Justice S Muralidhar’s transfer stirs debate
The transfer of justice S Muralidhar from the Delhi high court to the Punjab & Haryana high court and the decision to have the case in high court on Delhi riots transferred from the bench of justice Muralidhar to a bench headed by chief justice DN Patel have created a controversy.
The central government notified the transfer of justice Muralidhar to the Punjab & Haryana high court late on Wednesday. The petition by Harsh Mander seeking court’s intervention in the Delhi violence was heard by justice Muralidhar on Tuesday and he made some strong remarks against Delhi Police for not registering FIRs for hate speech against some BJP leaders. However, the case was shifted from his bench to the bench headed by chief justice DN Patel on Thursday.
Both decisions have come in for criticism.
First, the case. The petition relating to Delhi violence was a public interest litigation petition (PIL) filed by activist Harsh Mander. Cases in courts are assigned to judges based on the roster prepared by the chief justice of the concerned court. As per the roster of the Delhi high court, PIL petitions are assigned to Division Bench I and Division Bench II. Division Bench I is headed by Chief Justice DN Patel and Division Bench II by justice GS Sistani.
When Mander’s case came up for hearing on Wednesday, both chief justice DN Patel and justice GS Sistani were not sitting.
As is the convention, the case was posted before the next senior judge who is justice S Muralidhar.
When the roster judge resumes duty, the norm is that the case reverts to the roster judge, in this case, chief justice DN Patel. The case was, thus, posted before chief justice Patel on Thursday, and as per this norm, would have been heard by him even if justice Muralidhar had not been transferred.
“The convention is that once the roster judge resumes his/ her duty, the matter will revert back to the roster judge. The roster judge is then well within his/ her rights to hear the case or send it back to bench which started hearing the matter. In this case, it was the call of Chief Justice DN Patel who was the roster judge.
By transferring justice Muralidhar, the government, however, ensured that justice Muralidhar will not be able to hear the matter even if Chief Justice Patel wanted to send it back to justice Muralidhar”, senior counsel Sanjay Hegde told HT.
However, senior counsel and Congress spokesperson Abhishek Manu Singhvi held a different view.
“To pass order directing Muralidhar J to assume charge at Punjab & Haryana high court bang in the middle of a sensitive hearing is terribly unprecedented and unheard of. Shameless interference in an actual inter-partes case. To what lengths is this government prepared to go for its vendetta objects?” Singhvi said.
He also referred to an earlier attempt to transfer justice Muralidhar out of Delhi high court in January 2019 which was stalled by the Collegium.
“No one tells us how and why Muralidhar J is fit to be transferred now, when SC collegium few months ago resisted so transferring him. Clearly the current CJ of Punjab & Haryana HC has years to retire. Cannot assume current CJ of Punjab & Haryana elevation to SC. Hence clearly punitive transfer of Murali J”, he tweeted.
Second, the issue of the transfer. The transfer of justice Muralidhar to Punjab & Haryana high court was recommended by the Collegium on February 12. Two other judges, justice Ranjit More of Bombay high court and justice Ravi Vijaykumar Malimath of Karnataka high court, were also recommended by the Collegium for transfer to other high courts along with justice Muralidhar.
The central government notified all three transfers on Wednesday evening.
Experts say that as per convention, a judge cannot be appointed chief justice of his/ her parent high court and is transferred to another state to take over as chief justice of the high court of that state. However, justice Muralidhar is not being transferred as chief justice of Punjab & Haryana high court. But that does not preclude him from being elevated as chief justice of other high courts as and when a vacancy to the post of chief justice arises.
Union Law Minister Ravi Shankar Prasad also said that the consent of the judge was taken before the transfer.
“Transfer of Hon’ble Justice Muralidhar was done pursuant to the recommendation dated 12.02.2020 of the Supreme Court collegium headed by Chief Justice of India. While transferring the judge consent of the judge is taken. The well settled process has been followed”, he said in a tweet on Thursday.
However the Congress Party had a different point of view.
“Any judge that has ordered the investigation or prosecution of a BJP leader, or has disagreed with the govt’s stand has either been transferred or suffered a violent fate. Is this a message from the BJP to judges, you’re either Loyal Or Loya”, the Congress Party tweeted referring to judge BH Loya, whose death became a subject of controversy after he died while hearing the Sohrabuddin Sheikh case in which current home minister Amit Shah was once an accused. Shah was subsequently discharged from the case.
Senior advocate and President of the Supreme Court Bar Association, Dushyant Dave was also critical of the transfer of justice Muralidhar.
“The transfer may have been routine and after his consent. If it took place (based) on a February 12 Collegium order, then where was the need to pass a midnight order on February 26 by the Government of India directing him to “assume charge of his office in Punjab and Haryana high court while he was in the midst of hearing a sensitive and important matter. Government of India has clearly done this to frustrate justice and to defeat rule of law”, Dave said.
One anomaly which, however, stood out with regard to justice Muralidhar’s transfer was the omission by the government to specify the date on which the transfer is to take effect. Notifications by the government transferring high court judges usually allow a reasonable time for the concerned judge to take charge at the transferred posting. This is missing in the case of justice Muralidhar and the other two judges whose transfers were notified on Wednesday.