When the Centre cleared five additional judges for Calcutta High Court last week, a curious feature caught the eye of several veteran lawyers.

Although the five names proposed by the Supreme Court collegium in February this year were cleared, there was no word on five others the collegium had recommended more than two years ago.

Among the five not yet endorsed by the Narendra Modi government for elevation as judges to Calcutta High Court is senior advocate Amitesh Banerjee.

The senior advocate is the son of Justice U.C. Banerjee, the former Supreme Court judge who had headed the commission that in 2006 ruled out any conspiracy angle to the 2002 Sabaramati Express fire tragedy in Godhra that killed 58 kar sevaks and was cited as an excuse for the Gujarat riots that erupted when Modi was chief minister.

The rejection of the conspiracy theory had gone against the Right-wing narrative that the riots were a spontaneous reaction to a diabolic plot to kill the kar sevaks.

The findings of the Justice Banerjee commission, appointed by the then railway minister Lalu Prasad, were contradicted by a commission of Justices G.T. Nanavati and A.H. Mehta, which in 2008 held that the train fire at Godhra was part of “a planned conspiracy”. Subsequently, the Nanavati-Mehta commission gave a clean chit to the then chief minister, Modi.

The five names, including that of Amitesh Banerjee, that are yet to be cleared by the Centre for elevation as judges to Calcutta High Court were recommended by the Supreme Court collegium on July 24, 2019. However, the recommendation for the five others the Centre cleared last week was made only on February 4, 2021.

According to sources, the Union government has cited no valid reason yet for withholding the names. The terms of the memorandum of procedure require the Centre to cite its objections. But if the collegium iterates the recommendation, the Centre has no option but to fall in line.

The Centre has been sitting on the five names at a time Calcutta High Court has several vacancies.

Against the total sanctioned strength of 72 judges, made up of 54 permanent and 18 additional judges, Calcutta High Court now has a working strength of 35 judges, with 37 vacancies. High court judges are initially appointed as additional judges and most are eventually made permanent judges.

On July 24, 2019, the collegium, headed by then Chief Justice of India Ranjan Gogoi and including Justice N.V. Ramana (the current CJI), had said in a resolution that was passed: “…On the basis of interaction, the material on record and having regard to all relevant factors, the collegium is of the considered view that S/Shri (1) Jaytosh Majumdar, (2) Amitesh Banerjee, (3) Raja Basu Chowdhury, (4) Smt Lapita Banerji and (5) Sakya Sen (mentioned at Sl Nos 2, 4, 5, 8, and 9 above) are suitable for being appointed as judges of the Calcutta High Court….”

The collegium added in the resolution: “…The collegium resolves to recommend that S/Shri (1) Jaytosh Majumdar, (2) Amitesh Banerjee, (3) Raja Basu Chowdhury, (4) Smt Lapita Banerji and (5) Sakya Sen, advocates, be appointed as judges of the Calcutta High Court.”

While recommending the five, the collegium had observed: “We have perused the views of the chief minister and the governor for the state of West Bengal placed in the file and the observations made therein.

“In order to ascertain suitability of the above-named recommendees for elevation to the high court, we have consulted our colleagues conversant with the affairs of the Calcutta High Court. Copies of letters of opinion of our consultee-colleagues received in this regard are placed below.

“For purpose of assessing merit and suitability of the above-named recommendees for elevation to the high court, we have carefully scrutinised the material placed on record. We have also perused the observations made by the department of justice in the file as well as complaints received against some of the above-named recommendees. We do not find any substance therein. Apart from this, we considered it appropriate to interact with all the recommendees.”

The sources said that although two years had passed since the recommendation was made, they were not aware of the Centre seeking any clarifications on the candidate judges.