The picture of hundreds of lawyers lining up in the atrium of the Delhi High Court building on March 5 to bid farewell to Justice S. Muralidhar, who was transferred to the Punjab and Haryana High Court, said it all. Never before had the High Court witnessed such a touching farewell during the full court reference held in honour of a judge under transfer to another High Court. Justice Muralidhar revealed that he had consented to his transfer and communicated that to the Supreme Court’s Collegium, which had recommended it on February 12, but left the answer to the question why the Centre issued his transfer orders just before midnight on February 26 to be inferred from the events that preceded it.
Justice Muralidhar described February 26 as “perhaps the longest working day of his life as a judge of this [Delhi] High Court”. In the early hours of that day, he and Justice Anup Bhambhani held an unusual hearing at the former’s residence after receiving a request over telephone from the advocate Rahul Roy. Justice Muralidhar, who was the third senior-most judge of the Delhi High Court, had to hear the matter because both Chief Justice D.N. Patel and the second senior-most judge, Justice G.S. Sistani, were on leave. Justice Sistani asked Justice Muralidhar to hear the matter in view of its urgency. Dr Anwar of Al Hind Hospital in New Mustafabad, an area in North East Delhi that was affected by the riots, had reported over speaker phone that two people were dead and 22 people who had been admitted to hospital were critically injured. He said that the hospital required police help for ambulances to have safe passage to and from the hospital in view of the tense situation prevailing then, since the hospital lacked the facilities to treat the injured. Anwar added that he had tried in vain to seek police help from 4 p.m. on February 25.
Justices Muralidhar and Bhambhani responded to Rahul Roy’s plea by hearing the matter at 12:30 a.m. on February 26 in the presence of Alok Kumar, Joint Commissioner of Police; Rajesh Deo, Deputy Commissioner of Police (DCP, Crime); and Sanjoy Ghose, standing counsel for the government of the National Capital Territory Delhi and the Delhi Police.
The bench directed the Delhi Police to ensure safe passage to the injured victims, by deploying all the resources at its command, to the nearest government hospitals for immediate emergency treatment.
It then decided to hear the matter again at 2:15 p.m. the following day to seek a status report of compliance with its order issued in the wee hours.
The Muralidhar-Talwant Singh bench
Meanwhile, another bench presided over by Justices Muralidhar and including Talwant Singh decided to hear at 12:30 p.m. a petition filed by the human rights activist Harsh Mander seeking directions to the Delhi Police to register first information reports (FIRs) against four Bharatiya Janata Party (BJP) leaders who allegedly committed the criminal offence of delivering hate speeches that triggered the riots. The leaders were Union Minister of State for Finance Anurag Thakur; BJP Member of Parliament from West Delhi Lok Sabha constituency Pravesh Verma; former member of the Delhi Legislative Assembly from Karawal Nagar Kapil Mishra (who defected from the Aam Aadmi Party to the BJP); and the BJP MLA from Laxmi Nagar, Abhay Verma.
The Muralidhar-Talwant Singh bench viewed four video clips involving these leaders. The first clip showed the alleged hate speech delivered by Anurag Thakur on January 21. It was alleged that Thakur’s “ desh ke gaddaron ko goli maro” slogan incited mobs to unleash violence against members of the minority community. The second clip showed an interview given by Pravesh Verma to a television news channel. The third was a video clip of the speech delivered by Kapil Mishra on February 23 in the presence of the DCP, North East Delhi, Ved Prakash Surya. Mishra warned that his followers would be emboldened to vacate the protesters against the Citizenship (Amendment) Act (CAA) if the police did not do so, after United States President Donald Trump, on a two-day visit to India, left. The fourth showed Abhay Verma repeating on February 25 the very slogan that features in the first clip of Anurag Thakur. The bench ensured that both Solicitor General Tushar Mehta, who represented the Delhi Police, and the Special Commissioner of Delhi Police, Praveer Ranjan, also viewed the clips.
The bench recorded Mehta’s submission that the time was not “appropriate” or “conducive” to registering FIRs on the basis of these clips. Mehta referred to other video clips, which according to him, were “inflammatory” and which, according to him, would equally require action by the police at a “conducive” time. Asked by the bench to elaborate when this “conducive time” was, when Delhi was burning, Mehta pleaded his inability to do so at that stage.
