Justice Banerjee, the then Chief Justice of the Madras High Court, was proposed to be elevated to the Apex Court at a time when controversy was looming over the elevation of Justice K.M. Joseph, the then Chief Justice of the Uttarakhand High Court. Though name of Justice Joseph was recommended much prior to the proposal for elevation of Justice Banerjee, his file was not approved by the Centre at the right time.

Later, when the Collegium reiterated its proposal to elevate Justice Joseph, due to some alterations in the seniority, Justice Banerjee (and also Justice Vineet Saran) became senior to Justice Joseph. This alteration in seniority along with untimely death of Justice Mohan M. Shantanagoudar cleared the way for Justice Banerjee to remain in the Collegium for about two months before her retirement.

After taking oath as a Judge of the Highest Court of the land on 7^th August 2018, Justice Banerjee served for about 49 months and 16 days. While delivering her farewell speech, she regretted that a considerable period of her stint at the Supreme Court was 'eaten up' by the COVID pandemic. However, she has left behind an indelible mark of her jurisprudence through a number of pronouncements ranging from questions of constitutional importance to disputes relating to family.

Earmarking the Legislative Domain of the States:

The constitutional and legal acumen and expertise of Justice Banerjee can be well deciphered from the reasonings given by her while deciding cases of constitutional importance. An intriguing issue reached a Constitution Bench in 2019, of which she was a part. The primary question was "Whether a State Legislature can enact a law which will affect the jurisdiction of the Supreme Court?" The question emanated from a matter in which the vires of Section 13(2) of the Chhattisgarh Rent Control Act, 2011 was challenged.

While speaking for the Constitution Bench, Justice Banerjee held that Section 13(2) of the Chhattisgarh Rent Control Act, 2011, is unconstitutional as the State Legislature lacked legislative competence to enact a provision providing direct appeal to Supreme Court of India. She pointed out that there is no provision in the Constitution which saves State laws with extra-territorial operation, similar to Article 245(2) which expressly saves Union laws with extra-territorial operation, enacted by Parliament.

Further, she held that in view of Entry 77 of the Union List, only Parliament has the legislative competence to legislate with respect to the constitution, organization, jurisdiction or powers of the Supreme Court. Again, it was noted that Entry 64 of the State List and Entry 46 of the Concurrent List enable the State Legislature to enact law with respect to the jurisdiction and powers of Courts except the Supreme Court. Hence, she concluded, the said Entries expressly debar the State Legislature from legislating with respect to the jurisdiction of the Supreme Court.

Headcount v. Majority:

Towards the end of her term, she was assigned with a solemn task of heading a Constitution Bench which was required to decide a very interesting question which originated from a reference made to it by a Division Bench of Justices Rohinton F. Nariman and Sanjay Kishan Kaul in 2017, wherein they had questioned,

"13) Let us consider a hypothetical example, where a 2 Judge Bench has laid down the law in a particular way. If nine other 2 Judge Benches have followed the first 2 Judge Bench decision, is it open for three learned Judges to overrule all of the 2 Judge Benches i.e. twenty learned Judges? The obvious answer would be yes, because the 3 Judge Bench is really overruling the first 2 Judge Bench decision, which was merely followed by nine other 2 Judge Benches. As against this, however, if a unanimous 5 Judge Bench decision is overruled by a 7 Judge Bench, with four learned Judges speaking for the majority, and three learned Judges speaking for the minority, can it be said that the 5 Judge Bench has been overruled? Under the present practice, it is clear that the view of four learned Judges speaking for the majority in a 7 Judge Bench will prevail over a unanimous 5 Judge Bench decision, because they happen to speak for a 7 Judge Bench. Has the time come to tear the judicial veil and hold that in reality a view of five learned Judges cannot be overruled by a view of four learned Judges speaking for a Bench of 7 learned Judges? This is a question which also needs to be addressed and answered."

In a judgment rendered last week, the Constitution Bench headed by Justice Banerjee concluded that a judgment delivered by a larger Bench will prevail irrespective of the number of Judges constituting the majority. To illustrate, the judgment of a 7-Judge Bench delivered with 4:3 majority will prevail over a unanimous 5-Judge Bench.

She referred to the opinion expressed by Justice S. Ravindra Bhat in the case concerning the constitutional validity of 'Maratha quota', wherein he held,

"It would be useful to notice that unanimity in a given bench (termed as a "supermajority") – denoting a 5-0 unanimous decision in a Constitution Bench cannot be construed as per se a strong or compelling reason to doubt the legitimacy of a larger bench ruling that might contain a narrow majority (say, for instance with a 4-3 vote, resulting in overruling of a previous unanimous precedent). The principle of stare decisis operates both vertically- in the sense that decisions of appellate courts in the superior in vertical hierarchy, bind tribunals and courts lower in the hierarchy, and horizontally- in the sense that a larger bench formation ruling, would be binding and prevail upon the ruling of a smaller bench formation. The logic in this stems from the raison d'etre for the doctrine of precedents, i.e. stability in the law."

