“When there is an oppressive state, the hope is in the judiciary,” he said. Justice Muralidhar opined that the constitution protects both the strong and the weak, but more the weak. “It is the judiciary that can act as a check on excesses by the majority and protect the weak against the strong”, he said speaking at the event organized by the Academy for Advanced Legal Studies and Training.

“There is a tendency in governments to control other organs of the state. This is not a new phenomenon. We have to learn from history. We have to see how strong a judiciary we can be to anticipate this and still stand on the side of the weak, the oppressed, the dissenter, the minority because for them, the hope is the judiciary” he said.

In his over 90 minute, interactive presentation, Justice Muralidhar also highlighted that the essential facet of judicial functioning is impartiality and fearlessness. He said that the constitution itself must be seen as a statute limiting state power. “To check the excesses of the state you need an independent and impartial judiciary”, he said.

Justice (Dr) S Muralidhar, before his recent retirement, served as the Chief Justice of Orissa High Court between January 2021 and August 2023. During his 17-year-long tenure, he also served as a judge of the Punjab and Haryana High Court and Delhi High Court.

He also said that when orders of the Court are not respected and are overlooked, the legitimacy of court functioning is challenged. He highlighted this as one of the factors affecting the independence of the judiciary. He pointed out the recent case of extension of the term of the director of the Enforcement Directorate by the Supreme Court to illustrate this.

“This is a serious issue, we have so many instances. The most recent example is the extension of the term of the Director of ED. Where the central government came back and said that notwithstanding your judgment we still need more time to find a replacement.”

He also referred to the recent stand of the Centre before the Delhi High Court in the Newsclick case, where the court was informed that the Centre is planning to file a review against the judgment in Pankaj Bansal V Union of India, where the Supreme Court has held that the grounds of arrest need to be furnished in writing to the arrestee under the Prevention of Money Laundering Act.

“Another instance is the recent judgment by Justice Bopanna and Sanjay Kumar on grounds of arrest being furnished to the arrestee under PMLA. The government has already told the Delhi High Court that it is filing a review,” he said.

The well-recognised former judge, Justice Muralidhar also spoke on executive interference in judicial appointments as one of the main factors affecting judicial independence. He expressed serious concerns about the phenomenon of the executive delaying approval of collegium recommendations in order to interfere with the seniority of judges. He spoke of the way in which Justice KM Joseph’s elevation to the Supreme Court was delayed in order to tinker with his seniority.

“All of us know this was interfered with. Justice Indu Malhotra was sworn in first in April. Justice Joseph’s recommendation was reiterated and made later, so the seniority got altered” he said.

Justice Muralidhar referred to how Justice Sanjay Kishan Kaul of the Supreme Court had said that the feeling one gets is that there appears to be another level of screening that is happening that is being used to delay appointments.

“Since the Supreme Court has voiced its concern, we should pay attention to this and what it is doing to the independence of the judiciary. Notwithstanding that the NJAC did not go through, if the executives still have an upper hand in the appointment of judges then it is a matter for concern” Justice Muralidhar said in this regard.

He said that such executive interference is taking place at the level of the High Courts too.

“This is happening at the High Court level also. This happened in Orissa too. We sent a set of 4 names. The first person on the list was cleared later so seniority was altered, no reason given. This tinkering with seniority is a new phenomenon. The interference in transfers is a new phenomenon, the interference with appointment of Chief Justices is a new phenomenon,” he said.

Speaking on the need to bring more transparency in the collegium system, Justice Muralidhar said “this requires a more open debate based on empirical data. Very often all of this is shrouded in mystery. Very often nothing is on paper. We need a more transparent functioning to understand how these two organs, the executive and judiciary look at the same set of names, and why they decide what they decide. Merely changing the system will not give us results”.

Justice Muralidhar ended his lecture with a quote from the 2015 judgement, Madras Bar Association V. Union of India:

“Impartiality is the soul of the judiciary, independence is the lifeblood of the judiciary. Without independence, impartiality cannot thrive. Independence is not freedom for judges to do what they like. It is the independence of judicial thought.”

