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"The Supreme Court has to be deeply conscious of an important role that it has been assigned under our Constitution which is to be a counter-majoritarian institution, not anti-majoritarian," said Justice S Muralidhar, former judge of the Orissa High Court.
Justice Muralidhar spoke with The Quint at the 17th edition of the Jaipur Literature Festival held from 1-5 February 2024.
Read the edited excerpts below.
In cases like the Bilkis Bano judgment, are the lines between the judiciary and the executive blurred when a state grants remission to convicts?
There are clear domains within which the executive and the judiciary operate in the area of remissions. But this much is certain that an order granting remission is certainly amenable to judicial review.
That is what was the issue here – whether it’s amenable to judicial review, whether the executive had all the facts before it before it took that decision, and how it went about it.
There are two things – one is the decision-making process and the other is the decision itself. So, the scope of interference by the judiciary in acts of the executive granting remissions and pardons is fairly limited, but definite.
There are many cases where hearings are delayed time and time again, with undertrials languishing in the prisons. Political prisoner Umar Khalid's bail pleas have gone unheard multiple times now. What are your thoughts on this?
These are matters of concern because you must have some predictability of how long it will take to hear and dispose of a bail application.
But there could be other aspects to the case that you may not be privy to, and only people involved in handling the case will be aware of, and there could be a lot of strategising around court hearings.
All said and done, I think there should be definite time limits within which bail applications should be disposed of at each level of the judiciary – whether it's the trial court, the High Court, or the Supreme Court.
What is your take on the 'bulldozer justice' that we are increasingly seeing in many states?
I think it’s a no-brainer. It’s an unacceptable proposition that without notice and without a hearing you’ll just demolish a person’s house. There must be a provision law that enables you to do that.
Just because you participated in a protest against the government, does not mean your house will get demolished.
There is a whole legal procedure. Ultimately much of justice is following the procedure. If there is a violation of that very basic procedure, there is clear miscarriage of justice.
I don’t think our constitution, the laws, or our system of rule of law can tolerate this kind of 'bulldozer justice'. It’s simply unacceptable in our scheme of things.
The Chief Justice of India has now been removed from the selection panel of the Chief Election Commissioner. What are your views on this?
Legislating by the court is something that we see often in India. One of the early instances was in the case of sexual harassment at the workplace. The Supreme Court came up with a set of guidelines and said that these guidelines will hold till such time that Parliament passes a law.
It is a kind of legislation by the court that very rarely happens in judiciaries outside of India.
But because there has been no law on the subject and the need is urgent to address the problem, the court came up with this approach.
Likewise, in the election commission appointments, the court says that this will be the arrangement till such time Parliament makes a law. Now the Parliament has made that law.
The law will have to be tested. There is always an issue of jurisdiction that is the Parliament’s domain and the judiciary’s domain, and whether one can take on the other without violating the rule of law framework.
Do you think people are losing faith in the judiciary? What can be done to restore this faith?
If you look at the number of cases being instituted in our courts year after year, it's an increasing trend. It actually falsifies the claim that people are losing faith in the courts. They wouldn’t come back to the courts for more cases.
What is it that you think India's judiciary needs going ahead, 75 years after independence?
The Supreme Court has to be deeply conscious of an important role that it has been assigned under our Constitution which is to be a counter-majoritarian institution, not anti-majoritarian.
The court is here to uphold the rule of law and justice and it can’t be swayed by what a majoritarian opinion might be.
Even though a court may be unpopular, it is expected to perform this role of being a counter-majoritarian institution and to stand up when it perceives injustice.
I think the Supreme Court should remind itself time and again. Whenever it has done that, it has come in for a great amount of praise. Whenever it has failed, it has come in for criticism.
It’s been an uneven record. There is still hope that the Supreme Court might regain its principal role as a counter-majoritarian institution.
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