International lawyers’ body appeals to President Kovind to probe into hasty transfer of Justice Muralidhar

International Bar Association’s Human Rights Institute (IBAHRI) has written an open letter to The President of India Ram Nath Kovind to urgently look into the hurried decision to transfer Justice S Muralidhar from Delhi High Court to the Punjab and Haryana High Court. The decision was made in February 2020, immediately after Justice Muralidhar criticised the Delhi government and Delhi police for their failure to check violence in Delhi. Justice Muralidhar had taken the police to task for failing to file FIRs against the alleged hate speeches by the BJP leaders. The same night, that is on the night of February 26, Justice Muralidhar was transferred.

The open letter by the IBAHRI reads, ‘This unusually prompt transfer…at a time of alarming social unrest raises concerns of the potential undermining of the independence of the judiciary in India. The right of the judiciary to hold the government to account is fundamental to the rule of law, and there should be no reprimand for a judge using his independent voice.’

Calling this hurried transfer “a challenge to the independence of the Indian judiciary”, the letter urges President Kovind to assess the impartiality of the decision to transfer Justice Muralidhar and ensure that no improper influence dictated the outcome of this process, and thus to guarantee the independence of the judiciary and the integrity of the Constitution.’

They have also appealed to the President to ‘consider the resolution of the Delhi High Court Bar Association countering this transfer and consider their concerns about the impact this transfer will have on the fair delivery of justice.’

The letter has been signed by IBAHRI Co-Chair, Anne Ramberg and IBAHRI Vice-Chair, Mark Stephens.

The International Bar Association, which has its administrative office in London was founded in 1947 and is now a leading organisation of international legal practitioners, bar associations and law societies. With its members spread across the world, it aims at influencing the development of international law reform and shapes the future of the legal profession throughout the world.

The International Bar Association’s Human Rights Institute works to promote, protect and enforce human rights under a just rule of law, and to preserve the independence of the judiciary and the legal profession worldwide. It is an autonomous and financially independent organisation.

You can read the full text of the letter here:

His Excellency Shri Ram Nath Kovind

President of India

Rashtrapati Bhavan, President’s Estate

New Delhi,

Delhi, 110004

India

11 March 2020

Letter to His Excellency, Shri Ram Nath Kovind, President of India, from the

International Bar Association’s Human Rights Institute

Your Excellency,

We are writing to you on behalf of the International Bar Association’s Human Rights Institute (IBAHRI) to express our concern over the transfer of Justice S Muralidhar from the Delhi High Court to the Punjab and Haryana High Court, seemingly in response to his expression of ‘anguish’ over the failure of the New Delhi police to counter violence between Muslims and Hindus.

The International Bar Association, established in 1947, is the world’s leading organisation of international legal practitioners, bar associations and law societies. It has a membership of over 80,000 individual lawyers, and 190 bar associations and law societies, spanning over 160 countries. The IBAHRI, an autonomous and financially independent entity, works with the global legal community to promote and protect human rights and the independence of the legal profession worldwide.

The IBAHRI has been informed that Justice Muralidhar was notified of his transfer on the very evening that followed his criticism of the Delhi Police. It has been reported that Justice Muralidhar asked that the Delhi Police ensure the safety of all those injured in the violence at a hearing at his residence on Tuesday 25 February. On 26 February, he expressed ‘anguish’ over the Delhi Police’s failures to counter violence whilst hearing the case in court and to register ‘First Information Reports’ against political agitators spreading hate speech with the intent to fuel social unrest. In the immediate aftermath of this hearing and comments, Justice Muralidhar was issued a notification of transfer from the Government of India on the evening of 26 February.

It has also been reported to the IBAHRI that although Justice Muralidhar reportedly gave prior consent to this transfer on 12 February 2020, he was not given appropriate advance notice. This unusually prompt transfer of a senior judge critical of police intervention at a time of alarming social unrest, raises concerns of potential undermining of the independence of the judiciary in India. The right of the judiciary to hold the government to account is fundamental to the rule of law, and there should be no reprimand for a judge using his independent voice.

Judicial independence is a vital component of democratic society and a foundational pillar of the rule of law. If it is established that the decision to hastily finalise the transfer of Justice Muralidhar was in fact influenced by improper motivations, this would provide evidence of transgressions of India’s domestic and international law obligations. The IBAHRI respectfully wishes to draw your attention to said provisions.

The Preamble of the Universal Declaration of Human Rights states that ‘it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.’ Furthermore, Article 10 guarantees entitlement for all, in full equality, to a fair and public hearing by an independent and impartial tribunal in the determination of their rights and obligations, and of any criminal charge against them.

Article 2(3) of the International Covenant on Civil and Political Rights states that State parties should ensure that ‘any person whose rights or freedoms, as herein recognised, are violated shallhave an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.’ Article 14(1) of the Covenant provides for equal entitlement by all to a fair and public hearing by a competent, independent and impartial tribunal, established by law in the determination of any criminal charges against them or of their rights and obligations in a suit at law.

Article 14 of the Constitution of India states that equality before the law and the equal protection of law within the territory of India shall not be denied to any person. Article 50 directs the state to ‘take steps to separate the judiciary from the executive in the public services of the State.’

This year also marks the 30th anniversary of the United Nations’ Basic Principles on the Independence of the Judiciary, which require judicial independence to be guaranteed by the State.

Principle 4 dictates that there must be no inappropriate or unwarranted interference with the judicial process. In this important year of celebrating its anniversary, it is essential to consider the importance of these Principles for the protection of the judiciary.

In light of the above, the IBAHRI calls on your Excellency, as protector of the Constitution, to assess the impartiality of the decision to transfer Justice Muralidhar and ensure that no improper influence dictated the outcome of this process, and thus to guarantee the independence of the judiciary and the integrity of the Constitution. We also urge you to consider the resolution of the Delhi High Court Bar Association countering this transfer and consider their concerns about the impact this transfer will have on the fair delivery of justice.