She also pointed out that the above opinion was in fact duly concurred to by Justices L. Nageswar Rao and Hemant Gupta in that case. Therefore, having regard for the aforesaid ruling and the stipulations made under Article 145(5) of the Constitution, she concluded that concurrence of a majority of the Judges at the hearing will be considered as a judgment of the Court.

Pragmatism Over Technicalities:

Her judgments majorly reflect her pragmatic judicial mind, which largely remained undeterred by extraneous considerations. Her judgments gave an impression that she was alive to the application of law at the ground level, rather than keeping her domain restricted merely to laying down or adjudicating points of law. Further, her unique approach to interpret provisions of law in realistic manner resulted in multiple split verdicts, when she disagreed with her sister/brother Judges who resorted to strict interpretation. In the following instances, she has shown her pragmatic approach, rejecting hyper-technicalities.

In 2020, an issue arose for consideration before a Division Bench of Justices R. Banumathi and Indira Banerjee as whether a Family Court has the jurisdiction to entertain a petition for maintenance under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. Differing from the reasoning handed down by Justice Banumathi, Justice Banerjee held,

"In my view, a Family Court having jurisdiction is to be deemed to be the Court of a Magistrate, for the purpose of deciding the claim of a divorced Muslim Woman to maintenance, on a harmonious conjoint reading and construction of Sections 7 and 8 of the Family Courts Act with Sections 3(2), 3(3), 4(1), 4(2), 5 and 7 of the 1986 Act for Muslim Women, in the light of the overriding provision of Section 20 of the Family Courts Act."

She held noted that a literal and rigid interpretation of the expression "Subordinate Civil Court" to single out divorced Muslim women seeking maintenance from their husbands, access to Family Courts when all other women whether divorced or not and even Muslim women not divorced can approach Family Courts would be violative of Article 14 of the Constitution.

Justice Banerjee proved her practical approach again when a Division Bench led by her delivered a split verdict, wherein she and Justice Ajay Rastogi differed with the reasonings and conclusions reached by each other. The question was whether the age of an individual or the number of years he served in the job would determine the basis of retirement in cases where he was employed before attainment of the age of majority.

She observed that the prescribed age of retirement for employees of the category to which the appellant belonged was 58 years, which was later increased to 60 years. Thus, she concluded that the decision of the respondents to retire the appellant before he attained the age of 60 years as per his actual date of birth, as recorded in the service records cannot be sustained.

Earlier this year, a Division Bench led by her was deciding whether Section 155(2) of the Code of Criminal Procedure will apply to the investigation of an offence under Section 23 of the Protection of Children from Sexual Offences Act, 2012 (POCSO). As per Section 155(2) Cr.P.C., a police officer cannot investigate a non-cognizable offence without the order of a Magistrate. Section 23 of POCSO relates to the offence of disclosure of the identity of the victim of the sexual offence. Justice Banerjee disagreed with the argument that Section 19 excludes Section 23 by saying:

"The language and tenor of Section 19 of POCSO and sub- sections thereof makes it absolutely clear that the said Section does not exclude offence under Section 23 of POCSO. This is patently clear from the language and tenor of Section 19(1), which reads ".... any person who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed......". The expression "offence" in Section 19 of POCSO would include all offences under POCSO including offence under Section 23 of POCSO of publication of a news report, disclosing the identity of a child victim of sexual assault."

However, the above view was not concurred to by the other Judge on the Bench, Justice J.K. Maheshwari. Accordingly, the verdict was a split one and was referred to the CJI for allotting the matter to a 3-Judge Bench.

Notably, she also observed that the provision of Section 23 of POCSO cannot be allowed to be diluted. She also held that a child against whom offence under Section 23 of POCSO has been committed, by disclosure of her identity, may require special protection, care and even shelter, necessitating expeditious investigation for compliance of sub-sections (5) and (6) of Section 19 of POCSO.

Another case, i.e. Krishnaveni Rai v. Pankaj Rai & Anr. was before a Division Bench led by her which involved the question as to whether a marriage contracted during the pendency of an appeal from a divorce decree is void ab initio, especially when such appeal is filed after expiry of the period of limitation. Clarifying the position of law, Justice Banerjee held that it could never have been the legislative intent that a marriage validly contracted after the divorce and after expiry of the period of limitation to file an appeal from the decree of divorce should rendered void on the filing of a belated appeal.

