A Transfer, and its Discontents

The recent move to transfer Justice S. Muralidhar to the Punjab and Haryana High Court from the Delhi High Court has created a furore, with the Delhi High Court Bar Association up in arms against the said decision of the Supreme Court collegium. The Bar Association has condemned the move of transferring “one of the finest judges to have adorned the Bench” as being “detrimental to our noble institution, but also tend[ing] to erode and dislodge the faith of the common litigant in the justice dispensation system.”

While the controversy rages unabated, in order to better appreciate the aforesaid stand of the Bar, it is necessary to understand the two distinct limbs of the sentiment in question viz. that of the concerned individual Judge, and the institutional integrity of the judiciary.

To talk about the former first, the high regard and affection that Justice Muralidhar commands is perhaps most beautifully captured in a deeply symbolic photograph that dates to the early years of the past decade. Through the long and torturous legal journey, stretching over decades, charted by the cases brought on behalf of the Bhopal gas tragedy victims, various significant victories were achieved by hopelessly outgunned and embattled victims through the hard work and persistence of several unsung advocates, many of whom fought the gruelling legal battle on a completely pro-bono basis. Sometime in the aftermath of one of these precious and hard-fought successes before the Supreme Court, a photograph seems to have been taken, and which is still available on an otherwise obscure web-page dedicated to the legal journey of the cases [1], which shows a veritable mob of overjoyed litigants flashing the victory sign while surrounding the person who successfully represented them.

The photograph captures a rare and fleeting moment of happiness in the faces of these men and women, otherwise worn-down from years of fighting for basic dignity and recompense against gross bureaucratic apathy, and of having to deal with the frustratingly glacial pace of an overburdened judicial system. In the middle of the scrum stands a diminutive bespectacled advocate, wearing a sheepish smile and looking away from the camera, displaying a shy reticence not entirely at ease with the exuberant adulation of those who surround him. The advocate in question is S. Muralidhar (as he then was).

As if the photograph was a simulacrum of what the future would behold, Justice Muralidhar in a judicial career stretching over 14 years from his elevation to the Bench of the Delhi High Court in May of 2006, has waged a relentless, albeit relatively un-photographed, struggle for the cause of justice for the underprivileged, the powerless and the disenfranchised, while upholding the finest traditions of independence and integrity. The adulation, from the members of the Bar, and the trade-mark sheepish smile have also remained in place.

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. From being part of the Bench in cases which witnessed the striking down of Section 377 of the Indian Penal Code, 1860 [2] to one that extended the Right to Information Act, 2005 to the Office of the Chief Justice of India [3], Justice Muralidhar has pronounced verdicts greatly expanding the scope of protection offered to a wide variety of persons including riot victims [4], under-trial prisoners [5], those suffering from mental illness [6], the physically disabled [7], women suffering sexual harassment at the workplace [8] and slum dwellers [9] 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. [10] 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-discourse in the country to new heights.

With his uncompromising stand on the rights of the individual, it is easy to typecast Justice Muralidhar as a human rights-oriented Judge. While there is nothing per-se wrong with such an identification – and it is in fact a badge of honor – it does represent an over-simplification of his vast and varied contribution on the Bench, and ignores the immense work he has done on disparate rosters/jurisdictions during the course of his tenure thus far. These areas include arbitration, tax, intellectual property rights and competition law to name a few.

To cite a specific example, when Justice Muralidhar was first marked the arbitration roster in the Delhi High Court late in the year 2011, the oldest case in the ‘regular’ list of the arbitration roster of the High Court i.e., matters admitted for final hearing, was of the year 1994. However, by the time Justice Muralidhar had moved out of the roster around a year and a half later, he had brought down the pendency of cases in the regular list all the way from the year 1994 to the year 2006, in addition to disposing of an equally vast number of freshly listed matters. This massive and sustained assault on the pendency has been Justice Muralidhar’s hallmark, and every single roster that he has presided over has witnessed a marked reduction in the case-docket and an accompanying copious output of seminal pronouncements during his tenure.

Accompanying this furious pace of justice delivery was an omnipresent smile and the pleasant and calm demeanor that lay behind it, which has endeared him to the Bar. For members of the Bar, both young and old, the experience of addressing Justice Muralidhar has always been an exceedingly pleasant and intellectually stimulating one, steeped in collegiality.

One humorous incident witnessed in Court which readily comes to mind is when Justice Muralidhar was presiding over the arbitration roster and had to contend with a long-drawn-out case involving a dispute as to the ownership of a restaurant that served South Indian cuisine. Considering the fact that the matter had been pending adjudication for a long period of time, upon the matter being directed to be listed for final hearing on a short date, one of the advocates involved in the matter was obviously elated at the impending conclusion of the proceedings. Driven by innocent joy, and seeming nonchalance about matters of political correctness, he chirpily remarked in Court to a flabbergasted and somewhat bemused Justice Muralidhar, who originally hails from Tamil Nadu, that he was very happy about Justice Muralidhar hearing the matter as he would be able to readily appreciate the controversy with the restaurant’s mainstay and best-seller apparently being its ‘idly-sambar’!