“An independent judiciary can exist only when persons with competence, ability and independence with impeccable character man the judicial institutions.”

Making history in the Orissa High Court

In a unique move towards judicial transparency and accountability, the Orissa HC under his leadership institutionalized an Annual Report in 2021, in which the court had evaluated its own performance, listed challenges. “For any institution, introspection is necessary to overcome the drawbacks and to enhance efficiency,” the 2021 annual report has stated in a chapter titled ‘Introspection and Challenges’. Sabrangindia had analysed this report in depth.

This report addressed the crucial question of the digital divide over access to justice, managing the docket explosion (increasing number of cases), listing important judgments of each of its 18 judges to remembering staff who succumbed to the Covid-19 pandemic.

Justice Muralidhar, similar to Justice Akhil Kureishi (originally of the Gujarat High Court) have been victims of vicarious exclusion in appointment by the union government under the present regime. There was much comment last year, in October 2022, with the union government deliberately stalling his transfer to the Madras High Court. At the time, the the Orissa High Court Chief Justice has served a long tenure at Delhi High Court from where he was hurriedly transferred after he pulled up the Delhi Police for not doing their job during the 2020 Delhi riots.

Former Supreme Court Judge Justice Madan Lokur, who has been very vocal about recent legal developments in the country, had then stated that the union government is not entitled to selectively pick and choose from decisions made by the Collegium of the SC. That aside, if the last time the Centre sat on the Collegium’s decision on Justice Akhil Kureishi, this time it is conspicuously excluding Justice Muralidhar.

A detailed report on Justice S Muralidhar may be read here.

Background

Justice Muralidhar was appointed as judge of Delhi High Court in 2006 before which he was a practicing advocate at the Supreme Court. It was, however, his sudden transfer from Delhi High Court to Punjab and Haryana High Court in the midst of hearing of the case against BJP politicians Anurag Thakur, Parvesh Verma, Abhay Verma and Kapil Mishra, all with close associations with the ruling Bharatiya Janata Party (BJP) over hate speeches which sparked the North East Delhi riots of February 2020 that had come under strong opposition from within the Delhi Bar itself.

Midnight hearing during Delhi riots 2020

The intervening night between February 25 and 26, 2020 ambulances were prevented from entering minority neighbourhoods to help injured people in Mustafabad area of Delhi thus preventing people suffering from critical injuries, some of them bullet wounds, from getting urgent medical attention.

Around midnight, activist Rahul Roy moved Delhi High Court leading to a two-judge bench convening a special hearing late at night at the home of Justice S Muralidhar. He and Justice AJ Bhambhani heard the phone testimony of Dr Anwar of Al Hind Hospital who informed the court that 2 people were dead and 22 injured were at the hospital. The court then directed Deepak Gupta, DCP East Delhi to reach the hospital and ensure safe passage for the injured so that they may be transferred to GTB Hospital, LNJP Hospital, Maulana Azad Hospital or any other hospital where they can get the care they deserve.

Stating that “police do not have to wait for a court’s order” and “it should take action on its own”, the Delhi High Court sought the police’s stand by 12:30 pm. The bench then asked solicitor-general Tushar Mehta to advise the police commissioner on lodging of FIRs against the perpetrators. The court also asked Mehta and deputy commissioner of police (crime branch) if they have seen the video clip of BJP leader Kapil Mishra making alleged hate speech after which the video was even played in the court room.

The bench had also asked SG Mehta and Deputy Commissioner of Police (crime branch) if they had seen the videos and when the bench was informed that they didn’t come across the video of Mishra’s speech, Justice Muralidhar had said, “There are so many TVs in your office, how can a police officer say that he hasn’t watched the videos? I’m really appalled by the state of affairs of Delhi Police”, reported LiveLaw.

