Govt can't hide behind collegium over Judge Muralidhar’s transfer

The legal fraternity was shocked when, by a midnight notification, the Government of India transferred Justice Muralidhar of the Delhi High Court within hours of him pulling up the Delhi Police for its silence on hate speech by four BJP leaders.

Earlier attempts to transfer him was stalled because of opposition in the collegium and the bar. On February 12, the collegium recommended the judge’s transfer.

As per the process, the government can notify the transfer anytime after the collegium’s decision. There is no prescribed time frame. There are cases where the files have taken months and in rare cases, some judges are transferred with lightning speed.

Usually, a judge gets a 15-day period to hand over charge and assume office in a new court. The Chief Justice must decide the relieving date. Justice Muralidhar was removed from the bench of the Delhi High Court which was hearing the PIL against the inaction of Delhi Police against hate speech which directly resulted in the killing of many people in the national capital.

Senior advocate and Supreme Court Bar Association president Dushyant Dave said, “The unceremonious removal as the transfer was ‘malafide’ and ‘punitive’ in the midnight hours in the midst of a hearing of extremely sensitive cases involving rule of law and hate crimes.”

Related news: Govt should have been careful transferring Justice Muralidhar: Former CJI

While pursuing the video clips of alleged hate speeches 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, Justice Muralidhar retorted, “What is the appropriate time, Mr Mehta? The city is burning.”

It is clear why Justice Muralidhar was transferred. But why was it 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 on 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 steps. There is a tab on the Supreme Court website, a click on which takes the viewers to ‘collegium resolution.’ It begins with Sanskrit saying “yatho dharmasthato jayah” [where there is Dharma (righteous conduct) there is success].

A resolution passed by the five senior-most judges of the court states:

“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”

“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 vs the 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 the proposal was rejected earlier and why it was taken up again? C) Why the 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 the inaction of Delhi Police when people are being killed in holocaust caused by hate speech?

Related news: Row over timing of transfer of HC judge Muralidhar; Centre calls it ‘routine’

With his most progressive and rule-of-law-based judgments, Justice Muralidhar attracted the ire of establishment.

Several of his judgments from the Delhi High Court are landmark ones. He, along with Justice A.P. Shah, had first decriminalised homosexuality in 2009 and said Section 377 violated Fundamental Rights. After much debate and two judgments, the Supreme Court agreed 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 of the Congress regime should take 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, comprising Justice Muralidhar and Justice Vinod Goel, said 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.’

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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 in 2010 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 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,” a statement issued by the Campaign for Judicial Accountability and Reforms (CJAR) and several senior lawyers said.

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 the RTI, it was considered a watershed movement in judicial administration. The Financial Express said: “Coming under the RTI lens will push what has been a notoriously opaque system to share insights into its functioning.”

Related news: Delhi HC Judge hearing violence case shifted to Punjab and Haryana HC

Justice K.K. Mathew, former 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 P.N. Bhagwati, the then CJI, 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.”

Shameful

The intervening night of February 26-27 is significant and shameful. Targeted, blood-spilling riots continued in some parts of the national capital. The reluctance of police to act also continued as FIRs were not registered against the hooligans who unleashed violence. Thousands of calls to the phone number 100 went unanswered.

A two-judge bench headed by Justice Muralidhar was hearing a writ petition seeking directions to the police to register FIRs regarding the violent riots and the government to provide safe passage to injured victims to hospitals. And, in a few hours, the Rashtrapathi Bhawan was churning out the order transferring Justice Muralidhar to the Panjab and Haryana High Court.

Related news: CBI vs CBI: Judge rebukes former officers sparring in Delhi HC

The government did not bother about the protests of the Delhi Bar Association. No one knows the reason for his transfer. The midnight transfer and secrecy over it reminds us of the absolute necessity of transparency in transfers and appointment of judges.

It is a constitutional requirement that the judiciary must prove that it is independent of executive influence in adjudicating matters concerning the rule of law.

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

(The Federal seeks to present views and opinions from all sides of the spectrum. The information, ideas or opinions in the articles are of the author and do not reflect the views of The Federal.)