Justice Muralidhar on the Distinction Between Neutrality and Impartiality

Justice S. Muralidhar. Photo: Twitter/@neljp

This is the text of the farewell speech delivered by Justice S. Muralidhar in the atrium of the Delhi high court building on March 5. In the speech, the judge, who has been transferred to the Punjab and Haryana high court, speaks about his family (including his pet dog), experiences during his 14-year tenure as a member of the Delhi high court Bench and important verdicts he delivered, such as the judgment decriminalising homosexuality. Justice Muralidhar also touches upon the events that transpired on February 26, when he passed two crucial orders related to the Delhi riots, and the order to transfer him was issued at around midnight.

The chief justice, my colleagues, and all present here.

I had first written out a speech thanking those who made it possible for me to be where I am. That ran into six typed pages. Some of them are here, some elsewhere. They include Amma, my sister and my niece, sisters-in-law, brothers-in-law, aunts, uncles, nephews, nieces, cousins and numerous other relatives and friends and above all, Usha, all of whom have been incredibly close and supportive. To each of them, I wish to say I am deeply grateful for the various ways they have enriched my life and helped me navigate it.

Among those who are not with us and whose lasting influence in my life I gratefully acknowledge are my father Srinivasan, my uncle Viswanaathan, my mother-in-law Indira Ramanathan.

In May 1987, Mr G. Ramaswamy (GR), who was then the ASG [additional soliticor general] of India in the Supreme Court of India took me on as his junior and I moved from Chennai to Delhi. The two-year stint with him was an incredible period of learning. His razor-sharp mind, ready wit and humour, remarkable advocacy skills and solid grounding in the basics of all branches of law helped me learn about the law and the court. I am eternally grateful for that and, not a day passes without recalling him.

Professor Lotika Sarkar, whom we all called ma’am. Usha and I were fortunate that ma’am spent the last four years of her life with us. She was the epitome of an ethical life and continues to be a huge inspiration.

Shortly before the lunch recess on February 17, 2020, the chief justice of India’s letter dated February 14, 2020, communicating the transfer proposal was delivered to me in my chamber. In the early hours of that day, our pet Labrador Sakhi, literally a companion to the entire family who gave unconditional warmth and joy for over 11 years, breathed her last. The reason Sakhi came into our lives was ma’am. Sakhi remained till the last a strong sagely and pure presence.

I can confidently claim to be very close to many of the judges here on the dais. There are judges in the audience and elsewhere in Delhi and India who have helped me in various ways in traversing the difficult path of judgeship. It is only paucity of time that prevents me from naming them. I am grateful to each of them.

Every judge of this court has a mini establishment of over a dozen persons without whom no work can get done. The back up support is by over 1,200 employees of this court. If I have been able to function effectively as a judge of this court, it is because of these people. A big thank you to Monika Wadhwa, Dinesh Nayal, Rajesh Malhotra, Raj Dass ji, Tarun Rana, Devender Singh Mehta, Gopal Prasad, Jagdish, Sanjay Kumar, Mari Muthu, Deepchand, Ram, Tara and my sarathi, Inder. I also thank each and every employee of this court at all levels. I have had numerous law researchers and interns over the years. I thank each one of them as much as I do my current ones Rohini, Avi and Oindrila.

I have to thank the Delhi High Court Bar for accepting me, an advocate on record in the Supreme Court, as one of their very own. I find it hard to describe the unstinting affection I have received from you, old and young, senior and non-senior, over these 14 years. You may not know it, but you have patiently hand held me, guided me across rough terrains and encouraged me to stay the course. I cannot thank you enough.

Delhi high court. Photo: PTI

What I have now to say is for the junior Bar which I find to be, by and large well-informed, articulate and unafraid. I believe in their hands the future of this court’s Bar is secure. This court’s Bar is a kaleidoscope of lawyers who speak several tongues, hailing from different regions: East, North-East, South, Central, West, and North India. The Bench too reflects in some degree this diversity of cultures, languages, food habits and the bonhomie and fraternity that binds all of us. That is the true strength of this court. By and large, the class, community and caste factors have not been allowed to alter this as, I dare to hope, it never will. That is the promise we must make to ourselves. The keyword here is fraternity. As Babasaheb Ambedkar put it, without fraternity, “equality and liberty would be no deeper than coats of paint.”