Justice S Muralidhar had questioned the police as to why there had been no FIRs lodged against leaders of the ruling party for their inflammatory speeches. He had said, “You showed alacrity in lodging FIRs for arson, why aren’t you showing the same for registering FIR for these speeches?” He had asked Delhi Police to take a “conscious decision” to register an FIR in 24 hours and expressed “anguish” that the city is burning and questioned the Delhi Police on the delay and its lack of acknowledgement of the speeches themselves as crimes.

Within days, if not hours of this historic midnight hearing, Justice Muralidhar was hurriedly transferred to Punjab and Haryana High Court.

Now, after a 17 year career in India’s constitutional courts, Justice (Dr) S Murlidhar, after retirement has become a clear advocate of judicial independence and autonomy.

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The decision of the Supreme Court Collegium to transfer Orissa High Court Chief Justice, S Muralidhar to the Madras High Court has been kept pending by the Centre bringing, the move under heavy criticism.

Former Supreme Court Judge Justice Madan Lokur, who has been very vocal about recent legal developments in the country, has today stated that the Centre is not entitled to selectively pick and choose from decisions made by the Collegium of the SC. That aside, if the last time the Centre sat on the Collegium’s decision on Justice Akhil Kureishi[1] this time it is conspicuously excluding Justice Muralidhar. Why? Justice Muralidhar’s tenure has been remarkable, marked both by compassionate jurisprudence and a desire to make efficient the access to justice and overall judicial accountability. Again, then as now, the Centre, flexing its muscles over the judiciary, refusing to yield to the Collegium’s recommendation.

In June 2022, as Chief Justice of the Orissa High Court, Justice Muralidhar oversaw a unique experiment in judicial accountability. The Orissa High Court published a 312-page annual report evaluating its own performance, for the year 2021. This report addressed the crucial question of the digital divide over access to justice, managing the docket explosion (increasing number of cases), listing important judgments of each of its 18 judges to remembering staff who succumbed to the Covid-19 pandemic. Under the stewardship and vision of Chief Justice S Muralidhar who took office on January 4, 2021, the report is a pioneering document that showcases a practice that every court in the country needs to evaluate: it outlines the performance of the High Court and the district-level judiciary in the state.

“For any institution, introspection is necessary to overcome the drawbacks and to enhance efficiency,” the report stated in a chapter titled ‘Introspection and Challenges’. A detailed report on this initiative may be read here.

Apart from this report, his leadership in the Orissa High Court is recognised to have improved and launched e-services at Orissa High Court as its Chief Justice such as the launching of a mobile app, online payment system of court fees in the lower courts, live streaming of  cases on trial basis, e-filing portal for cases, video conference cabins in district courts as well as e-sewa  Kendras in  Taluka courts.

Justice Muralidhar was appointed as judge of Delhi High Court in 2006 before which he was a practicing advocate at the Supreme Court.

February 2020, Delhi Riots Cases: Hate Speech

But it was his sudden transfer from Delhi High Court to Punjab and Haryana High Court in the midst of hearing of the case against BJP politicians Anurag Thakur, Parvesh Verma, Abhay Verma and Kapil Mishra over hate speeches which sparked the North East Delhi riots of February 2020 that had come under strong opposition from within the Delhi Bar itself. This was in 2020.

Midnight hearing during Delhi riots 2020

The intervening night between February 25 and 26, 2020 ambulances were prevented from entering minority neighbourhoods to help injured people in Mustafabad area of Delhi thus preventing people suffering from critical injuries, some of them bullet wounds, from getting urgent medical attention.

Around midnight, activist Rahul Roy moved Delhi High Court leading to a two-judge bench convening a special hearing late at night at the home of Justice S Muralidhar. He and Justice AJ Bhambhani heard the phone testimony of Dr Anwar of Al Hind Hospital who informed the court that 2 people were dead and 22 injured were at the hospital. The court then directed Deepak Gupta, DCP East Delhi to reach the hospital and ensure safe passage for the injured so that they may be transferred to GTB Hospital, LNJP Hospital, Maulana Azad Hospital or any other hospital where they can get the care they deserve. 

