Attempts To Transfer Justice Muralidhar? Here’s a List of Cases Decided by Him Which May Tell You Why
These cases are a testament to his stance against sectarian violence and his pro-individual liberties approach.
Recently, the Supreme Court collegium headed by Chief Justice Ranjan Gogoi reportedly stalled the move to transfer Justice Dr. S Muralidhar out of the Delhi High Court. The Indian Express reported that this was the second time since December last year that Justice Muralidhar’s transfer was attempted.
Per the IE report, in the first attempt, it was a judge of the Delhi High Court on the Collegium who convinced CJI Gogoi to stall the transfer. SC judges on the collegium who also advised against the transfer are Justice Madan B Lokur and Justice AK Sikri. While Justice Lokur has retired recently, Justice Sikri is also set to retire in the beginning of March, 2019.
These bids to transfer Justice Muralidhar should be seen in the light of his recent pronouncements in the 1984 Sikh riots case where, while convicting Sajjan Kumar, the court had condemned the 2002 Gujarat riots. “In India, the riots in early November 1984 in which in Delhi alone 2,733 Sikhs and nearly 3,350 all over the country were brutally murdered (these are official figures) was neither the first instance of a mass crime nor, tragically, the last. The mass killings in Punjab, Delhi and elsewhere during the country’s partition remains a collective painful memory as is the killings of innocent Sikhs in November 1984. There has been a familiar pattern of mass killings in Mumbai in 1993, in Gujarat in 2002, in Kandhamal, Odisha in 2008 and in Muzaffarnagar in UP in 2013 to name a few,” the court had said.
Justice Muralidhar was also on the bench that quashed the transit remand of activist Gautam Navlakha, rapping Maharashtra police for procedural irregularities. Following this, justice Muralidhar was attacked by RSS ideologue and RBI part-time board member S Gurumurthy. Gurumurthy had retweeted a blog called ‘Drishtikone’, titled “‘Why has Delhi High Court Justice Muralidhar’s relationship with Gautam Navlakha not been disclosed?”. Gurumurthy and director Vivek Agnihotri were served contempt notices and were asked to take down the posts.
The first bid to transfer Justice Muralidhar came not long after the initiation of the contempt proceedings, reported IE.
Appointed a judge of the Delhi HC in 2006, Justice Muralidhar has delivered several landmark judgements since then. Here is a list of some important cases heard by Justice Muralidhar, that showcase his strong stance against sectarian violence and his pro-individual liberties approach.
1. Decriminalisation of homosexuality – Naz foundation
Justice Muralidhar was part of the two-judge bench, headed by then chief justice of Delhi HC, that delivered the landmark Naz Foundation verdict which said that Section 377 of the Indian Penal Code shall not cover same-sex consensual relationships between adults. Even though the ruling was reversed by the Supreme Court in Suresh Koushal, Naz foundation was upheld by the Supreme Court in Navtej Singh Johar where the court struck down it’s own ruling in Suresh Koushal.
Naz foundation verdict is at the very foundation of equal legal rights for the LGBTQI community in India.
2. Inter-faith couple united
In July 2018, a bench comprising of Justice Muralidhar and Justice Vinod Goel, hearing a habeas corpus petition, ordered that an inter-faith couple be united immediately. The bench also came down heavily on police authorities, reported Livelaw.
Nisha, who had converted to the Hindu faith after marrying the petitioner, was picked up by Ghaziabad police from the petitioner’s residence on the basis of a complaint filed by her father.
In it’s order reuniting the couple, the court also came down heavily on police authorities, “In the status report filed today nothing is stated about how the police of PS Loni could so easily come to JNU and take away the Petitioner and Nisha and how Nisha, despite being over 21 years of age, was simply “handed over to her parents by the investigating officer” knowing fully well that she had married Sandeep of her own free will. Inspector Rajesh Kumar, Additional SHO of PS Vasant Kunj (North), stated that he had no prior intimation of the visit by police officials from PS Loni in Ghaziabad. If that is the case, it begs the question as to why they did not insist on following the letter of the law and instead simply allowed the police officials from PS Loni to take away two adults from the JNU campus.”