Over the years, I have realised that it is not enough for lawyers and judges to speak about constitutional values. It is essential to imbibe them. The constitutional values of equality, non-discrimination, dignity, prohibition of untouchability, inclusivity, and plurality have to be practiced continuously at both a personal and professional level. How the Bar, and the Bench, treat both lawyers and clients, and employees not just of the court but of the bar associations, shops and kiosks in the court complex of different languages, castes, classes, religious identities, genders, and sexual identities will be a measure of how democratic the court space is.

Arming oneself with law and being thoroughly professional in what one does in the court and outside earns the respect of our peers and the Bench. I find it useful as a judge if pleadings contain facts stated simply and clearly but without embellishments and adjectives. Deep reading of case law and statutes helps formulate propositions of law. When the lawyer first herself drafts and then argues the petition, the articulation is uncluttered. Orientation has a role to play. I owe my human rights and law and poverty orientation largely to the years of work with the Supreme Court Legal Services Committee. It was professionally satisfying.

Some random thoughts: The act of judging takes place in a space that is both mediative and meditative. The former is in acknowledgement of the primary function of judging: dispute resolution. The latter, i.e., the meditative space in constitutional court adjudication has, at least for me, two guiding principles. The Gandhian talisman of the weakest person and Ambedkar’s adoption of Grote’s constitutional morality. If in this meditative judicial space, I allow my judicial instinct to be so guided, the result, I believe, would answer the constitutional vision of justice. In this vision, Courts are not merely places where law is practised and produced. They are also spaces where the constitutional values are tested.

I don’t subscribe to the view that Judges perform a divine function. To me, jettisoning the prefix Lordship and even ‘Hon’ble’ is not a fetish. It is an acknowledgement of how mortal, temporal, and, if I may venture to add, fallible we are.

There is a distinction between neutrality and impartiality. They are not antithetical. Impartiality is non-compromisable for a judge. It is an essential attribute. On neutrality, the Constitution, in my view, requires the judge at all levels to be able to discern the weak from the strong litigant in terms of their capacities to access justice and lean on the side of the vulnerable in order to attempt to achieve equality of arms.

Judging is, without question, not an easy task. It involves a daily onslaught of negative emotions brought to the court by anxious, and often frustrated, litigants seeking justice. It is possible that many of the physical ailments of judges are on account of having to withstand the negative energies. Maintaining equanimity and calm through the day, case after case, is indeed a big challenge.

Lawyers at Justice Muralidhar’s farewell at Delhi high court. Photo: Twitter

Judging can be enlightening. It demands that you delve deep into the minds and lives of people across a wide cross-section of society, sometimes very different from your own. It can also be deeply humbling.

Someone asked me not long ago, after nearly 14 years on the Bench, “things must be much clearer, in black and white?” I found I could not agree. The colour that the judge of many years best identifies with is grey. I am often asked, “Are judges under pressure?” My answer to that is: Not unless they acknowledge it.

How different is the court since I joined the Bench 14 years ago? The Bench strength has not particularly increased. It crossed 40 briefly on one or two occasions. We’ll be down to 33 in a few days. Pendency has inevitably increased. The buildings have expanded. Paperless courts are an integral feature. No paper causelists. A state-of-the-art Block C where with the curtains lifted justice can be ‘seen’ to be done. A younger, vibrant and more diverse Bar. And an exciting variety of work which makes demands on the judges’ mental agility. Work-wise, more attention is needed on scientific management of caseloads, of space, of litigant friendly procedures, and creative approaches to court architecture. There is much scope for enhancing transparency, accountability and access to justice. So too in the area of legal education and training.