The bench stated in its order:
“In light of what has been witnessed in the capital city in the last three days, with the number of deaths in the riots having risen to 18 (officially), with a large number of persons being injured, some critically, with the unabated arson and looting of properties and incidents of violence, stone pelting, the Court posed specific queries to Mr Praveer Ranjan, Special CP, about what the consequences would be with every day’s delay in registering an FIR for each of the speeches played in court which ex facie appear to be answering the description of the crime of hate speech in terms of Section 153A (a) and (b) IPC [Indian Penal Code], both of which are cognisable and non-bailable. In addition to these clips the learned SG has referred to certain other clips which he himself terms as ‘inflammatory’ and in respect of which no FIR has been registered. The court has also impressed upon Mr Ranjan that he should convey to the CP the ‘anguish’ of the court regarding the consequences of failure to register FIRs in an atmosphere like the present one.”
The bench made it clear that an FIR was first and foremost an acknowledgement of the commission of a crime and that the police should be guided by the 2013 judgment of the Constitution Bench of the Supreme Court in Lalita Kumari vs Government of Uttar Pradesh . The bench asked the Delhi Police to seriously consider the consequences of every day’s delay in registering FIRs on the basis of not only the video clips that had been played in court, but all other video clips of speeches/actions by anyone, whosoever it may be, which disclosed ex facie the commission of an offence, bearing in mind that the rule of law was supreme and that no one was above the law. On the assurance from Ranjan that he and the Commissioner of Police would view all relevant videos that allegedly carried hate speeches and take a conscious decision the following day, the bench adjourned the matter to be heard again at 2:15 p.m. on February 27.
A Constitution Bench of the Supreme Court had held in Lalitha Kumari vs Government of Uttar Pradesh that registration of an FIR was mandatory under Section 154 of the Code of Criminal Procedure (CrPC) if the information disclosed commission of a cognisable offence and no preliminary inquiry was permissible in such a situation. The bench had laid down in that case that action should be taken against erring officials who did not register an FIR if information received by him disclosed a cognizable offence.
The Muralidhar-Bhambhani bench
At 2:15 p.m on February 26, the Muralidhar-Bhambhani bench, which had heard Al Hind Hospital’s humanitarian crisis at midnight, assembled again to review compliance with its earlier order. The court was relieved to note that the injured victims could reach government hospitals and receive timely treatment following its order. The order had a positive effect in helping rescue many more injured victims and ensuring treatment for them, the petitioner’s counsel, Suroor Mander, informed the court. The court appreciated the promptness with which the Delhi Police responded to the distress call of the petitioner and thereby tackled a critical situation with the cooperation of everyone. The bench expressed its confidence that the Delhi Police would continue to respond with the same alacrity to any situation that might arise in future.
The bench asked the police to ensure the burial/cremation of the bodies of victims of the riots with utmost dignity, and necessary security. It also recorded the Delhi Police’s submission that it would ensure that an adequate number of help desks and helplines would be set up and publicise them for the benefit of the victims with the assistance of civil defence volunteers and home guards. The bench then directed the police to ensure safe passage for fire engines and ambulances in the riot-hit areas and requisition of an adequate number of ambulances from private hospitals and charitable organisations.
It also directed the Delhi government to facilitate victims to gain access to makeshift shelters without too much documentation and to ensure availability of basic amenities, including bedding, blankets, medicines, food, sanitation and clean drinking water. The bench added that the existing users of the shelters should not be displaced to accommodate the riots victims and that additional shelters should be constructed whereever necessary.
It also appointed Zubeda Begum, advocate, as amicus curiae to act as a nodal officer of the court to coordinate between the victims and the various agencies to ensure that prompt action was taken and help was provided where needed. It sought to ensure access to her by directing adequate publicity in the print, electronic and social media to her dedicated mobile number, and to give her the liberty to take the staff she might require from the Delhi government.
The bench directed the various Secretaries of the District Legal Services Authorities (DLSAs) to ensure that their helplines worked 24x7 for the following two weeks, with a roster being prepared of advocates who would immediately attend such calls and cater to the legal aid requirements of the victims. “The telephone numbers of the DLSAs will also be given adequate publicity in the print, electronic and social media,” it held in its order.
