By Not Standing Up For Justice S Muralidhar, Supreme Court Collegium Fails Yet Another Independent Judge

In the last week of February 2020, when parts of North Eastern regions of Delhi were gripped with communal riots, several injured victims were trapped in a relatively small hospital in Mustafabad. They needed emergency critical care and had to be immediately taken to a bigger hospital with facilities. However, due to the raging riots, ambulances were not in a position to reach there. Police assistance was not immediately forthcoming.

In this backdrop, an emergency midnight sitting was convened at the residence of Dr Justice S Muralidhar, who was then a judge of the Delhi High Court. The bench of Justice Muralidhar and Justice Anup J Bhambhani interacted through mobile phone with the doctor at Al Hind Hospital at Mustafabad, who explained the dire situation. The bench passed immediate directions to the police to ensure the evacuation of 22 severely injured victims to hospitals with adequate facilities and to ensure emergency medical care for them.

On the same day(February 26, 2020), during regular court hours, there was a dramatic hearing before Justice Muralidhar’s bench, in a petition seeking FIR against certain BJP leaders who allegedly made provocative statements ahead of riots. When a police officer who was present in the Court claimed ignorance about the speeches, Justice Muralidhar directed for the video clips of BJP leader Kapil Mishra’s speech, which was uttered in the presence of a police officer, to be played in the court. When the Solicitor General said that the decision on FIR will be taken at “the appropriate time”, Justice Muralidhar asked, “When is the appropriate time? The city is burning. When you have multiple clips of inflammatory speeches, what are you waiting for?”. The bench passed a stern order to the Delhi Commissioner of Police to decide on registering FIR over the speeches within 24 hours.

Within eight hours of passing the order, the Central Government notified the transfer of Justice Muralidhar from Delhi HC to the Punjab and Haryana High Court. The sudden action on a two-week-old collegium proposal for Justice Muralidhar’s transfer was widely perceived as a reaction to his strong stance against the Delhi Police in the riots case, even though the Union Law Ministry maintained that the government was following only the routine procedure. The riots case went into limbo with the subsequent bench taking a lethargic approach.

Justice Muralidhar received a warm farewell from the Delhi High Court, with an unprecedented number of lawyers attending, leaving the floors and the ramps of the building jam-packed. Several advocates say that the High Court never witnessed such a resounding farewell for a judge ever before or after.

Even before the orders of February 26, which Justice Muralidhar described in his farewell speech as his “longest working day”, he had earned a reputation as an erudite and independent judge through many of his landmark judgments. Justice Muralidhar was part of the division bench which struck down Section 377 IPC way back in 2009. In his judgment convicting Congress leader Sajjan Kumar and others for the 1984 anti-Sikh riots, he spoke about the need for legislative changes to address "crimes against humanity" and "mass killings" which are carried out by persons enjoying political patronage.  In the Hashimpura massacre case, where 16 police men were sentenced to life for the targeted killings of around 38 Muslim men, Justice Muralidhar wrote about the "institutional bias within the law enforcement agents" against the minority community and expressed shock at the members of the uniformed forces gratuitously killing defenceless people.  In the Uttarakhand fake encounter case, his judgment strongly denounced 'encounter justice' and called for stern action against trigger-happy police officers who kill the very same citizens who they are bound to protect. In the judgment recognising the rights of slum dwellers, Justice Muralidhar underscored their right to dignity : "Many of them(slum dwellers) travel long distances to reach the city to provide services, and many continue to live in deplorable conditions, suffering indignities just to make sure that the rest of the population is able to live a comfortable life. Prioritising the housing needs of such population should be imperative for a state committed to social welfare and to its obligations flowing from the ICESCR and the Indian Constitution".

His judgment quashing the transit warrant issued against Gautam Navlakha in the Bhima Koregaon case- a fine example of the application of first principles of criminal law to protect basic rights - shows that he is not someone to be swayed by grand police narratives.

A judge, who is erudite and independent, who doesn’t hesitate to act urgently to protect the lives of ordinary citizens in moments of danger and is fearless in taking a bold stand against State excesses and inactions, who is held in high esteem by the legal fraternity, certainly deserves to be in the Supreme Court, right?.

Justice Muralidhar’s work as the Chief Justice of Orissa High Court was praised on several occasions by Supreme Court judges. Chief Justice of India DY Chandrachud, in open court and also in many previous public events, lauded the efforts taken by Chief Justice Muralidhar for the technological transformation of Orissa HC. "Chief Justice Muralidhar in Odisha has set up video conferencing facilities for every district in the state. He has decentralized the system and now there are benches in each district of the state. So any district lawyer can appear through video conferencing in the High Court by the facilities”, CJI Chandrachud said in the open court while hearing a petition related to virtual courts. In an order passed in March this year, a bench led by CJI put on record the appreciation for the Orissa HC in ensuring virtual connectivity in all districts and suggested that other High Courts should follow its model.

So Justice Muralidhar, apart from his judicial capabilities, has also displayed effective administrative skills, making him a worthier candidate for elevation to the Supreme Court. Yet, he was not.

Even as Justice Muralidhar was widely loved and respected within the legal fraternity and civil society, his independent and bold approaches earned him the ire of certain right-wing sections, who launched multiple malicious vilification campaign against him based on outright misinformation. There are grounds to believe that the Union Government is not much in favor of him. The Centre selectively kept pending the collegium proposal made in September 2022 to transfer Justice Muralidhar as the Madras HC CJ, though other proposals were acted upon. Because of the lack of response from the Centre, the Supreme Court collegium was forced to recall the proposal regarding Justice Muralidhar's transfer to Madras HC.

Having been appointed as a High Court judge in May 2006 and elevated as a Chief Justice in January 2021, Justice Muralidhar is one of the top senior High Court judges in the country. He is the second senior High Court Chief Justice at present. During this period, the Supreme Court collegium has recommended the elevation of several judges out of their turn, citing several factors like regional representation, gender balance, social diversity etc. However, the refusal of the Supreme Court collegium to consider Justice Muralidhar for elevation to any of the vacancies (even now two more vacancies are existing in the Supreme Court) is mysterious. Some might explain that Justice Muralidhar’s parent High Court, Delhi High Court, already has four judges in the Supreme Court. This is too feeble an explanation for the exclusion of a meritorious judge who has shown exceptional courage and independence(it is a different matter that two of the judges hailing from Delhi HC are due to retire from SC this year). He retired as the Chief Justice of Orissa High Court on August 7, 2023.

So why is Justice Muralidhar excluded? Given the secretive ways of the Supreme Court collegium, we will never get a clear answer. From the available facts and background circumstances, one is forced to make an inference that the Collegium did not want to make a proposal which will be to the dislike of the Union Government. The fact that the Supreme Court collegium did not assert itself when the Centre was sitting over the proposal regarding Justice Muralidhar’s transfer to Madras HC and ultimately caved in to recall the proposal reflects poorly on its independence. It appears that Justice Muralidhar also met the fate of Justice Akil Kureshi, another independent and conscientious judge, who was also let down by the Supreme Court due to the “negative perception” of the Centre. The Centre’s “negative perception”, in a real world sense, translates to mean that the judge was unyielding to executive pressures.

The Collegium system, despite all its flaws, drew support from various sections because it is seen as a bulwark against authoritarian moves to destroy judicial independence. But if the Collegium is singing the same song as the Executive, then what is its relevance?.

(Manu Sebastian is the Managing Editor of LiveLaw. He tweets @manuvichar. He may be reached at manu@livelaw.in)