreciated in this day and age.”

Accordingly, the court had barred the petitioner from filing another Public Interest Litigation for a period of five years from date without obtaining the previous permission from the relevant bench.

The Chief Justice bench of the Madras high court had observed in July 2021 that the right of citizens to practice religion is subservient to their right to life and thus, the Court dismissed a plea seeking reopening of temples across Tamil Nadu. The bench had also opined that the right to life is under a threat, the right to practice religion will have to take a backseat.

The court observed that “citizens to practice religion is subservient to their right to life and when the right to life is under a threat”. With this, the court declined to entertain a plea filed in the nature of Public Interest Litigation. The court also stated that the decision to close down temples/impose restrictions must have been taken after taking into account various factors and it must have obtained expert advice and thus, it was in its right to impose reasonable restrictions.

The Madras high court on April 4, 2021 had disapproved of the prohibitory order passed by Puducherry Administration/Collector exercising her powers under Section 144 of the Code of Criminal Procedure (CrPC.). The bench headed by the Chief Justice accordingly asked the Election Commission to issue a clarification that “prohibit the unlawful assembly and movement” wouldn’t stand in the way of citizens going about their normal business and chores. Importantly, without setting aside the Section 144 order in its entirety, it was made clear that the prohibition of unlawful assembly and movement in terms of the relevant order wouldn’t affect the usual life of citizens.

During the proceedings, the Election Commission had justified the imposition of Section 144 Order stating that the Order had been imposed throughout Puducherry in every general election since 2014.

Election Commission of India. Photo: Reuters

“Thankfully, this country allows expansive freedom to its citizens and, as the Constitution provides, there cannot be any authoritarian regime possible in the country nor any regimentation of the citizens or their lives”, the bench had remarked rejecting the Commission’s contention.

Also read: Did Political Rallies Contribute to an Increase in COVID-19 Cases in India?

Safe election campaigns amidst the pandemic

A division bench comprising Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy back in April 2021 during the second wave of the pandemic had observed that the Election Commission of India, State Government and the political parties should ensure that the counting day does not become a “super-spreader” event for COVID19 pandemic. The bench was examining the steps taken by the Election Commission and the State Government to ensure COVID appropriate behavior on the day of counting of votes i.e. on May 2, 2021.

The Madras high court on March 23, 2021 had observed that in an ideal situation, there should be a level playing field where the government functionaries do not use the perks and benefits in the office while they campaign for election purposes. The bench of Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy was hearing a plea seeking a prohibition on Ministers and the like from campaigning in the elections as they hold public offices, draw a salary from the government and are in a position to exert undue influence.

Having perused the plea, the high court had noted that even though a minister may be willing to shed his official bandobast to attend a rally merely as a politician, the very status of the Minister and the requirement to give him security cover may not permit the freedom that would be required for the purpose.

“A strict Election Commission can, nonetheless, put some guidelines in place, in addition to the existing guidelines indicated in the model code, at least to ensure that the government funds are not brazenly used for campaigning purposes as is usually being indulged in at present”, the bench had observed.

Emphasis on regional/local languages to promote inclusivity

In a recent order, the Madras high court on Tuesday allowed the Union of India to conduct Kishore Vaigyanik Protsahan Yojana (KVPY) Exam, 2021 in Hindi and English alone, provided that there will be a prompt commitment from the part of Union to give an undertaking that the talent search exam will be conducted in all regional languages in the years to come.

The bench headed by Chief Justice Banerjee took note of the practical difficulties in revamping the entire process of examination at this juncture and permitted the ASG to file an affidavit by November 15, 2021 regarding the feasibility of including regional languages in subsequent exams. The high court had already stayed the conduct of exams on the previously determined date of November 7.

The court further highlighted that it is very important to conduct the exam in regional languages to make the KVPY tap into young talents across the country despite language barriers, including students from North East India, Rajasthan etc.

“As long as there is a prompt commitment from the Union of India to undertake that the talent search exam can be conducted in all regional languages from next year onwards, then there might not be any room to stand in the way. It is not possible to conduct this year’s examination in other Indian languages, hence this year’s process may be permitted to continue”, the bench further recorded in its order.

The Union government back in September 2021 informed the Madras high court that it has decided to release the Draft Environmental Impact Assessment (EIA) Notification 2020 in local languages pursuant to the court’s directions. The court was adjudicating upon a batch of petitions seeking the translation of the Draft EIA notification, 2020 into vernacular languages.

Also read: ‘Hindi Cannot Be Used for Official Correspondence With Tamil Nadu’: Madras HC

Emphasis on decentralisation of Tribunals

The Madras high court in August had imposed a stay on an office order issued by the Registrar General of the principal bench of the National Green Tribunal (NGT), which had directed that suo matters having pan-India or inter-state implications will be henceforth listed before the principal bench of at least three members.

This article was originally published on Live Law.