After a hearing on Wednesday, 26 February, which saw some powerful exchanges between him and Solicitor General Tushar Mehta, Justice S Muralidhar will no longer be hearing the petition filed by Harsh Mander, which has asked for FIRs to be registered against three BJP leaders whose provocative speeches are alleged to have played a role in the ongoing violence in Delhi.
While Justices Muralidhar and Talwant Singh had orally said the case was to be listed before them again at 2:15 pm on Thursday, 27 February, the new causelist shows that the matter has been listed before Delhi High Court Chief Justice DN Patel, instead of them.
The reversion of the case to the chief justice’s court appears to be in accordance with procedure, several advocates like Gautam Bhatia have pointed out on social media. Justice Muralidhar heard the case in place of the chief justice because of its urgency, but the case was not transferred to his court.
It technically remains listed before the chief justice as a result, especially as the text of the court order on Wednesday simply says “List on” rather than mentioning which court it should be placed before.
Mander’s petition was originally scheduled to be heard by Chief Justice DN Patel on an urgent basis on Wednesday. However, he was not present in court for the day, and nor was the next senior-most judge, Justice GS Sistani.
As a result, Mander’s lawyer, senior advocate Colin Gonsalves, mentioned the matter before Justice Muralidhar on Wednesday morning, as he was the most senior judge of the court present.
As the petition had been marked as urgent, Justice Muralidhar agreed to hear it, and issued notice to the Delhi authorities.
The matter was listed for 12:30 pm, and what followed was a remarkable hearing, where he and Justice Talwant Singh asked tough questions of the Solicitor General and the Delhi Police.
Failure of Police to Assess Provocative Videos Called Out
The first instance of this came after Solicitor General Tushar Mehta argued that there was no urgent need to hear the petition, especially its request for registration of FIRs against BJP leaders Kapil Mishra, Parvesh Verma and Anurag Thakur, for their now notorious inflammatory speeches.
Mehta said he had not seen the videos of the controversial speeches, and to the judges’ surprise, the DCP (Crime Branch) Rajesh Deo, said he had not either.
“Are you saying even the Commissioner of Police has not seen the video?” the judges asked incredulously. Justice Muralidhar said that he was “amazed at the state of affairs of the Delhi Police” and ordered the video to be played for the police officers and the Solicitor General immediately in court.
Following this, the judges gave Mehta and the police till 2:30 pm to take a view on whether Mishra’s speech was provocative and warranted the registration of an FIR.
‘Anguish, not Anger’
After the matter resumed, Mander’s lawyer Colin Gonsalves presented arguments on why the court should order FIRs against the BJP leaders.
The Solicitor General then cried foul about Mander’s petition, asking how he had selected just these three supposedly provocative speeches. He said there were many inflammatory speeches made by other people as well, which also disclosed cognisable offences, and so Mander needed to explain why he had only singled out these petitions.
“What you are saying shows the police in even worse light,” Justice Muralidhar pointed out. “You are saying the police not only failed to take action in these three clips but many more clips as well!”
Mehta responded that the police was considering what to do, and that an FIR would be registered “at an appropriate stage.” To this, Justice Muralidhar asked “What is the appropriate stage? After the city has burnt down?”
He said that the court had a duty to protect the life and liberty of citizens., and that “as a constitutional court, we cannot be blind.” This was why, he argued, the court needed to go into the question of whether the FIRs should be registered or not, given the loss of lives in Delhi. “How many more lives must be lost?”
Mehta reiterated that the police was looking into it all, and could register the FIR when the situation was ‘conducive’ to do so.
“If you fail to take action, that conducive situation will not emerge,” Justice Muralidhar countered. In response to Mehta’s protestations that the judge was getting angry with him, he replied that the court was not demonstrating anger but anguish. “I hope this anguish is acknowledged, Mr Mehta,” he added.
“We do not need a repeat of 1984,” the judge asserted, reiterating a sentiment he’d expressed at the previous emergency services case as well.
Following a brief interaction with DCP (Crime Branch) Rajesh Deo over the FIRs already registered in relation to the Delhi violence, the court then asked them to take the advice of Solicitor General Mehta and make a “conscious decision” about why they should or should not register cases against the BJP leaders and any others who had made inflammatory speeches.
It is unclear now, however, whether Chief Justice Patel will ask for compliance with the directions of Justice Muralidhar and Justice Talwant Singh, or whether he will hear arguments afresh.
Justice Muralidhar’s Transfer Notified
Hours after the proceedings were completed, the Ministry of Law and Justice issued a notification for Justice Muralidhar’s transfer from the Delhi High Court to the Punjab & Haryana High Court.
The President approved the transfer on 26 February, which had been recommended by the Supreme Court Collegium on 12 February. When the Collegium had published its resolution recommending the transfer, this caused some controversy.
The Delhi High Court Bar Association condemned the decision of the Collegium, on the grounds that it was “not only detrimental to our noble Institution but also tend(s) to erode and dislodge the faith of the common litigant in the justice dispensation system.”
As Justice Muralidhar will turn 59 this year, it was expected that because of his seniority, any transfer to a different high court would be as the chief justice there – but that is not what the Collegium has recommended.
The DHCBA warned that transfers of this sort could negatively effect “free and fair delivery of justice” by judges of the high courts, leading to a dangerous situation for judiciary.
Justice Muralidhar is perhaps best known for ruling (along with Justice AP Shah) that Section 377 of the IPC was unconstitutional in the Naz Foundation case back in 2009, a decision that was cited appreciatively by the Supreme Court when it finally held the same in 2018.
He is also known for his strong judgments against communal violence and invasion of civil liberties. He has authored judgments which include convicting the 16 UP PAC constables for the 1986 Hashimpura mass killing. He also led the bench that convicted the former Congress MP Sajjan Kumar for his role in the 1984 anti-Sikh riots.
As an advocate, he was lauded for his pro bono representation of victims of the Bhopal Gas Tragedy.
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