ABSTRACT
When
talking or reading about the Supreme Court (SC), we frequently come across the
term “Supreme Court Collegium”. This system is one of the central tenets of the
Indian judiciary today although knowledge regarding it is limited amongst
citizens- and contention against it is widespread amongst the political class.
From the very beginning, there is a perception that the Collegium system, which
finds no mention in the Constitution and is a mechanism put in place by the SC
itself personifies the democratic deficit that plagues the Indian Judiciary.
Nonetheless, the members of the Collegium, whilst signifying the fierce
independence of the judiciary, also exemplify the cabal-like behind-the-door
dealings of the judicial branch that lacks accountability and public scrutiny. At
the same time, despite the opprobrium, there has been no active attempt by the
legislature or the executive even to find a viable alternative. Therefore,
there is a public outcry that the judiciary has indeed no choice but to fill the
gaps left by the other two branches of the government. The collegium is
accustomed to controversies, but its recommendations are now under attack
probably. This paper makes an attempt to unravel the mystery behind the
transfer of one of the finest judges to have adorned the bench. The recent move
to transfer Justice S. Muralidhar to the P&H High court from the Delhi High
court has created a furor among the legal fraternity. The Bar Association has
condemned the said transfer for being detrimental to the noble institution of
judiciary, and also tending to erode and dislodge the faith of the common
litigant in the justice dispensation system.
PROLOGUE
Justice
S Muralidhar, the first picture which comes across the mind after hearing this
name is that of a diminutive bespectacled advocate, wearing a sheepish smile,
displaying a shy reticence and fighting the grueling legal battle for the
victims of Bhopal gas tragedy, and that too on a completely pro-bono basis.
This picture was nothing but a simulacrum of what the future would behold.
Justice Muralidhar in a judicial career stretching over 14 years, has waged a relentless struggle for the cause of justice for the underprivileged, the
powerless and the disenfranchised while upholding the finest traditions of
independence and integrity. Justice Muralidhar is frequently categorized as a
‘bold’ and ‘progressive’ judge. These monikers have been bestowed upon him on
account of a litany of path-breaking judicial pronouncements which have altered
the legal landscape and opened up a new prism of rights in hitherto uncharted
areas for citizens across the country.
THE MEEDFUL GESTURES OF JUSTICE MURALIDHAR ON JUDICIAL SIDE
From
being part of the Bench in cases which witnessed the striking down of Section
377 of IPC, 1860[1]
to one that extended the Right to Information Act, 2005 to the Office of the
Chief Justice of India[2],
Justice Muralidhar has pronounced verdicts greatly expanding the scope of
protection offered to a wide variety of persons including riot victims[3],
under-trial prisoners[4],
those suffering from mental illness[5],
women suffering from sexual harassment at the workplace[6]
and slum dwellers amongst others. His judgments have also been characterized by
their steadfast and unrelenting refusal to countenance heavy-handed action by
state instrumentalities, and their dogged defense of individual liberties.
These judgments reflect not a flippant or knee-jerk ‘Robinhood-Esque’ concern
for the downtrodden, but a meticulous, considered and humane jurisprudence that
has elevated the rights-recourse in the country to new heights.
THE PIXILATED AND IRRATIONAL DECISION OF THE COLLEGIUM
By
way of its “Statement” of February 12, the Supreme Court Collegium recommended
the transfer of Justice S Muralidhar, from the Delhi High Court to Punjab &
Haryana High Court, which ultimately stirred controversy in legal circles. The
“Statement”, as uploaded on the Supreme Court website, is devoid of any
reasons- conspicuous by their absence- and is thus against the spirit of its
own Resolution of October 3, 2017, passed evidently to ensure transparency in
its functioning. It created a huge agitation among the members of Delhi High
Court Bar Association. However, there was an unheeded request by Justice
Muralidhar to the Delhi High Court Bar Association, to not abstain from work or
engage in any protest against his transfer. The bar did abstain for one day as
a mark of protest, nonetheless, on the principle of institutional integrity.
Uncritical hero-worship of any kind is, undoubtedly, problematic. Howbeit,
appreciating and standing up for Judges who have gone above and beyond the call
of duty is crucial for the well-being and the strength of the institution of
the judiciary. An upright and fiercely independent Judge, through his or her
visage engenders hope and faith in the system of justice delivery amongst
lawyers and the general public alike.
INVIDIOUS AND OPAQUE COLLEGIUM FUNCTIONINGS
It
is extremely telling and disturbing that there is speculation on both sides,
with the Bar and retired members of Bench voicing their strong opinions for and
against the said transfer. All this conjecturing could have been nipped in the
bud, and indeed not even arisen, had the Statement of February 12 recommending
the transfer followed its earlier Resolution of October 3, 2017, and indicated
the reasons specified. However, the biggest eventual victim of this uncertainty
and speculation is the institution itself, followed closely by the faith
reposed in it by the litigant.
