Interview: "Who will make up for the lost years?" Justice Muralidhar on bail crisis and prolonged petention
Justice S. Muralidhar is a retired judge and former Chief Justice of the Orissa High Court. He now practices law as a Senior Advocate before the Supreme Court of India. As a judge, he was widely respected for his uncompromising integrity, judicial independence, and profound commitment to the Indian Constitution. He is particularly known for his progressive judgments on critical issues such as gender justice and human rights.
In this insightful interview with Paresh Malakar, Justice Muralidhar offers critical reflections on the evolution of Indian law. He thoroughly discusses the necessity of a "progressive interpretation" of the Constitution to genuinely reflect modern societal values, an examination of the complex relationship between technological advancements and the quality of justice delivered, and his perspective as an "eternal optimist" on the challenges of judicial consistency and the preservation of liberty in India’s ongoing democratic experiment.
Edited excerpts:
Paresh Malakar: Why do you advocate for a "progressive interpretation" of the Constitution rather than just "interpretation"?
Justice S. Muralidhar: The Constitution was adopted 76 years ago. Since then, society has progressed, thinking has changed, and new generations have emerged. The Constitution is a "living document" that must reflect the values and ideas of the modern day. Progressive interpretation is necessary to accommodate these societal changes and ensure that the constitutional document remains relevant and responsive to the present generation's hopes and needs.
Can you give an example of how progressive interpretation changed the law?
A key example is the interpretation of Article 21 (life and liberty). In 1950 (A.K. Gopalan case), five out of six judges held that "procedure established by law" simply meant a statute enacted by Parliament. However, Justice Fazal Ali dissented, arguing that 'life and liberty' encompassed more than mere existence and that fundamental rights were inter-linked. It took 20 years for the Supreme Court to affirm this inter-linkage (in the Bank Nationalization Case) and then formally declare it in the Maneka Gandhi case (1978), significantly broadening Article 21's scope to include fairness and reasonableness. This was a critical progression in the law.
You mentioned the progress isn't always smooth. What is an example of resistance to progressive interpretation?
The interpretation of the word 'sex' in Article 15 (non-discrimination) is a perfect illustration. In 2009, the Delhi High Court (in the Naz Foundation case) progressively interpreted 'sex' to include sexual orientation, decriminalizing consensual same-sex acts. This was subsequently overturned by a two-judge Supreme Court bench in 2013. However, in the Justice Puttaswamy case (2017), a nine-judge bench ultimately approved the Delhi High Court's progressive reading. This demonstrated the uneven nature of judicial progress.
How has the introduction of technology and infrastructure, referred to as "digitalization," improved the Indian judiciary?
Digitalization has improved both ease of functioning and access to justice. For access, litigants can now use e-filing from any location and appear for hearings virtually (especially post-COVID-19), eliminating the need for physical travel. For functioning, digitizing records has helped free up space in courts currently overflowing with paper files. Furthermore, live streaming of court proceedings promotes greater transparency and accountability among judges and lawyers.
Does technology automatically lead to a better quality of justice?
No, technology is merely a tool. The quality of a judgment, the soundness of the reasoning, and the elimination of judicial bias depend entirely on the judge. Technology helps indirectly by providing better court management techniques (e.g., analyzing case ages) and increasing accountability through transparency, which can incentivize better preparation and conduct.
What is the risk associated with using Artificial Intelligence (AI) in judicial decision-making?
The risk is that AI relies on algorithms and rigid formulas. Judges, particularly in areas like criminal sentencing, must apply an element of discretion based on the specific background and context of the litigant. Applying a mechanical AI formula could result in severe injustice, as it cannot adequately substitute for human judgment and context-specific reasoning.
Are the judicial systems doing better overall, or turning worse?
I remain an eternal optimist. Our democracy and judicial system are a work in progress. While there are moments of disappointment, there are also highly progressive judgments that reaffirm faith in the institution. It is a mix, and the goal is to see the positive moments increasingly on the rise.
Why is there inconsistency in high-profile bail matters, where some people spend years in jail without trial despite the principle "bail is the rule, jail is the exception"?
This inconsistency is unfortunate and is often called a "judicial lottery," as outcomes can vary widely between different benches. The core problem has two parts: first, stringent laws like the UAPA and PMLA make it extremely difficult for the accused to prove their innocence before trial, thus tying the hands of the judiciary. Second, prosecution lawyers often fail to act as objective law officers and instead aggressively oppose bail, even in cases of prolonged pre-trial detention.
If legal parameters for bail are settled, why does one judge take a liberal view while another takes a conservative view on the same material?
Although parameters like flight risk and tampering with evidence are settled, there is still an inherent element of discretion in applying these factors. Given that the Supreme Court has 34 judges sitting in many different benches, it inevitably leads to divergent approaches and interpretations, especially in sensitive cases. The fact that numerous bail applications reach the Supreme Court is a clear indicator of the judicial burden and the need for greater consistency at all levels.