IBAHRI urges President of India to investigate hasty transfer of judge
The International Bar Association’s Human Rights Institute (IBAHRI) has issued an open letter to President Ram Nath Kovind of India, urging him to take action against the hasty decision made in February 2020 to transfer Justice S Muralidhar from the Delhi High Court to the Punjab and Haryana High Court. This ruling was made after the judge criticised the failure of the New Delhi government and police to counter violent protests in the capital.
The letter, jointly signed by IBAHRI Co-Chair, Anne Ramberg Dr jur hc and IBAHRI Vice-Chair, Mark Stephens CBE, states: ‘This unusually prompt transfer…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.’
Justice Muralidhar criticised Delhi police’s response to recent riots in the city and pointed out failures in the reporting of infractions. In particular, he questioned police inaction against leading members of the Bharatiya Janata Party for delivering hate speech and fuelling unrest, as evidenced by videos presented to the judge. On the evening of 26 February, Justice Muralidhar was issued a notification of transfer to another jurisdiction (the Punjab and Haryana High Court) immediately following his comments. The transfer process was initiated on the recommendation of India’s Supreme Court Collegium and finalised with the assent of President Kovind.
The IBAHRI views hastily casting aside an eminent judge as a challenge to the independence of the Indian judiciary. In accordance with Article 2(3) of the International Covenant on Civil and Political Rights, State parties should ensure that ‘any person whose rights or freedoms, as herein recognised, are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity’. Article 10 of the Universal Declaration of Human Rights guarantees entitlement for all to a fair and public hearing by an independent tribunal in the determination of their rights and obligations. Regarding the independence of the judiciary, Article 50 of the Constitution of India directs the State to ‘take steps to separate the judiciary from the executive in the public services of the State.’
In the concluding paragraph of the letter to President Ram Nath Kovind, the IBAHRI ‘calls on His 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.’ They also urge 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.’
Notes to the Editor
- The International Bar Association (IBA), established in 1947, is the world’s leading organisation of international legal practitioners, bar associations and law societies. Through its global membership of individual lawyers, law firms, bar associations and law societies it influences the development of international law reform and shapes the future of the legal profession throughout the world.
The IBA’s administrative office is in London, United Kingdom. Regional offices are located in: São Paulo, Brazil; Seoul, South Korea; and Washington DC, United States, while the International Bar Association’s International Criminal Court and International Criminal Law Programme (ICC & ICL) is managed from an office in The Hague, the Netherlands.
The International Bar Association’s Human Rights Institute (IBAHRI), an autonomous and financially independent entity, 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.
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