Justice Muralidhar’s oft-quoted request to the Bar, though largely unheeded, of not addressing him as ‘My Lord’ or ‘Your Lordship’ is but an extension of his general personality.

Another recent unheeded request was Justice Muralidhar’s entreaty to the Delhi High Court Bar Association, as confirmed by the President of the Bar Association, to not abstain from work or engage in any protest against his transfer. [11] The Bar did abstain as a mark of protest, nonetheless, on the principle of institutional integrity, and this brings us to the latter sentiment flagged in the beginning of the present piece. Uncritical hero-worship of any kind is, undoubtedly, problematic. However, 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.

Justice Muralidhar is at present the third senior-most Judge in the Delhi High Court, and after the impending retirement of Justice G.S. Sistani, he would be second in seniority, next only to the Chief Justice of the Delhi High Court. For a Judge of such seniority, a transfer, as per the usual practice, would only be effected so as to install him as Chief Justice of another High Court. However, the proposed transfer to the Punjab and Haryana High Court is not as Chief Justice but as the second senior-most Judge. There are certain reports that the apprehensions around the transfer are unwarranted inasmuch as it is a step towards Justice Muralidhar’s eventual installation as Chief Justice of the Punjab and Haryana High Court pursuant to the anticipated elevation of the present incumbent to the Supreme Court. Though one hopes and prays that this is the real intent behind the proposed transfer, it still does not answer the abrupt need to effect the transfer at the present juncture, instead of when the position would actually open itself up. The unreasoned nature of the transfer order also gives rise to unnecessary speculation about the reasons for doing so, and involves an element of underserved stigma. 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 Ors.[12], though in the context of eschewing transfers for the purported advancement of ‘national integration’, 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.”

Yet further, the real underlying intent pales into relative insignificance when it is considered against the backdrop of the unnecessary controversy that the transfer will engender, particularly in light of the allegations of executive interference. 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. One needs to go no further than remind oneself of Justice V.R. Untwalia’s dissenting opinion in Sankalchand Himatlal Sheth (supra) wherein he observed as under:

"I am not concerned to say here whether the judgments delivered were right or wrong.Nobody can say that a Judge is liable to be transferred because he has delivered a wrong judgment. But one thing is certain and I again take courage to say so with the utmost responsibility that the panic created had shaken the very foundation and the structure of the independence of the judiciary throughout the country."

The tendency to characterize judgments which uphold fundamental constitutional tenets and civil liberties as demonstrating courage and independence and being ‘bold’, and therefore seemingly atypical by implication, is somewhat oxymoronic inasmuch as these are precisely the values that a Judge of a Constitutional Court takes an oath to affirm and protect. In this sense, however, while tweaking a famous phrase from Christopher Nolan’s ‘Dark Knight’ trilogy [13], Justice Muralidhar represents a ‘hero’ that the institution of the judiciary both ‘needs’ and ‘deserves’. Any injustice to him, real or perceived, represents our collective failure. 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.” [14]

Dr. Amit George is an Advocate practicing before the High Court of Delhi.

[1] ‘The Bhopal Gas Disaster’, International Environmental Law Research Centre, 2004, available at http://www.ielrc.org/india/bhopal.php> (last accessed 23 February 2020).

[2] Naz Foundation v. Government of NCT and Ors. 160 (2009) DLT 277.

[3] Secretary General, Supreme Court of India v. Subhash Chandra Agarwal 166 (2010) DLT 305.

[4] State and Ors. v. Sajjan Kumar and Ors. 2019 IAD (Delhi) 1.

[5] Nina Rajan Pillai and Ors. v. Union of India (UOI) and Ors. 180 (2011) DLT 104.

[6] Ravinder v. Govt. of NCT of Delhi and Ors. 2018 (171) DRJ 346; Sangamitra Acharya and Ors. v. State (NCT of Delhi) and Ors. 250 (2018) DLT

[7] Lalit and Ors. v Govt. Of NCT and Anr. MANU/DE/1392/2010.

[8] Punita K. Sodhi v. Union of India (UOI) and Ors. (2011) I LLJ 371 Del.

[9] Ajay Maken and Ors. v. Union of India and Ors. 260 (2019) DLT 581.

[10] Aprajita Kumari and Ors. v. Joint Director, Enforcement Directorate and Ors. 2018 IIAD (Delhi) 237, Sandeep Kumar v. The State (Govt. of NCT of Delhi) and Ors. MANU/DE/4326/2019.

[11] ‘Muralidhar was the darling of the bar’: Senior Lawyers condemn HC Judge’s proposed transfer’, LatestLaws.com: Helping Good People Do Good Things, 21 February 2020, available at https://www.latestlaws.com/latest-news/senior-lawyers-condemn-hc-judge-s-proposed-transfer/> (last accessed 23 February 2020).

[12] Union of India v. Sankalchand Himatlal Sheth and Ors. (1977) 4 SCC 193.

[13] The Dark Knight Trilogy: The Complete Screenplays, OPUS, 2013, at p. 323.

[14] Bertolt Brecht, ‘The Life of Galileo’ (1939).