Justice Muralidhar Transfer: Breach Of Propriety Or Breach of Convention?

Government propriety has been questioned in the midnight transfer notification of Justice S Muralidhar from Delhi to the Punjab and Haryana High Court on Thursday. Opposition went all guns blazing, connecting the judge’s transfer with his order a day before that slammed Delhi Police for its handling of communal riots in the city. Congress party went into an overdrive, with even Rahul Gandhi tweeting from his foreign break, darkly suggesting the judge would have gone the Loya way if not transferred. Justice Muralidhar had forced a 24-hrs deadline on the Centre – since Delhi Police reports to MHA – to respond to a petition filed by activist Harsh Mander that sought investigation into the causal relationship between the hate speeches of some BJP leaders and ongoing violence had been filed in the Delhi High Court Tuesday. Two of the three videos cited in the petition are at least two months old, belonging to the December 2019 campaign for the Delhi Assembly elections. Solicitor General Tushar Mehta’s suggestion that more time be given as the use of only those three videos would distort the issue of hate-speeches, and that with more such speeches collected, it could be tackled in a more holistic manner, was torpedoed.

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Being a PIL the plea was rostered to come up before the court of Chief Justice DN Patel Wednesday morning. Justice Patel ended up being on leave due to some personal reasons on Wednesday. Rostered at number 36 for the day, ideally the plea would have got relisted on whichever day justice Patel re-joined work, but that’s where some convention-breaking manoeuvres seem to have happened. Counsel for Mander, Colin Gonsalves, took his petition as a mention – a tool for priority hearings – before the court of Justice Muralidhar at 10:30 am, who issued a judicial notice and got it listed before himself at 12:30 pm. The subsequent hearing, which included some tough posers from the judge, is said to be the reason behind the government move that made his February 12 transfer look like a motivated punishment.

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It is settled law that the Chief Justice is the master of the roster, having the prerogative to assign cases to different judges and benches. Massive controversy had broken in January 2018 with four top judges in the Supreme Court holding a press conference and questioning the then CJI Dipak Misra’s absolute authority in allocating work. Following a petition by jurist Shanti Bhushan, a two-judge bench of justice Ashok Bhushan and AK Sikri endorsed the convention of the Chief Justice remaining the master of the roster, overruling the objections of the four rebel brother judges.

If the same convention then applies to the second rung of the top judiciary – the High Courts – is Justice Muralidhar not in breach of it by having transferred to himself the Mander petition? Ideally, Justice Muralidhar would have needed the consent from the court of the Chief Justice to do that. The move of counsel Gonsalves in moving his plea to the court of Justice Muralidhar, who was third in seniority, could be a matter of post haste aimed at a more sympathetic hearing.

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And since we are living in times of understanding chronologies, look at it this way: the Chief Justice returned Wednesday evening and re-listed the Mander petition before himself using his powers as the master of the roster. The law ministry notification asking justice Muralidhar to join his new posting – based on his transfer by the Supreme Court collegium on February 12 – came after that administrative order. So, in any case, Mander’s petition on Thursday would have been heard by the bench of the Chief Justice, and not of justice Muralidhar. So who is the victim here? Go figure.

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