Should
not the material which is considered before or when the transfer of a Judge is
being deliberated be shared with the concerned Judge and all stakeholders given
that transfers are in “public interest” for promoting better administration of
justice throughout the country? If this had been done, probably there would
have been no floodgates of questions from the society regarding the said
transfer. The non-disclosure of reasons for the transfer of judges causes
another cascading unwelcome outcome. Since the reasons for the transfer of
Justice Muralidhar have not been disclosed, it has led some to believe that the
reason for the same is the result of executive interference due to his having
passed judgments that were not very palatable to the government. Though it is
hoped and prayed that this is not the case, however, even if that possibility
is believed to be true, it would lead to a chilling
effect. This could potentially be manifested in inhibition on the part of
the Judges and would discourage them from exercising, in letter and spirit,
their Oath of Office as enshrined in the Third Schedule to the Constitution of
India, to:
“…...bear true faith and allegiance to the
Constitution of India….duly and faithfully and to the best of my ability,
knowledge and judgment perform the duties of my office without fear or favor,
affection or ill-will…...”
RAMIFICATIONS AND NEED FOR REFORMS
The
unreasoned and abrupt decision to transfer a Judge whose integrity and
independence is unquestioned opens the door for unbridled speculation as
regards the underlying motivation behind such a transfer. Few things could be
more destructive of public faith in the judicial institution, and it needs no
gainsaying that this should have been avoided. In this regard, it is
appropriate to remind ourselves of the words of Justice Y.V. Chandrachud, who
while writing for the majority in Union
of India v. Sankalchand Himatlal Sheth and Others[7],
held as under: “Considering the great inconvenience, hardship and possibly
a slur, which a transfer from one High Court to another involves, the better
view would be to leave the Judges untouched and take other measures to achieve
that purpose.”
Let
recent transfers act as a catalyst to reconsider the policy pertaining to the
transfer of judges. And yet, could it not be said that the view was taken by
Justice Chandrachud, 43 years ago, in the Sankalchand Sheth Case as regards
transfers, was perhaps the correct one with greater applicability in today’s
time? With the judiciary missing no opportunity to uphold the basic structure
doctrine and preserve at all cost its independence, is there not a need for
transparency in judicial functioning so as to dispel any notion of favoritism
or bias? Even if assume, the transfers are based on “public interest”, then
does the public not have a right to know such reasons? The importance and
necessity of recording reasons can, of course, not be overstated enough. In Raj Kishore Jha v. State of Bihar,[8]
the Supreme Court has already opined, “Reasons is the heartbeat of every
conclusion. Without the same, it becomes lifeless.” And why should these
reasons not be justiciable, especially at a time when even the decisions of the
President declining mercy petitions of the death-row convicts have been allowed
to be challenged in the Supreme Court. The sheer timing of the said transfer
overshadows the routineness of the transfer, which the present Union Law
Minister is continuously defending. Former Chief Justice Pradeep Nandrajog
recently said, albeit in a different context, that “when you do something in a
secretive manner, then even your best intentions look very doubtful in to.”
EPILOGUE
Despite
of all these circumstances, Justice Muralidhar accepts the proposal of
Collegium regarding his transfer with wearing his trademark sheepish smile.
Being bold and independent as a Judge, is his attribute and no doubt he will be
the same, irrespective of the place where he serves. He will continue to fight
against the wrong, irrespective of who is on the other side. His impeccable tendency to uphold the ethos
of our Constitution will still remain in force, till he is serving Indian
Judiciary. Justice Muralidhar represents a ‘hero’ that the institution of
judiciary both ‘needs’ and ‘deserves’. Any injustice to him, real or perceived,
represents the failure of the country. To conclude, the irony in, and paradox
between, celebrating Judges like Justice Muralidhar on the one hand and the
reality of the undesirable circumstances which bring their sacrifice and
commitment to the fore on the other, is perhaps best summed up in the following
exchange between Galileo and his pupil, Andrea:
Andrea:
“Unhappy the land that has no heroes.”
Galileo, while
proceeding to correct him: “No, unhappy the land that needs heroes.”[9]
by-
Dinesh Kumar Samanta, 3rd-year law student at the Utkal University and he is currently pursuing B.A.LL.B.
[2] Secretary General,
Supreme Court of India v. Subhash Chandra Agarwal, 166 (2010) DLT 305.
[3] State and Others v.
Sajjan Kumar and Others, 2019 IAD (Delhi) 1.
[4] Nina Ranjan Pillai
and Others v. UOI and Others, 180 (2011) DLT 104.
[5] Ravinder v. Govt. of
NCT of Delhi and Others, 2018 (171) DRJ 346; Sangamitra Acharya and Others v.
State (NCT of Delhi) and Others, 250 (2018) DLT.
[6] Punita K. Sodhi v.
UOI and Others, (2011) 1 LLJ 371 Del.
[7] Union of India v.
Sankalchand Himatlal Sheth and Others, (1977) 4 SCC 193.
[8] AIR 2003
SC 4664.
[9] Bertolt Brecht, ‘The
Life of Galileo’ (1939).
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