SC Violates It's Own Resolution In Transfer Of Justice Muralidhar

Justice Muralidhar questioned inaction against hate speech of ruling party leaders. There was neither action in the police or the party or the government. Home Ministry did not respond. The Ministry of Law and Justice responded, by transferring him with jet-speed. Legal fraternity was shocked when by midnight notification Government of India transferred Justice Muralidhar of Delhi High Court, within hours after he pulled up Delhi Police for its silence on hate speech of four BJP leaders, which are cognizable offences and police refused to take cognizance of. Earlier attempts to transfer him was stalled because of opposition in Collegium and the bar. On February 12 the Collegium recommended the judge's transfer. After the decision, the Government can any time notify the transfer, as there is no prescribed time frame. There are instances files of recommendation took months, and rarely some judges are transferred with lightening speed. Usually judge gets 15 days-time to hand over charge and take over at new court. The Chief Justice must decide the relieving date. Justice Muralidhar was removed from the Bench of Delhi High Court which was hearing the PIL against inaction of Delhi Police against hate speech which directly resulted in killing of many people in national capital.

Senior Advocate and Supreme Court Bar Association President Dushyant Dave said "the unceremonious removal as transfer was 'malafide' and 'punitive' in midnight hours in the midst of a hearing of extremely sensitive cases involving rule of law and hate crimes of ruling party leaders resulting in deaths of innocent citizen due to failure of law-enforcing machinery is not just deeply disturbing but clearly mala fide. The Government has achieved its objective of shying away from enquiry as proceedings before a new bench today has shown".

While perusing the video clips of alleged hate speeches being made by four BJP leaders – MoS Finance Anurag Thakur, Kapil Mishra, Parvesh Verma and Abhay Verma, Justice Muralidhar asked:

"Just register FIRs. You showed alacrity in lodging FIRs for arson, why aren't you showing the same for registering FIR for these speeches?" When Solicitor General Tushar Mehta said the "time wasn't conducive" to file FIRs, Muralidhar retorted, "What is the appropriate time, Mr Mehta? The city is burning."

It is clear why Justice Muralidhar is transferred. But why it was recommended by the Collegium? Did they give any reasons?

Transparency order

The Supreme Court announced on October 3, 2017 that its collegium decisions and resolutions about appointments and transfers of judges would be published on its official website in pursuance of transparency policy. As Central Information Commissioner, I felt that was great step to reforming the judicial administration. The then Chief Justice Deepak Misra was appreciated for such progressive step. There is a tab on the Supreme Court website, click on which takes the viewers to 'collegium resolution'. It begins with Sanskrit saying "yatho dharmasthato jayah" [where there is Dharma (righteous conduct) there the success]

"THAT the decisions henceforth taken by the Collegium indicating the reasons shall be put on the website of the Supreme Court, when the recommendation(s) is/are sent to the Government of India, with regard to the cases relating to initial elevation to the High Court Bench, confirmation as permanent Judge(s) of the High Court, elevation to the post of Chief Justice of High Court, transfer of High Court Chief Justices / Judges and elevation to the Supreme Court, because on each occasion the material which is considered by the Collegium is different.

The Resolution is passed to ensure transparency and yet maintain confidentiality in the Collegium system."

In Raj Kishore Jha v. State of Bihar, the Supreme Court opined, "Reason is the heartbeat of every conclusion. Without the same, it becomes lifeless." The apex court itself resolved to give reasons. But it did not adhere to its own resolve. The Supreme Court Collegium has to give reasons as to: a) Why Justice Muralidhar was recommended to be transferred? B) Why earlier the proposal was rejected and why it was taken up again? C) Why Collegium violated its own resolution to give reasons for every collegium decision? D) Why the SC did not prevent unceremonious removal of Justice Muralidhar from an ongoing hearing of a very important PIL about inaction of Delhi Police when people are being killed in holocaust caused by hate speech?

With his most progressive and rule-of-law-based judgments, Justice Muralidhar attracted the ire of establishment. Several of his judgments from Delhi High Court are land-marks and sensational. He along with Justice AP Shah had first decriminalised homosexuality in 2009, and said Section 377 violated Fundamental Rights. This is the law today, after much debate and two judgments, the Supreme Court has to agree to Muralidhar's law and logic. That progressive order said, "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." He further noted: "As it stands, Section 377 denies a gay person a right to full personhood which is implicit in the notion of life under Article 21 of the Constitution."