Pulling up Delhi Police during 2020 riots

While the  bench headed by Chief Justice D N Patel was on leave, plea seeking judicial enquiry and registration of FIR against three BJP leaders Anurag Thakur, Parvesh Sahib Singh, and Kapil Mishra and others for making provocative statements leading to multiple riots was mentioned for urgent hearing before the bench headed by Justice Muralidhar.

Stating that “police do not have to wait for a court’s order” and “it should take action on its own”, the Delhi High Court sought the police’s stand by 12:30 pm. The bench then asked solicitor-general Tushar Mehta to advice the police commissioner on lodging of FIRs against the perpetrators. The court also asked Mehta and deputy commissioner of police (crime branch) if they have seen the video clip of BJP leader Kapil Mishra making alleged hate speech after which the video was even played in the court room.

The bench had also asked SG Mehta and Deputy Commissioner of Police (crime branch) if they had seen the videos and when the bench was informed that they didn’t come across the video of Mishra’s speech, Justice Muralidhar had said, “There are so many TVs in your office, how can a police officer say that he hasn’t watched the videos? I’m really appalled by the state of affairs of Delhi Police”, reported LiveLaw.

Justice S Muralidhar had questioned the police as to why there had been no FIRs lodged against leaders of the ruling party for their inflammatory speeches. He had said, “You showed alacrity in lodging FIRs for arson, why aren’t you showing the same for registering FIR for these speeches?” He had asked Delhi Police to take a “conscious decision” to register an FIR in 24 hours and expressed “anguish” that the city is burning and questioned the Delhi Police on the delay and its lack of acknowledgment of the speeches themselves as crimes.

After this hearing, Justice Muralidhar was hurriedly transferred to Punjab and Haryana High Court.

Here’s a look at several other such important decisions and orders of Justice Muralidhar which are revelatory and could have a bearing on the recent conduct of the Central government that has come in for strong criticism.

Gautam Navlakha transit remand

In 2018 when Pune Police obtained Navlakha’s transit remand from Chief Metropolitan magistrate Court in Delhi, a bench comprising Justice Muralidhar pulled up the court for the same stating that there was “non application of mind” and that the court did not even bother to understand the offence against him; since the document of grounds of arrest produced before the court was in Marathi language.

Sajjan Kumar conviction-1984 riots case

In 2018, the bench of Justices S Muralidhar and Vinod Goel of Delhi High Court convicted Congress leader and former MP Sajjan Kumar for playing a role in the murder of five family members residing in Raj Nagar in Delhi and sentenced him to life imprisonment overturning his acquittal by a lower court.

Hashimpura targeted killings of 1987

In November 2018, Justices Muralidhar and Goel convicted 16 PAC personnel holding it a case of targeted custodial killing, 31 years after they shot down in cold blood more than 40 males of the Muslim minority. On May 21, 2015 a trial court had, while not disputing that the killings had taken place, had acquitted the accused for lack of evidence. The court had held that “the compensation paid and conviction after 31 years is still a miscarriage of justice for the victims. There is clear evidence of prior meeting of minds.”

Decriminalizing homosexuality

In 2009 in the Naz Foundation case, Justice Muralidhar was junior member of the bench headed by then Chief Justice AP Shah, which legalised homosexual acts among consenting adults. “We declare section 377 of Indian Penal Code in so far as it criminalises consensual sexual acts of adults in private is violative of Articles 21, 14, and 15 of the Constitution,” the bench had declared.

Kathua rape convict parole denied

IN November 2020, the division bench of Justice S. Muralidhar and Justice Avneesh Jhingan of  Punjab and Haryana High Court rejected parole to Sanji Ram, convicted in the Kathua rape and murder case stating, “Given the genuine apprehension expressed as regards the possible law and order consequences if the petitioner’s prayer for parole is granted, the Court is not inclined to accept such prayer at this stage.”

