Justice Dr. S Muralidhar’s Farewell Speech and Spoke About His Landmark Judgments During 14 Years Of Service In Delhi High Court

New Delhi: 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 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 17th February, 2020, the Chief Justice of India’s letter dated 14th February, 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 1200 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.

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 key word here is fraternity. As Babasaheb Ambedkar put it, without fraternity, “equal 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 acknowledgment 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.

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 organized 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 2nd July, 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.

Now about my transfer and what exactly happened on 26th February, 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 17th February 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 any way, 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 on 20th February quoting “sources in the Supreme Court collegium”, confirming what had been indicated to me a couple of days earlier.

26th February, 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 26th February 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 26th February 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.

Justice Dr S Muralidhar received an astounding farewell from the members of the Delhi High Court Bar Association on Thursday, on the occasion of his transfer to Punjab and Haryana High Court.

The ceremony witnessed an unprecedented turnout of lawyers, and Justice Muralidhar won hearts with his speech punctuated with wit, wisdom and humility.

In this context, let us have a look at some major judgments in which Justice Murlaidhar was a part of during his 14 years of service in Delhi High Court.

1. Decriminalization of homosexuality – Naz Foundation case

The conversation around LGBTQ+ rights gained momentum in the Indian mainstream society following the 2009 judgment of Delhi High Court in Naz Foundation case. Here, a division bench comprising Chief Justice A P Shah and Justice Dr S Muralidhar struck down Section 377 of the Indian Penal Code, which criminalized homosexuality as against the ‘order of nature’. The Court located the rights to dignity and privacy within the right to life and liberty guaranteed by Article 21. Though the judgment was reversed by a 2-judge bench of the Supreme Court in 2013, a 5-judge bench of the SC later struck down Section 377, endorsing the views expressed in Naz Foundation case.

“The most moving moment as a Judge was when on 2nd July 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”.

In February 2018, a Delhi High court bench of Justice Dr. S Muralidhar and Justice I.S. Mehta, in Jaspal Singh Gosain v. CBI, upheld the conviction of seven policemen of UP Police for killing a young man in a ‘fake’ encounter in 2009. The court while observing that the ‘fake encounter’ presented a grim scenario, said that,

“This was a tragic case of the killing of a 20 year old by the Uttarakhand police in a fake encounter. A fake encounter is a form of extra judicial killing which has no place in a legal system governed by the rule of law. It is a manifestation of the impunity with which armed forces, including the police, are prone to act in utter disregard of the rule of law. It also is symbolic of the cynicism with which the police themselves view the efficacy of the criminal justice system. The police, in this perception, are not just the accusers, but the prosecutor, the judge and the executioner”.

In a judgment explaining the first principles of criminal procedure in relation to arrest and remand, a division bench led by Justice Muralidhar quashed the transit warrant issued by a Delhi Magistrate for the arrest of Gautam Navlakha by Maharashtra police in the sensational Bhima Koregaon case.

The Court noted that neither the Magistrate took into account material available with the police to necessitate Navlakha’s arrest nor was Navlakha informed about grounds of his arrest.

These, the court said, were legal requirements which could not be diluted under any circumstance.

“With there being several non-compliances of the mandatory requirement of Article 22(1), Article 22(2) of the Constitution and Section 167 read with Sections 57 and 41(1)(ba) of the CrPC, which are mandatory in nature, it is obvious to this Court that the order passed by the learned CMM on 28th August 2018 granting transit remand to the Petitioner is unsustainable in law. The said order is accordingly hereby set aside,” the bench ordered.

In December 2018, a bench comprising Justice S. Muralidhar and Justice Vinod Goel set aside a lower court order that had acquitted Congress leader Sajjan Kumar of charges in a case related to killing of five persons during the 1984 anti-Sikh riots.

The judgment authored by Justice Muralidhar observed that the riots amounted to ‘crime against humanity’ as understood in international law, and called for legislative changes to deal with such acts separately.

“Neither, “crimes against humanity” nor “genocide‟ is part of our domestic law of crime. This loophole needs to be addressed urgently”, the Court urged.

There has been a familiar pattern of mass killings in Mumbai in 1993, in Gujarat in 2002, in Kandhamal, Odisha in 2008, in Muzaffarnagar in U.P. in 2013 to name a few. Common to these mass crimes were the targeting of minorities and the attacks spearheaded by the dominant political actors being facilitated by the law enforcement agencies”, observed the judgment authored by Justice Muralidhar.

In October 2018, a bench comprising Justices S Muralidhar and Vinod Goel set aside the trial court judgement that had acquitted 16 Provincial Armed Constabulary (PAC) officials in the 1987 Hashimpura mass murder case. The Court convicted all the accused and sentenced them to life imprisonment.

