Judges Do Make Political Choices; Politics & Judicial Functioning Not As Separate As We Want: Justice (Retd) S Muralidhar

“Many issues coming to court are political issues dressed as legal issues. Judges do make political choices. They may think they are being neutral. Politics and judicial functioning are not as separate as we want them to be. They are getting increasingly mixed up. What we wear, what we eat, what we speak - they are all becoming constitutional issues now and judges are being forced to make a choice, and make that choice in public.”

Justice Muralidhar made these remarks on Thursday during a panel discussion held to mark the launch of Gautam Bhatia’s latest book, ‘Unsealed Covers: A Decade of the Constitution, the Courts, and the State’. The panel also included the author, renowned criminal lawyer Rebecca John, and senior journalist Seema Chisti.

Speaking at the event, Justice Muralidhar commended Bhatia’s authorial work for providing an insider’s view of the courtroom and praised his candour in chronicling the past decade of the judiciary. He highlighted how Bhatia’s book offered valuable insights into the evolving judicial landscape and the institution’s adaptability over time. The former judge also noted that in the journey, unlike legal correspondents who often had to be cautious in their reporting due to court accreditation and editorial policies, Bhatia enjoyed the freedom to express his views openly –

“Through the book, Gautam gives an insider’s perspective or a ring-side view. This book is very useful in terms of the chronology of events and to witness how an institution shaped and reshaped itself with changing times. Gautam’s refreshing candour is missing in print media. Legal correspondents who covered court had to be very restrained, and very careful about the language used, because they rely on a system of accreditation from the court, besides being bound by their own editorial policy. But Gautam is free of that and has the freedom that a legal correspondent, even electronic media, may not have. He makes full use of this freedom and one has to admire the courage with which he has written this book. This is the kind of candour we need.”

In this connection, Justice Muralidhar acknowledged the challenges faced by legal correspondents, including stories getting shelved at the editorial stage. He also noted how selective information leaks to certain newspapers could lead to biased reporting. Bhatia’s book, in contrast, presented a refreshing perspective on courtroom proceedings –

“Many legal correspondents have lamented about how many stories were killed at the editorial desk. It will be interesting, after reading Gautam’s book, if someone brings out a volume of killed stories. That will tell us how much was kept back. Also interesting is how newspaper scoops are a result of the selective leaking of information to a particular newspaper. But, this distorts the way journalists are supposed to function and the bias creeps into their writing. You will find journalists fiercely defending the court with their pieces, and then you begin wondering about the news channel or newspaper’s objectivity. Gautam gives you that refreshingly different perspective of what’s happening in the court.”

Another achievement of the book, Justice Muralidhar said, was the identification of the ‘definitive positions’ of judges, who have to increasingly make political choices while addressing legal and constitutional issues. Justice Muralidhar said that unsealed Covers shed light on the intersection of politics and judicial decisions, making it clear where judges stood on various issues.

“Where do judges come from? Gautam’s writing tells you that they do come from definitive positions. This book tells you that there are many political issues coming to courts dressed as legal issues. The Hijab case, for instance. Today(Sep 14), we had two news items. One about the choice of food in Lakshadweep and another about flying of flags in atemple in Kerala. Judges do make political choices. They may think they are being neutral. Politics and judicial functioning are not as separate as we want them to be. They are getting increasingly mixed up. What we wear, what we eat, what we speak - they are all becoming legal and constitutional issues now and judges are being forced to make a choice, and make that choice in public. Where the judge stands comes through very clearly in your book.”

Justice Muralidhar concluded his remarks by acknowledging Bhatia’s unique perspective and the freedom he enjoyed while writing his blog and his book, emphasising the importance of publications like this that aim to reveal the ‘truth about the law’ –

“I think Gautam does get away with a lot. Many legal correspondents would be very envious of what he does in this book, which he did in his blog. He also ends on a note that makes us reflect on why it’s necessary to have these kinds of books published, which is to say the truth about the law. And telling the truth about the law, according to him, may require a slightly different framework of analysis. A frame that is more critical, which centres the Supreme Court less, and which focuses more on the Constitution as a site of democracy and power relations, as opposed to something the Supreme Court purports to interpret from time to time. He writes, it is of course an evolving idea and what it will look like is something we will find out as we go along. But this is a task that must be begun urgently. Congratulations, Gautam! This is a wonderful contribution to all of us.”

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.

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

The video of the event can be watched here.