Sanji Ram had prayed for parole for a period of 8 weeks in order to attend his son’s marriage.

Compensation for negligent custodial death

IN February 2021, Orissa High Court bench headed by Chief Justice S Muralidhar and comprising Justice Biswajit Mohanty  directed the state government to pay compensation of Rs. 5 lakhs to the parents of a man who died while in police custody, 15 years ago while holding that the police failed to immediately rush the deceased for medical treatment and that amounted to criminal negligence under constitutional tort.

Direction for prison visits

In March 2021, Bench of Chief Justice S. Muralidhar and Justice B. P. Routray while hearing two petitions highlighting the various issues concerning the jails, noted the absence of jail visits by the District Magistrates and the medical teams and directed District Magistrates of various districts to make surprise visits to jails within their jurisdiction. The bench also submitted a joint report to the court “on the conditions of the jails, condition of the prisoners, issues of overcrowding, the status of facilities within the jails including provisions for food and shelter, recreation etc.” The Bench emphasised that these visits should be “unannounced.”

Compensation to manual scavengers’ family

In April 2021, in a suo moto case, Bench comprising Chief Justice Dr. S Muralidhar and Justice BP Routray took cognizance of deaths of two young men in Cuttack where they entered the sewer line, which was over 15 feet deep and died due to asphyxiation. The court then directed Rs. 10 lakh compensation to manual scavengers’ family and asked the state to file an affidavit before the next date of hearing, listing out the steps it has taken thus far to implement, in letter and spirit, the various provisions of the Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013.

As a follow through, the bench, in June 2021 sought proof of payment of compensation to those families as well.

COVID vaccine for prisoners

Justice Muralidhar ensured, as Chief Justice of Orissa High Court, that no prisoner in the state is denied COVID vaccination for not registering on COWIN portal and directed the State to make alternate arrangements to ensure that prisoners are vaccinated. This direction came after the bench was informed that with respect to vaccination in jails, many prison inmates may not have identity documents for registration on the COWIN portal.e

Disappearance of JNU student Najeeb

Najeeb (27), a student of M.Sc Biotechnology, had gone missing from the Mahi-Mandvi Hostel of the Jawaharlal Nehru University (JNU) on October 15, 2016, following an alleged scuffle with students associated with the Akhil Bharatiya Vidyarthi Parishad (ABVP). The case was transferred to the CBI in 2017 and there were some demonstration outside the CBI headquarters alleging that the agency was not doing enough to trace Najeeb. When the CBI raised this issue before the bench comprising Justices S Muralidhar and IS Mehta, the bench said this was a “democratic expression of the anxiety of the people” since the case had dragged on for so long. The bench had also pulled up the CBI  for its “complete lack of interest” and not showing any result in its probe into the disappearance of Najeeb, five months after being handed over the investigation.

Justice Muralidhar’s hasty transfer from Delhi High Court in 2020 saw many members of the Bar celebrating his tenure. Additional Solicitor General Maninder Acharya had said, “I have seen common people blessing you while leaving your court”. While this decision to transfer him (clearly showing the influence of the executive) did not go down well with the Delhi Bar and was condemned quite vocally, he nevertheless received an overwhelming farewell from members of the Bar who called him a beacon of hope.

In his public addresses as well, Justice Muralidhar has spoken for the marginalised. Speaking at the Ambedkar Jayanti lecture organised by Community for the Eradication of Discrimination in Education and Employment and telecast on LiveLaw on April 14, he said laws are structured to discriminate against the poor and that the system works unequally for the poor and the rich. Structured discrimination has ensured 21 % of undertrial population is SC, 17.4 % Muslim and 34.3 % are OBCs, he had pointed out.