“Family of the victims had to wait 31 years to get justice, and monetary relief cannot compensate their loss”, observed the High Court bench of Justice Muralidhar and Justice Vinod Goel while delivering the judgment.

The Court termed the massacre “targeted killing” of unarmed and defenseless people by the police. The case related to the killing of 35 Muslim men who were abducted by the police from Hashimpura during a communal frenzy which took place in 1987.

The trial court acquitted the accused in 2015 on the ground that identity of the accused could not be established. There were systemic attempts to derail the course of justice and shield the accused. The lapses in investigation and prosecution, whether by design or default, were glaring. The General Diary Registers of PAC and the Truck Running Register, which would have shown the names of the officials who were on PAC duty in the truck on the fateful day in Hashimpura, were withheld by the prosecution from the Court until 2018. They were produced only as additional evidence, that too after a crucial intervention made by the NHRC at the appellate stage. The additional evidence of GD Diary extracts contained the list of PAC personnel and their weapons and the number of the truck on which they left for Hashipura on the fateful day and thus provided the missing link which connected the accused with the crime.

In March 2019, a bench comprising Justices S Muralidhar and Vibhu Bhakru held in a PIL filed by Ajay Maken that the forceful eviction of 5000 slum dwellers at Shankur Basti in Delhi on December 12, 2015 to be illegal. Many of them claimed that they had lived there for two decades.

In the context of Delhi, the Court said that Right To The City(RTTC) acknowledged that slum dwellers contribute to the social and economic life of the city.

“Many of them travel long distances to reach the city to provide services, and many continue to live in deplorable conditions, suffering indignities just to make sure that the rest of the population is able to live a comfortable life. Prioritising the housing needs of such population should be imperative for a state committed to social welfare and to its obligations flowing from the ICESCR and the Indian Constitution”, observed the judgment of the division bench of Justices Muralidhar and Vibhu Bakhru.

“The right to housing is a bundle of rights not limited to a bare shelter over one’s head. It includes the right to livelihood, right to health, right to education and right to food, including right to clean drinking water, sewerage and transport facilities”, expounded the Court.

In July 2019, a division bench of Justices Dr S Muralidhar and Talwant Singh lifted the injunction against generic drug manufacturer Natco Pharma Ltd in a patent case filed by German pharmaceutical giant Bristol-Myers Squibb (BMS).

The case pertained to Regorafenib, which is used to treat colorectal cancer, known to be the sixth most prevalent cancer in India.

In 2010, a division bench of CJ AP Shah and Justice Muralidhar had dismissed the challenge of multinational pharma compnay Bayer Corporation against the decision of Drug Controller General of India to allow Indian company Cipla from manufacturing generic version of Bayer’s cancer drug.

A division bench led by Justice Muralidhar declared that the fixing of the age of superannuation of members of the ranks of Commandant and below in the ITBP, CRPF, BSF and SSB different from those in the ranks above that of the Commandant is violative of Articles 14 and 16 of the Constitution.

A Division bench comprising Justice S.Muraleedhar and Sanjeev Narula held that there appeared to be no justification in discriminating amongst the CAPFs particularly when the retirement age of all members of the CISF and AR is 60 years and whereas the retirement age of those of the rank of Commandant and below in BSF, CRPF, SSB and ITBP is 57 years.

In October 2019, a division bench of Justices S Muralidhar and Talwant Singh interfered with Delhi Judicial Service Examination 2019, after finding that incorrect answers were given for 9 questions in the answer key.

The court also directed the High Court to recompute the results of the candidates by applying the correct answer keys as decided by the bench.

On February 26, an emergency midnight hearing was held at today 12.30 AM at the residence of Justice S Muralidhar to hear a plea to ensure safe passage of victims injured in riots in North Eastern portions of Delhi.

The plea was for directions to ensure safe passage of seriously wounded victims from Al Hind Hospital in Mustafabad, a small hospital lacking facilities, to GTB Hospital in Dilshad Garden.

After the midnight hearing, the Court passed directions to the Delhi police to make necessary arrangements for the evacuation of patients stranded at Mustafabad.

The bench said that it was “primarily concerned with ensuring the safety of the lives of the injured and provide immediate medical attention that they require and for that purpose to ensure the safe passage of the injured victims to the nearest available government hospitals”.

In his speech during the full court reference for his farewell, Justice Muralidhar remarked that “February 26 was the longest working day as a judge”.

Interestingly, the judge also requested that advocates should stop addressing him “Your Lordship” or “My Lord”.