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Sunday, September 27, 2020

Jurists like Justice S Muralidhar affirm values of constitutionalism

At a time when institutional trust is perilously undermined and allegations fly thick and fast, the afternoon with Justice Muralidhar was uplifting as it gave a sense of validation of ourselves as lawyers.

Written by Prashanto Chandra Sen | Updated: March 10, 2020 10:22:45 am
Justice S Muralidhar, farewell speech, Delhi High Court, indian express opinion, indian express news In the more formal proceedings of the Full Court Reference, his speech described the role played by a judge in India’a constitutional courts. (ANI Photo)

Some of the aspects surrounding the farewell of Justice S Muralidhar have no precedent. The serving of the transfer order, which was the genesis of the farewell, close to midnight, was unusual. The specific words of the order directing him to assume charge as judge were downright humiliating. The number of lawyers who attended the farewell in the main lobby of the Delhi High Court was unprecedented too.

Not just the ground floor, the ramp covering the two floors of the High Court was also packed. Muralidhar’s speeches, both in the main lobby as also in the more formal Full Court Reference, exceeded expectations. And there was his sage advice to young lawyers — to never enter court without being fully prepared, even if it is just for the adjournment of a case. He recounted his experience in the Bhopal Gas Tragedy case (the issue being whether interest of the amount awarded to the victims should be given to them) where, after multiple adjournments, and when least expected, the case was taken up in the SC and relief given on that day itself .

In the more formal proceedings of the Full Court Reference, his speech described the role played by a judge in India’a constitutional courts. What Muralidhar termed as “random thoughts” constitute the very essence of the act of judging. He describes it as taking place “in a space that is both mediative and meditative”. He acknowledges the mediative space as constituting the primary function of judging, namely, dispute resolution. The meditative space contains two guiding principles: The Gandhian talisman of the “weakest person” and Ambedkar’s adoption of George Grote’s constitutional morality. He identified these two as guiding his judicial instinct and which he felt would fulfill “the constitutional vision of justice”.

Also read | Justice Muralidhar is considered empathetic, fair, unswerving, and honest to the core

This articulation of the guiding principles of his judicial instinct brought to mind the iconic phrase of legendary US Supreme Court judge Oliver Wendell Holmes Jr, who had remarked that judges are guided by an “inarticulate major premise”. The concept was that, apart from legal precedents and doctrines, judges’ decision making is also influenced by their personal values and predilections. In his articulation of this “inarticulate major premise”, Muralidhar was able to convey the hallmark of the highest traditions of judging by the judge of a constitutional court.

The second important element of his speech was his exposition of what he meant by neutrality. He said: It requires the judge 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 the equality of arms”.

He went on to describe what keeps him going as a judge: Moments when he brings to an end a two or three decade-old case, gets an 80-year-old pensioner relief, long overdue retirement benefits to the legal representatives of a deceased bus conductor or a wrongly dismissed CRPF Jawan, reversing a wrong conviction or a wrong acquittal. “The cry for justice,” he said, “is loud in every roster and in every court”.

Also read | ‘Delhi’s loss, Punjab’s gain’: Lawyers welcome Justice Muralidhar on day of his taking oath

At a time when institutional trust is perilously undermined and allegations fly thick and fast, the afternoon with Justice Muralidhar reminded us that despite everything, as lawyers, while waiting for our turn to argue, we witness many cases which do not attract huge publicity; but which nevertheless are occasions for constitutional values to be discovered, practised and tested. It was an uplifting moment as it gave a sense of validation of ourselves as lawyers. This feeling lingered the next day when there was a second Full Court Reference for the retirement of Justice G S Sistani, another great judge who the Delhi High Court was losing that day, and whose commitment to these values is unassailable.

Ex-CJI Balakrishnan on Muralidhar’s transfer: Govt should have been ‘careful’ in issuing order

This article first appeared in the print edition on March 10, 2020 under the title ‘In them we trust’. The writer is a senior advocate practising in Delhi.

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