Related:

Structured discrimination has ensured 21 % of undertrial population is SC, 17.4 % Muslim and 34.3 % are OBCs; Justice Muralidhar
Centre must not segregate collegium resolutions, Supreme Court should be firm against the executive for sitting over proposals: Justice MB Lokur
Delhi violence calculated attempt to disrupt normal life: HC

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Speaking at the Ambedkar Jayanti lecture organised by Community for the Eradication of Discrimination in Education and Employment and telecast on LiveLaw on April 14, Orissa High Court Chief Justice S Muralidhar on Thursday said laws are structured to discriminate against the poor and that the system works unequally for the poor and the rich. “There are many barriers to accessing justice that a marginalised person faces,” Muralidhar said. “The system works differently for the poor. The laws and processes are mystifying even for an educated literate person. The laws are themselves structured to discriminate against the poor,” Chief Justice Muralidhar said. “Muslims and people from the Scheduled Caste and OBC communities formed the majority of those facing trials and convicted in the country,” he pointed out. 

The Video may be viewed here

He made the remarks while delivering a lecture on the topic “Appearing In court: Challenges In Representing The Marginalized”, to mark the 131st anniversary of BR Ambedkar. In his lecture, Justice Muralidhar pointed out that 55% of the 3.72 lakh people in India who are awaiting trial, belong to the Scheduled Caste and Other Backward Classes, Live Law reported. 

Of the 1.13 lakh convicts, 21% belong to the Scheduled Caste and 37.1% to the Other Backward Class category, Muralidhar said. More than 17% of those under trial and 19.5% of the convicts are Muslims, the Odisha High Court chief justice said.“ Yet these are the persons who are likely to find it difficult to come forward to fight for their rights,” he said.

He added that many people who are under trial continue to remain in jail despite being granted bail because of their inability to arrange surety bonds. Justice Muralidhar also expressed concern on the quality of legal aid in the country for those unable to afford legal representation.

“The lack of confidence in the legal aid lawyer is a reflection of the general approach to welfare services by the providers,” he further said. “I call it the ration shop syndrome. The poor believe that if you get any service for free or it is substantially subsidised, then you cannot demand quality.”

“The system works differently for the poor. The beggars’ courts, the Juvenile Justice Boards and the Mahila Magistrate courts are the first point of encounter for the poor with the legal system,” he said

The chief justice also cited a study that found that human rights lawyers belonging to Dalit and Adivasi were labelled as “Maoist or Naxalite lawyers”. “Their experience tells them that it [the legal system] operates to oppress them and they have to devise ways to avoid it rather than engage with it,” Muralidhar said. “We need to revive discussions around decriminalising many of the surviving activities of the poor.”

Emphasising that Constitution acknowledges persons who by birth, descent, caste and class have been denied justice over generations, he said it also envisages the State to come up with affirmative actions to redress such historic injustices. “These include those belonging to the SC, ST, Dalits, Adivasis, socially and educationally disadvantaged classes, economically deprived classes and a whole host of others, including religious and sexual minorities, differently abled and children in conflict with the law,” he said. “Then there are status offenders – sex workers, mentally ill and many others whose very existence and every activity is criminalised and, therefore, very often find themselves on the wrong side of the law. Thus, begging, street dwelling, and prostitution are all treated as law and order problems.”

“It is a matter of concern that in at least 20 states in India, there are still anti-beggary laws. Only in Delhi and J&K have these laws been struck down by judicial verdicts. Then there are de-notified tribes who have for long been the victim of police atrocities. Those coming in conflict with the law in these situations are invariably those below the poverty line and high-risk groups for whom legal aid is an absolute necessity.”

Stating that structures that marginalise a sizeable section of the population are yet to be dismantled, Chief Justice Muralidhar asserted that this is why we still have amongst us those engaged in manual scavenging, sewer cleaning or forced labour doing all our dirty work “at the cost of their dignity and right to life”.

Talking about how to meet the challenges, the Chief Justice said that the marginalised largely view the legal system as irrelevant and as a tool of empowerment and survival. “Their experience tells them that it operates to oppress them and they have to devise ways to avoid it rather than engage with it. We need to revive discussions around decriminalising many of the surviving activities of the poor,” he said.

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