Lastly, the bench asked the Director, Institute of Human Behaviour and Allied Sciences, to provide sufficient number of qualified professionals to cater to the riot victims suffering from post-traumatic stress disorder and other needs that might arise. It issued these directions after orally observing that it could not let another 1984 situation to come up, recalling the anti-Sikh riots in city that year following the assassination of Prime Minister Indria Gandhi, when the police actively colluded with rioters.
Abdication of responsibility
With the abrupt transfer of Justice Muralidhar before the midnight of February 26, it was no longer possible for him to monitor the cases that he started hearing to ensure accountability for the Delhi riots. On February 27, the hate speech case involving the four BJP leaders was listed before the bench of Chief Justice D.N. Patel and Justice C. Hari Shankar, which did not show the same degree of seriousness as shown by the bench presided by Justice Muralidhar. Accepting the plea of the Delhi Police that the time was not appropriate to file FIRs, the new bench gave the police a month to respond to the petition seeking FIRs, and posted the matter for hearing on April 13. The bench showed no urgency in the matter, although it was brought to its notice that 48 FIRs had already been registered following the riots and therefore the excuse that the present time was not appropriate was least convincing. Its leniency surprised observers because FIR is only the initiation of an inquiry and does not require immediate arrest of the accused.
On March 6, however, the Patel-Hari Shankar bench heard the matter again, following directions from the Supreme Court, which found the grant of four weeks to the Delhi Police to explain non-registration of FIRs in the hate speech matter unjustified.
Supreme Court’s record
The Delhi High Court’s timely intervention under Justice Muralidhar to ensure accountability for the Delhi riots was in contrast to the observation of the Chief Justice of India (CJI), S.A. Bobde, on March 3 that the courts were ill-equipped to handle riot situations and take action against those who incited and provoked riots, a function, which he said, rested with the police and other law-enforcing agencies. The CJI made the remarks while hearing a matter on the Delhi riots with Justices B.R. Gavai and Surya Kant.
The human rights advocate Colin Gonsalves had sought an urgent hearing on a petition by 10 riot victims seeking registration of FIRs against Anurag Thakur, Kapil Mishra, Parvesh Verma and Aditya Verma and their arrest. The victims also sought the setting up of a special investigation team comprising police officers from outside Delhi to probe the riots, and to ensure security to those protesting against the CAA. The CJI’s remark that “we are aware of our limitations” dampened the petitioners’ hopes of securing timely justice from the apex court.
Meanwhile, the Supreme Court’s notice to Harsh Mander for a speech he made in December 2019, wherein he expressed his lack of confidence in courts, surprised observers. In the same speech, Mander exhorted his audience to fight against the CAA, seen as discriminatory and divisive, with non-violence and love. Mander’s speech has to be understood in the broader context, as his appeal was to exercise the right to protest, guaranteed under the Constitution, even as institutions such as the Supreme Court tended to be pusillanimous. The Delhi Police alleged that Mander instigated violence by his speech, which to many was bizarre and absurd, given its reluctance to file FIRs against the four BJP leaders whose inflammatory speeches had led to the riots in the first place. The CJI’s refusal to hear Mander on the riot-related cases before the court until it dealt with his December 2019 speech, therefore, appeared to add insult to injury.
The Supreme Court’s abdication of its responsibility in the Delhi riots cases comes at a time when one of its judges openly expressed his praise for Prime Minister Narendra Modi. Justice Arun Mishra, the third senior-most judge in the Supreme Court, while delivering his vote of thanks at the International Judicial Conference in New Delhi, in the presence of other judges of the Supreme Court, described Modi as an “internationally acclaimed visionary”, and a “versatile genius” who thinks “globally and acts locally”.
Justice Mishra’s open praise for Modi, when the Centre is a major litigant before the Supreme Court in many cases, caused acute institutional embarrassment. The Supreme Court Bar Association (SCBA) and the Bombay Bar Association passed resolutions condemning the obsequious remarks of a sitting judge of the Supreme Court as improper and unnecessary. Although the SCBA’s resolution was disputed within by members other than its president, Dushyant Dave, many lawyers expressed unease with Justice Mishra’s comments, which to them were close to sycophancy. With lawyers openly acknowledging that Justice Mishra’s comments shook their confidence and that of the public in the independence and integrity of the higher judiciary, the Supreme Court may well need to introspect rather than go after activists such as Harsh Mander who act as a bridge between the court and civil society.
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