A Journey Through Notable Judgments of The Newly Sworn-In SC Judges

Three new judges— Justice Indira Banerjee, Justice Vineet Saran and Justice KM Joseph were sworn in on Tuesday at 10:30 am in the Chief Justice’s Court, raising the total number of judges to 25, as against the sanctioned strength of 31 judges. A few of the notable judgments delivered by these judges during their tenure at High Court are presented below.Justice Indira Banerjee.Justice Banerjee enrolled as an Advocate in July, 1985, and practiced extensively on the Original and Appellate Sides of Calcutta High Court. She was appointed as a Permanent Judge of the High Court in February, 2002, and was transferred to Delhi High Court in August, 2016. She was, thereafter, elevated as the Chief Justice of Madras High Court, a post of which she took charge in April, 2017.One notable judgment of Justice Banerjee in Calcutta High Court dealt with the issue of consent of woman for sexual intercourse. It was a case where a man was convicted of abducting and raping a woman. The accused had defended himself stating that he and the woman were in a relationship who had willingly came out with him, and that there was no resistance from her against sexual intercourse. The brother judge of Justice Banerjee in the bench, Justice Indrajit Chatterjee, acquitted the accused holding that he had consensual sex. The fact that the woman did not attempt to run away from his company, and the absence of external injury marks in her body persuaded Justice Chatterjee to hold so.However, Justice Banerjee dissented from that view, and held that mere absence of physical injuries cannot be a ground to presume that sex was consensual. She held that even if it was assumed that the victim harboured the wish to marry the accused appellant for which she readily went to the house of the accused appellant, when he called her, it cannot be deduced that of her own free Will and volition, she consented to casual sex with the accused appellant, knowing that they might never get married.Explaining the nature of free consent for sex, Justice Banerjee succinctly held : "The consent should be spontaneous, stemming from the victim's own desire to sexually unite with the accused. A mere act of helpless resignation in the teeth of compulsion whether by reason of threat of physical violence, emotional blackmail, fear, coercion or duress cannot be consent, as understood in law. In this context it may be pertinent to note that there is a difference between submission and consent and mere non - resistance and / or passive giving in cannot be consent as understood in law. In my view, even emotional blackmail that might reasonably be perceived as a veiled threat to end an existing relationship by calling off an engagement or a marriage proposal would also vitiate the consent".(Laxmi Kantha Kamath v. State of West Bengal 2015 CriLJ 2220)Her judgment in Srei Equipment and Finance Pvt Ltd v. Khyoda Apik and others AIR 2016 Cal 293 is noteworthy for the clinical analysis of different provisions of Arbitration and Conciliation Act 1996. It was held that an arbitration award can be executed only by a court which could exercise jurisdiction under Section 34 of the Act , and that Court cannot refuse to execute award on ground that assets of judgment debtor were located beyond its jurisdiction.As the Chief Justice of Madras High Court, Justice Banerjee had to deal with several prominent and contentious issues like the disqualification of AIADMK MLAs by by the Speaker of Tamil Nadu Legislative Assembly. There too Justice Banerjee delivered a dissenting opinion. While Justice Banerjee upheld the decision of the speaker to disqualify the MLAs, her brother judge Justice Sundar disagreed. As the Chief Justice, she referred the matter to be heard by the next senior judge. Her act of nominating the next senior judge to hear the matter, instead of naming any specific judge, was commended by many in the legal circles as an act of fairness and propriety.Justice Banerjee delivered yet another dissenting judgment in the case concerning the validity of TRAI Regulations. In October 2017, she authored a judgment, laying down detailed guidelines for recording of statements under Section 164 CrPC and conduct of test identification parade.During her tenure, the Madras High Court witnessed the rarity of having an all-women bench. Shortly after her appointment as CJ, she sat in combination with Justice Bhavani Subbaroyan. Later, she sat with Justice R. Hemalatha. Towards the end of her tenure in Madras High Court, she shared bench with recently appointed Justice P.T Asha. Presiding this bench, she authored the judgment holding that arrest of an accused from a court room is illegal, and punished the policemen who carried out such arrest for contempt of court.Justice Vineet Saran.Justice Vineet Saran enrolled as an Advocate with the U.P. Bar Council in July, 1980, and practiced in the Allahabad High Court till February, 2002, when he was elevated as a Permanent Judge of the High Court. He was...

A Journey Through Notable Judgments of The Newly Sworn-In SC Judges

Manu Sebastian

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