With the collapse of almost every institution that could act as a check on the Union government in recent times, the Delhi High Court’s action over the past few days has been commendable.
On Wednesday, a bench consisting of Justice Dr S Muralidhar and Talwant Singh made sure to pass critical comments against the alarming lapses on the part of Delhi Police when it came to containing hate speech that led to the communal violence in the capital. The bench urged the Delhi Police to file cases on hate speech – especially singling out BJP leader Kapil Mishra, whose incendiary speech has even been referenced by rioters in the midst of violence.
Far from listening to the benches’ recommendations to punish hate speech that led to the violence, Prime Minister Narendra Modi’s government decided to immediately notify the transfer of Justice Muralidhar to another high court.
The transfer decision had been taken per an order by the Supreme Court collegium – the senior-most judges of the top court – to transfer Muralidhar to the Punjab and Haryana High Court on February 12. That order was itself controversial, with many raising questions over the timing and its implications for seniority.
Muralidhar was well known in the Delhi High Court as a judge who delivered “bold” verdicts that took on both government excess and majoritarian forces. He had in the past convicted members of the Uttar Pradesh Provincial Armed Constabulary in the Hashimpura massacre case of 1987 as well as Congress leader Sajjan Kumar in the Delhi anti-Sikh riots of 1984.
Over 2018 and 2019, the Supreme Court collegium had twice discussed recommending his transfer away from Delhi, only to see the idea shot down.
The rushed manner in which the Modi government notified this recommendation – while Muralidhar was in the middle of hearing a crucial case critical of the Modi government’s control of law and order in Delhi – has made things even more controversial.
To set things in context, on an average the Union government takes four months to notify the collegium’s transfer recommendations. In this case, they did it in less than three weeks. And maybe most egregiously, the notification was issued hours after Muralidhar had criticised the Modi government and was slated to take action against hate speech that sparked horrific violence leading to the deaths of 37 in the union capital.
The new bench that took up the case after Muralidhar transfer showed a marked lack of urgency compared to the previous one. It accepted the government’s unusual contention that First Information Reports for Bharatiya Janata Party politician Kapil Mishra’s hate speech should be intentionally delayed since the “situation was not conducive”. The bench then granted the government a leisurely four weeks to file a counter affidavit.
Clearly, then, post-Muralidhar, the Delhi High Court is unwilling to pressure the government to act against those who sparked off communal violence.
Bad to worse
Through the seven-decade long history of the Indian Union, the higher judiciary has always seen significant lapses when holding the government as well as majoritarian forces to account.
From upholding the colonial-era sedition law to backing a religion-inspired ban on cow slaughter (the court farcically argued that “the value of dung is much more than even the famous ‘Kohinoor’ diamond”) and even supporting the worst excesses of the Emergency, the higher judiciary has often been unable to uphold the rights awarded to Indians by the Constitution.
But even held to this low standard, the higher judiciary has seen a dangerous collapse over the past few years, seeming to cave completely to the wishes of the Union government and its ruling party.
This raises a dark question: given the inability of the judiciary to bring the executive to account on even its most egregious lapses, who is the Indian citizen to turn to in case of government tyranny?