There are some needs common to both lawyers and judges. Intellectual stimulus is one. It is only after becoming a judge that you begin to realise that there is even less time than as a lawyer, for doing serious reading of both legal and non-legal literature. Having a forum to meet, discuss and exchange ideas is helpful both to judges and lawyers. Fortunately, the judicial academies provide that platform for judges to some extent. Till a few years ago, acceding to the request of some of us, the NJA [National Judicial Academy] organised a meet on the high courts’ contribution to the development of the law. For lawyers too, study circles and discussion groups in a somewhat informal setting are useful. The Friday Meeting Group that I initiated in 1998 in my lawyer days in the Supreme Court has recently been revived and is being admirably run by my friend Seshagiri Rao.

Films reflecting real events, having relevance to issues confronting the legal system, can form powerful tools of communication. This is my experience from screening films in my chamber for colleagues as a lawyer, and here in the high court judges’ lounge for my colleagues and their LRs. I have tried to repeat that practice for panel lawyers of the High Court Legal Services Committee. The use of multi-media, audio-visual material, is equally an effective means of teaching, as I found, when I taught credit courses in two national law schools in the past few years.

The future of law, the legal profession and courts is among the many subjects that I am interested in. I was part of a five Member Committee of High Court Judges that examined the issue of collection, preservation, retrieval and proof of electronic evidence. We submitted a report in December 2018. That experience alerted us to the urgent need for the Courts to address this issue.

What keeps me going as a judge? Those moments when I can bring to an end a two or three-decade-old case, get an 80-year-old pensioner relief, long overdue retiral benefits to the legal representatives of a deceased bus conductor or wrongly dismissed CRPF jawan, reverse a wrong conviction or a wrong acquittal. The cry for justice is loud in every roster and in every court. What I felt every day as a Judge, and still feel, is that it never seems enough.

The most moving moment as a judge was in this very court sitting where I am today when on July 2, 2009, Chief Justice A.P. Shah and I delivered our judgment in Naz Foundation. Even as we held that consensual same sex between adults in private was not a crime, the relief that swept through the courtroom amongst those waiting to hear the verdict was palpable. Many broke down right here in front of us. At that moment, we knew that something irreversible had happened.

The Supreme Court's right to privacy judgment could pave the way for the decriminalisation of homosexuality. Credit: Reuters

The Naz Foundation judgment decriminalised homosexuality. Photo: Reuters

Now about my transfer and what exactly happened on February 26, 2020. There has been some confusion about what transpired, and I thought it should be cleared.

What the five-member collegium sends to the Central government is a recommendation that a judge of a high court should be transferred to another high court. The judge concerned is not at this stage under orders of transfer. That happens only when the recommendation of the collegium fructifies into a notification.

In my case, the collegium’s decision was communicated to me by the CJI on February 17 by a letter which sought my response. I acknowledged receipt of the letter. I was then asked to clarify what I meant. As I saw it, if I was going to be transferred from the Delhi high court anyway, I was fine with moving to the Punjab and Haryana high court. I, therefore, clarified to the CJI that I did not object to the proposal. An explanation for my transfer reached the press via Maneesh Chhibber’s article in The Print on February 20 quoting “sources in the Supreme Court collegium”, confirming what had been indicated to me a couple of days earlier.

February 26, 2020 was perhaps the longest working day of my life as a judge of this court. It began at 12:30 am with a sitting at my residence with Justice Bhambani, under the orders of Justice Sistani, to deal with a PIL filed by Rahul Roy seeking safe passage for ambulances carrying the injured riot victims. When I received a call at my residence from the lawyer for the petitioner, I first called Justice Sistani to ask what should be done, knowing that the chief justice was on leave. Justice Sistani explained that he too was officially on leave the whole of February 26 and that I should take up the matter. This fact is stated in the order passed by the bench after the hearing. Later that day, upon urgent mentioning, as the de facto CJ’s Bench, Justice Talwant Singh and I took up another fresh PIL on the CJ’s Board seeking registration of FIRs for hate speeches. After the orders passed on that day, the above two PILs remained on the CJ’s Board.

The notification issued close to midnight of February 26 did two things. First, it transferred me to the P&H high court. Second, it appointed me to a position from where I can never be transferred, or removed and in which I shall always be proud to remain. A former judge of arguably the best high court in the country. The high court of Delhi.