When There Is An Oppressive State, The Hope Is In The Judiciary: Justice Dr. S Muralidhar

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 on Thursday, highlighted 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.

Justice Muralidhar also highlighted that the essential facet of judicial functioning is impartiality and fearlessness. He said that the constitution itself must seen as a statue on limiting of state power. “To check the excesses of the state you need an independent and impartial judiciary”, he said.

Justice Muralidhar also said that the 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. 

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 be another level of screening that is happening that is being used to delay appointments.

“Since the Supreme Court has voiced it’s 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 has 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 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 in 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 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."

Click here for live updates of the lecture.

Click here to watch the event live.