In another instance, in the case Dr. Rohit Kumar v. Secretary Office of Lt. Governor of Delhi & Ors., she came to the rescue of a doctor who failed to secure admission into PG course as he was denied 'study leave' due to COVID-19 situation in Delhi. She remarked, "It would be a travesty of justice to deny relief to the Doctor, who had to make a personal sacrifice in the larger public interest, to serve the cause of humanity". She observed that there has not been any lapse on the part of the Doctor, who could not join the post graduate course, due to the denial of Study Leave by the Government pursuant to a legitimate policy decision and in response to the call of duty. Therefore, he cannot be denied relief on the 'hyper technical ground' that the Government authorities had not breached any rules or regulations.

High Regard for Rights of Individuals/Entities:

During the lockdown for COVID, a Delhi resident was accused of making a Facebook post suggesting that the lock down restrictions were not appropriately implemented by the State of West Bengal in a particular area. Investigating Officer at Ballygunge Police Station thereafter issued summons to her under Section 41A, Cr.P.C. She moved the Calcutta High Court which directed that no coercive steps would be taken by the State against her during the pendency of the investigation. However, the court directed her to appear before the Investigating Officer, if a fresh notice is issued under Section 41A with ten days' prior intimation.

When she approached the Supreme Court, a Division Bench of Justices D.Y. Chandrachud and Indira Banerjee, while granting her relief, held,

"Cognizant as the Court is of the underlying principles which restrain the exercise of judicial review in the matter of police investigation, equally, the court must safeguard the fundamental right to the freedom of expression under Article 19(1)(a) of the Constitution. There is a need to ensure that the power under section 41A is not used to intimidate, threaten and harass."

Similarly, in Hari Krishna Mandir Trust v. State of Maharashtra & Ors., a Division Bench of Justices Indu Malhotra and Indira Banerjee observed that in the absence of any proceedings for acquisition or for purchase, no land belonging to a trust could be vested in the State. Speaking for the Bench, Justice Banerjee referred to Article 300A of the Constitution and observed,

"The right to property may not be a fundamental right any longer, but it is still a constitutional right under Article 300A and a human right as observed by this Court in Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and Others. In view of the mandate of Article 300A of the Constitution of India, no person is to be deprived of his property save by the authority of law. The appellant trust cannot be deprived of its property save in accordance with law."

She reflected her reverence for the fundamental rights of individuals and her conviction to protect them when she quashed an externment order passed against a journalist. She held that an externment order may sometimes be necessary for maintenance of law and order. However, the drastic action of externment should only be taken in exceptional cases, to maintain law and order in a locality and/or prevent breach of public tranquillity and peace. Further, she held that such an order, which has extreme ramifications on the fundamental rights of individuals, cannot be passed on flimsy grounds.

Reaffirming the Role of Constitutional Courts:

In Hari Krishna Mandir Trust (supra) Justice Banerjee significantly held that the High Courts exercising their jurisdiction under Article 226 of the Constitution, not only have the power to issue a Writ of Mandamus or in the nature of Mandamus, but are duty bound to exercise such power, where the Government or a public authority has failed to exercise or has wrongly exercised discretion conferred upon it by a Statute, or a rule, or a policy decision of the Government or has exercised such discretion mala fide, or on irrelevant consideration. In all such cases, the High Court must issue a Writ of Mandamus and give directions to compel performance in an appropriate and lawful manner of the discretion conferred upon the Government or a public authority. In doing so, she has redefined the compelling duty of the High Courts to come to the rescue, of individuals/entities who are aggrieved by the action/inaction of authorities, without any fail.

In Padma Mishra v. State of Uttarakhand & Anr., a Division Bench headed by Justice Banerjee was considering the appeal against an order of the High Court of Uttarakhand dismissing a writ petition filed for quashing of an FIR instituted against the petitioner under Sections 2/3 of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986. While dismissing the appeal, Justice Banerjee held that in proceedings under Article 226 of the Constitution of India, the High Court does not adjudicate the correctness of the allegations in an FIR and the Court may only intervene in exceptional cases, if the allegations made in the FIR ex facie do not disclose any offence at all. 

All the above noted cases collectively constitute a Jurisprudence which was composed of sharp judicial acumen, respect for pragmatism with a concrete sense of justice. Further, the most notable feature of her judicial legacy was her unfailing determination to provide a 'humane touch' to her rulings. It is well expected that her contributions to the field of law will be respected by innumerable members of legal fraternity, women and men alike.

The author is a Post-Graduate in Law with a specialization in Constitutional Law from National Law University Odisha, Cuttack. He also covers Orissa High Court for Live Law.