3. Conviction of 16 accused in Hashimpura Massacre case
On October 21, the HC convicted 16 former Provincial Armed Constabulary (PAC) personnel for murder, kidnapping, criminal conspiracy and destruction of evidence under the IPC in relation to the Hashimpura mass murder that took place in Meerut in 1987. A two-judge bench headed by Justice Muralidhar overturned the trial court’s verdict which had acquitted the 16 accused, reported The Hindu.
The judgement authored by Justice Muralidhar said that Hashimpura massacre was a case of targeted killings of members of the Muslim community, adding that “We are conscious that for the families of those killed, this is perhaps too little, too late. They have had to wait for 31 years for justice. The monetary compensation they have received cannot make up for the lives lost. This case points to the systemic failure that results, not infrequently, in a miscarriage of justice.”
4. “Litigation Neurosis”
A 71-year-old litigant who lost his temper over the slow progress of the hearing in his case was illegally confined to a mental institution for 20 days by an order passed by a Metropolitan Magistrate.
The two-judge bench headed by justice Muralidhar apologised for the same, and ordered that the Delhi government must pay a compensation of Rs 2 lakh to the elderly man for his ordeal.
The judgement authored by Justice Muralidhar observed, “The 10-year wait had obviously tested his limits. Litigation fatigue had set in. Every day’s wait for a litigant who has had to spend a decade defending a case is bound to aggravate his litigation neurosis.”
5. Parents ordered to pay compensation to daughter for illegally confining her in mental institution
A 23-year-old woman was picked up by her parents from her music teacher’s residence and detained in a mental institution where she was forced to spend a day and a night.
The two-judge bench of the Delhi HC said that the said act was “clear violation of Section 19 MHA (Mental Health Act) read with Article 21 of the Constitution of India”, reported Livelaw.
Justice Muralidhar also ruled that the writ jurisdiction of a high court under Article 226 was not limited to state action that is violative of fundamental rights. The verdict said that the said jurisdiction can be invoked against invasive action by non-state actors such as individuals and in this case, the woman’s parents.
In this landmark ruling, the court ordered that a compensation of Rs 3 lakh be deposited by the parents into the woman’s own account.
6. In 71 years of independence, atrocities against Dalits show no signs of abating
In August last year, a bench of Justice Muralidhar and Justice IS Mehta convicted 20 people and upheld the conviction of 21 others for the 2010 murder of a 60-year-old Dalit man and his physically challenged daughter in Hisar, Haryana. The violence inflicted by the dominant Jat community had forced 254 Dalit families in the area to flee, Livelaw reported.
In his judgement, Justice Muralidhar wrote that the attack was a “deliberate targeting of the Balmiki community”, adding that, “71 years after Independence, instances of atrocities against Scheduled Castes by those belonging to dominant castes have shown no sign of abating. The incidents that took place in Mirchpur between 19th and 21st April 2010 serve as yet another grim reminder of “the complete absence of two things in Indian society” as noted by Dr. B.R. Ambedkar when he tabled the final draft of the Constitution of India before the Constituent Assembly on 25th November 1949. One was ‘equality’ and the other, ‘fraternity’.”
7. Death penalty – ‘rarest of the rare’ test not enough
On 31st October 2014, justice Muralidhar wrote in Bharat Singh v State (NCT of Delhi) that there was “was little difficulty as regards the existence of the ‘aggravating circumstances’ i.e. the satisfaction of the ‘crime test’” as the accused and raped and murder a three year old child, but this was not enough to sentence him to death. Justice Muralidhar wrote that another aspect to be considered in such cases is the probability of the accused to be rehabilitated. Consulting a report of a medical board Institute of Human Behaviour and Allied Sciences, the court was “persuaded to conclude that there exists a probability that the Appellant can be reformed and rehabilitated”.
The move beyond the “rarest of the rare” test of Bachan Singh is considered by a progressive step towards the abolition of death penalty in India.