After a 17-year long tenure as a high court judge, Justice (Dr) S Muralidhar has been visible with several public appearances in different parts of the country, especially south India. The former Chief Justice of Orissa High Court Dr. Justice S Muralidhar, while delivering a lecture on the ‘Independence of the Judiciary’ at the Kerala High Court Auditorium yesterday, October 12, stressed on the importance of the judiciary being a counter-majority organ of the State. He said that in a country like India, whenever there has been a strong executive, there has been a visibly weak judiciary.
“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.
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.