Interview: Justice Muralidhar on ‘weak’ CJIs, Ayodhya verdict and more

Hyderabad: Outspoken, upright and a firm defender of citizens’ constitutional rights. In the legal circles, Justice S Muralidhar’s name evokes both respect and admiration in equal measure. Perhaps that’s why his panel discussion at the Hyderabad Literary Fest on Sunday, January 25, was a full house.

As a judge in the Delhi High Court, he came down heavily on the Delhi Police for failing to control the 2020 riots that rocked the national capital, particularly for not registering first information reports (FIR) against Bharatiya Janata Party (BJP) leaders for their inflammatory speeches, a decision seen as challenging the Centre.

Merely hours later, the Ministry of Law and Justice notified his transfer to the Punjab and Haryana High Court, sparking widespread condemnation for the government’s interference with judicial independence.

Justice Muralidhar retired as the Chief Justice of the Orissa High Court in August 2023. However, the Supreme Court designated Justice Muralidhar as a senior advocate of the apex court later in October that year.

The outspoken Justice Muralidhar spoke to Siasat.com’s Osama Salman on the sidelines of HLF on a range of topics – from the subservience of Chief Justices of India (CJI), the Babri Masjid verdict to the influence of social media activism on the judiciary – in a candid interview.

Excerpts:

Q. The last few CJIs have been criticised for being “weak,” especially from observers of the courts, as well as a certain section of lawyers. Your comments.

Justice Muralidhar (JM): The criticism stems from some CJIs not being able to stand up for the independence of the institution of the Supreme Court. The criticism is also based on what people are seeing the institutions, such as the top court, do. To give you some examples, we have come to a stage where in a resolution of the collegium of the Supreme Court, they say because the central government asks us to do this, we are now recalling our earlier resolutions, such as the transfer of Justice Atul Sreedharan earlier to the Chhattisgarh High Court and now to the Allahabad High Court [from the Madhya Pradesh High Court]. And this is really quite astounding.

On appointments of judges, transfers of judges and appointments of chief justices and many such issues, they’ve (CJIs) actually buckled. What people also haven’t noticed is, and this matters to people in the system, that if the Supreme Court sends recommendations of a set of names in a certain order, they have to be sworn in in that order.  The central government, while notifying those names, changes that order. And you have the collegium of the Supreme Court not protesting against it. 

Second, as master of the roster, the CJI determines who and which bench of that Supreme Court will hear what kind of cases. I have been a Chief Justice [of the Orissa High Court] for two-and-a-half years. I am supposed to know my court. I’m supposed to know if judge A is a relief-granting judge or a relief-denying judge? It’s necessary for us to have all kinds of judges, but it’s necessary for a CJI to know what the inclination of a judge is. If I decide that I should send this case to a bench that generally denies bail, then I’m somewhere pushing the case to a certain logical end. When I mark that very case to another bench where I know the judges are more likely to grant relief, then again, I’m pushing the case to a certain end. 

So, this power I have as a chief justice is quite immense. And people should not be ignorant of this very important fact, which can determine the outcome of a case. So when we talk of bail being denied, a bail being granted, a case being taken up or a case not being taken up, this power of the master of the roster, of the Chief Justice, is a very important power that needs to be interrogated. 

These are the questions that, as people who watch the institutions, ask and when the answers are in a certain direction, we say this is a weak CJI. 

Q. So, essentially, you agree with the statement.

JM: I would definitely say that there is a failure by the CJIs to assert their independence, and not just individual independence but independence of the institution. And when they have to assert, they’re not just asserting independence of the Supreme Court or of the High Courts, but most importantly, the independence of the district courts. 

The other day, you had a transfer of a subordinate judge because he booked an FIR against a police officer [The Uttar Pradesh government transferred Chief Judicial Magistrate Vibhanshu Sudhir to Sultanpur, days after he ordered the registration of an FIR against several police officers in connection with the Sambhal violence case]. 

What are you doing? How can we allow this to happen? What’s the message getting out? So, that’s what we’re all worried about. 

