8 Oct 2023 3:20 AM GMT
Former Orissa High Court Chief Justice S Muralidhar said that he did not know why the order passed by him in relation to the Delhi riots upset the Union Government.
At a conclave organised by online news portal 'The South First' at Bengaluru, a member in the audience asked Justice Muralidhar about the perception that his order in the Delhi riots case cost him the elevation to the Supreme Court.
"During the Delhi riots case, you made a late night judgment. And there are arguments that you upset the government and you did not make it to the Supreme Court. What are your views on this?" the person asked.
Justice Muralidhar replied :
"I don’t know what is it that upset... Any other judge should have done the same thing. Every other colleague of mine in the Delhi High Court would have reacted the same way. I don't think anybody else would have acted differently. So, what is that upset the government, I am as clueless as you are, if at all they were upset. I only have this to say. It does not matter, because many did people feel that it was the right thing to do. In fact, it was. I was later told that many lives were saved with that intervention by the Court," Justice Muralidhar said.
Senior Advocate Sanjay Hegde said in response, "It is written somewhere, if you save one life, you have saved the humanity. I am very proud of you for that."
In the midst of the communal riots that gripped Delhi in February 2020, Justice Muralidhar had convened a midnight hearing at his residence to pass urgent orders to evacuate a group of patients who were stranded at a hospital in a riot-hit region. The order was necessary as the patients, who required emergency medical treatment at a bigger specialist hospital, could not be moved due to the riot situation. Later in the same day(February 26, 2020), Justice Muralidhar passed another order asking the Delhi Police to decide within 24 hours on registering FIR against certain BJP leaders for allegedly making provocative remarks. In a dramatic hearing, Justice Muralidhar expressed surprise when the Delhi Police claimed ignorance about the speeches, some of which had gone viral in the social media. Justice Muralidhar directed the clips of the speech to be played in the Court for the police officer who was present there and passed a stern order to take a decision on registering the FIR, despite the strong opposition by the Delhi police. On the same night, the Union Government notified his transfer to the Punjab and Haryana High Court.
At The South First conclave, Justice Muralidhar was in a conversation with Senior Advocate Sanjay Hegde on the topic "Who wins who loses in the Judicary-Executive faceoff.”
Hegde started the session by saying that Justice Muralidhar was in a distinguished group of judges like Justice Chagla, Justice PD Desai who could not make it to the Supreme Court and said that he was a "victim of the collegium." In this backdrop, he asked Justice Muralidhar the criteria he would rely on to pick judges.
Justice Muralidhar said that the judiciary as an institution must be representative and that the recent collegium statements place an emphasis on adequate representation on criteria such as gender, caste ,religion, geography etc.
"What could be safely said is that, within these criteria, choose the best," he said. A brilliant lawyer does not necessarily become a good judge. The capacity to be objective and fair is the yardstick to pick a good judge, he opined. More important is the capacity to decide.
On Judicial independence
There is a perspective that if there is a strong executive, the judiciary will be weak and vice-versa, he said during the conversation. He said that a "perceptible shift" in the dynamics between the judiciary and the executive happened in 1971 when the Congress won absolute majority in the Parliament.
He reminded that the debate about judicial independence must address all levels of judiciary.
"When we talk about independence of judiciary, the public tend to overlook that there are several courts in the hierarchy. How independent is a Magistrate's functioning or a District Judge's functioning? We don't seem to be focusing on it at all and I think we are making a serious mistake. There are some 14,000 odd judges at that level and there are about 1000 odd High Court judges and 34 Supreme Court judges. That's the pyramid. It would be a mistake to confine the discussion on independence of judiciary to the High Courts and the Supreme Court. Of course, they are the constitutional courts. But when we talk of the independence of the judiciary and the control of executive of the judiciary, we should talk of all levels. If the Magistrate is to work in an atmosphere of fear and intimidation, what does that mean to the independence of judiciary." he said.
"So let's talk about the executive control of judiciary at all levels. The facilities for judges are provided by the funds that come from the state government. A Magistrate has to constantly deal with the police. The District Judge on the administrative side has to constantly interact with the Superintendent of the Police. For the execution of warrants issued by the Court, they are entirely dependent on the government. For the funds to be released for administrative work, the judges are entirely dependent on the government. I wish somebody did a more intensive study on where we stand as a judiciary vis-a-vis the executive when we talk of independence".
Collegium sometimes strategically keep back names which they feel will not go through the government
As regards the independence of judiciary at the Supreme Court level, he said that there is a sense of deja vu with the situation in 1971.
"From 71 onwards, you will find a deja vu. You will find that all these issues we are talking about played out in the past with a strong executive. In both the pre-collegium and post-collegium systems, judges have found that they have to walk a tight path if they have to get the kind of candidates they want for the court"
"What is that tight path and does it lead to the right results?" Hegde asked at this point.
"By walking the tight path I mean, to understand the sense you get...it is a collective exercise. I have to convince you that the choice is right. The first level is the collegium. I have to convince my senior colleagues. Then the files go to the Chief Minister, the Central Government. Until the background check is done, the names are not picked. Sometimes, as a collegium, if we feel that this name will not go through with the present dispensation, and you still want this candidate to be available for future, you strategically keep back this name. You won't send it to be rejected. You have to strategise, because you are looking at two wings of the State. You have to know when to do what. These are the moments when the public feels that the executive is having the upper hand and the judiciary is not able to have its way."
In this context, Justice Muralidhar spoke about the 7.5 years tenure of Justice YV Chandrachud as the Chief Justice of India, during which he had to walk a tight rope. "He couldn’t get several really good judges in, or, he couldn’t get them at a time that he wanted them at. And there were pressures and pulls from several directions on who should come in first, who should come in next,” Justice Muralidhar said.
Mandatory cooling-off period needed
Justice Muralidhar spoke about the need for a mandatory "cooling off" period after retirement before any judge is appointed in any tribunal or commission. This was necessary to preserve the perception of judicial independence, he said.
"It is very troubling that the files for (post-retirement appointment) are being prepared when the judge is still in the office. It is a salutary thing to have a cooling off period".
Responding to another question, he said that Artificial Intelligence cannot replace judges. He opined that AI is ultimately a tool which can assist in the judicial process; but it cannot wholly replace a human judge, because an emotional quotient is necessary for a fair adjudication.
"In every case, there is a human factor to be kept in mind. For example, there is a case of a woman who threw her two kids to the river and wanted to jump herself into it because of poverty. It is a clear case of murder. But it is heart wrenching to sentence that kind of a person. So you will have to exercise a discretion in the sentence," he said. He added that the same judge might decide a matter differently if the same case came to her after ten years because perspectives change with life experiences.