Some anti-Congress and pro-BJP critiques who blame him as an appointee in congress regime, should take a note that he did not hesitate to overturn the lower court's order of acquittal and convict Sajjan Kumar in 2018, to life imprisonment for his treacherous role in 1984 anti-Sikh riots. The Bench included Justice Muralidhar and Justice Vinod Goel, observed that the trial court had evaluated evidence on "erroneous considerations" and that the police blatantly abetted the crimes committed by the rioting mobs. He noted that there was "a familiar pattern of mass killings in Mumbai in 1993, in Gujarat in 2002, in Kandhamal, Odisha, in 2008, in Muzaffarnagar in UP in 2013" where minorities were being targeted and the attacks were being "spearheaded by the dominant political actors being facilitated by the law enforcement agencies". It also said, "the criminals responsible for the mass crimes have enjoyed political patronage and managed to evade prosecution and punishment." This is highly relevant to today's politics too.

In the same year 2018, the same bench sentenced 16 ex-police personnel to life for killing 42 Muslims in Hashimpura massacre of 1987, saying "We hold that this was targeted killing by armed forces of the unarmed, innocent and defenceless members of a particular community." Justice Muralidhar has also set aside the remand of activist Gautam Navlakha for his alleged role in stoking violence in Bhima Koregaon.

The Full Bench with Justice Muralidhar has in 2010 that ruled in favour of Subhash Chandra Agrawal, who sought in an RTI, information from the Supreme Court registry on how many judges had declared their assets.

His record as an advocate is also studded with socially relevant litigation like helping victims of Bhopal Gas Tragedy and for those who were displaced during the construction of the dam on the Narmada river.

The Campaign for Judicial Accountability and Reforms (CJAR) and several senior lawyers, who have issued a statement condemning the transfer" "The fact that the notification of the transfer was issued on the evening he had done his duty to hold Delhi Police and the Union Government accountable for the loss of lives in the Delhi riots tell us the true nature of his transfer," the statement read.

Raising suspicion over the timing of 11 pm for transferring, advocate Kamini Jaiswal said, "This raises a lot of questions. The government cannot hide behind the recommendation of the Collegium. There is no reason why he should have been shifted at this juncture, except if he was being shifted as the Chief Justice of another High Court."

When the SC held in November 2019 that the apex court would be under the lens of RTI, it was considered a watershed movement in judicial administration. Financial Express opined: Coming under the RTI lens will push what has been a notoriously opaque system to share insights into its functioning. That said, the conditions that the judgment sets lend themselves to the apex court stonewalling efforts to dig out particulars that may be of public interest.

Justice K K Mathew, Judge, Supreme Court of India, (1975) said: "The people of this country have a right to know every public act, everything, that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing". Supreme Court should also be reminded of what Justice PN Bhagwati, the then CJI has said in 1981: ""Where a society has chosen to accept democracy as its credal faith, it is elementary that the citizens ought to know what their government is doing"

"Information is the currency that every citizen requires to participate in the life and governance of society" said Justice A. P. Shah, former Chief Justice, Delhi and Madras High Courts, (2010)

Shameful

The midnight between 26^th and 27^th February is significant and shameful. Targeted blood spilling riots continued in some parts of the national capital city. The reluctance of police to act also continued, as FIRs were not registered against the hooligans unleashed by communal forces. Thousands of calls to phone number 100 went unanswered.

Two judges Bench headed by Justice Muralidhar was hearing the writ petition seeking directions to Delhi police to register FIRs regarding the violent riots and the government to provide safe passage to injured victims to hospitals. And within few hours, Rashtrapathi Bhawan was churning out the order transferring the Judge to Panjab and Haryana High Court.

The Government did not bother about the protests of Delhi Bar Association. None knows the reasons for his transfer. This midnight transfer and secrecy over reasons remind us the absolute necessity of transparency in transfers and appointment of judges.

It is Constitutional requirement that the Judiciary must prove that it is independent of Executive influence in adjudicating matters on rule of law.

Views Are Personal Only.

(M Sridhar Acharyulu, Former Central Information Commissioner and Dean of Law, Bennett University.)

(Substantive part of it appeared first in thefederal.in yesterday)