Q. One of the things that you touched upon in your panel discussion at HLF was the denial of bail. Coming specifically to Umar Khalid and Sharjeel Iman, not only have they been denied bail in the 2020 Delhi riots case, but they cannot apply for bail for a year.

JM: Don’t pick only these two cases. I also completely agree on the injustice done to these two, but there are a large number of similar people whose profiles are not so prominent. We’re not talking about it. 

Look at activist Mahesh Raut [in jail since 2018 for the Bhima Koregaon violence case]. He was granted bail by the Bombay High Court, which was stayed by the Supreme Court, and the case was not taken up for another two years. In effect, they are denying him the relief granted to him for another two years. There are so many egregious cases, and this is something that’s very disappointing. 

Having been a judge myself, I find it quite unjustifiable that you will deny bail, despite these persons having been under trial for so many years. The second problem, which I’m noticing, is the conditions on which bail is granted. [2020 Delhi riots case accused] Gulfisha Fatima, the kind of conditions the bail has, it’s like a house arrest. What kind of liberty is this? Because the idea of bail is to be able to shift you from a situation of no liberty to liberty.

Q. The environment we’re seeing at the moment is that religion trumps all. It influences policy, it influences judges, it influences judgments. Specifically, the Ram Janmabhoomi-Babri Masjid case, where it was taken up as a property dispute case and later turned into something else. In fact, the then CJI Dhananjaya Chandrachud said he prayed to god to help him with the judgment. What do you have to say about this?

JM: This is a troubling aspect. In fact, the operative part of the Ayodhya judgment, despite discussing all the evidence, finally what the Supreme Court has relied on is Article 142 (granting the Supreme Court the power to pass any order necessary to secure complete justice). They themselves are saying that all the evidence that we’ve discussed doesn’t square up, doesn’t help us to come to this conclusion. To come to this conclusion, we have to go by Article 142. That itself makes the whole exercise very questionable. They’ve predetermined the outcome. 

The Ayodhya judgment is riddled with internal inconsistencies. They say the breaking down of the mosque was a criminal act, it’s a violation of the rule of law and that it can’t be lightly overlooked. They say the Muslims continued praying there till 1949. So, all of this evidence we take together, then you wonder where this conclusion is coming from. 

Second, the direction that a temple should be built on the disputed site was not a prayer made by any of the petitions. Twenty issues were framed. Not one of those issues raised said a temple should be built where the mosque stood. The judgment is quite extraordinary. If you look at it from various angles, it’s a disturbing trend. 

Now, we are seeing that despite the Places of Worship Act, the Supreme Court actually gave a green signal to say, you can have this survey or that survey, you can have prayers of this group from this entrance, the other group from that entrance, creating tinderbox situations.

So the judiciary is actively being party to this. You are seeing the strength of aligning the priorities of a certain dominant majority, and that’s very disturbing.

Q. Speaking of pressure, there’s been a lot of pressure of late from social media or protests. One of the more recent issues would be the Supreme Court first passing an order about stray dogs and then rolling it back.

JM: Within that case also, first, they took it to a larger bench of three, which virtually stayed the order of a bench of two judges. It’s like an intra-court appeal. The second order stays the first order, and they say, “No, no, we didn’t. We forgot to tell you that after sterilization or neutering, the dogs can’t go back to the same area.” Where did that come from? 

Internal inconsistencies come because of social media pressure. And this is a polarized society. The dog’s issue is severely polarized. 


Q. How does the judiciary insulate itself from pressure?

JM: If they insulate themselves too much, they lose touch with the ground realities, like those from a certain class of society. You don’t know how the poor live. Most of the criminal law cases concern those classes of society. They’re all facing tremendous pressure and deprivation, and you, on a moral high ground, belonging to a different cultural orientation, are called upon to judge that. So there is a problem there as well. There has to be a balance on this. Lord Krishna has said that if you have to be relevant to your own people, you can’t afford to be insulated too much. You have to be allowed to expose yourself to the way lives are lived and yet maintain your inner balance and your composure. Most importantly, the orientation for impartiality. That’s the biggest challenge of being a judge.