'Incomplete justice?': Justice S Muralidhar on courts, secularism, and Ayodhya verdict

Justice (Retd) S Muralidhar — former Chief Justice of the Orissa High Court and now a senior advocate — recently spoke to The Federal on the Supreme Court at 75, judicial delays, the limits of Article 142, and how the Court has engaged with majoritarian impulses. During the conversation, he also elaborated on his edited volume — (In)Complete Justice? The Supreme Court at 75 — and his recent A G Noorani Memorial Lecture on secularism.

Why title your edited volume (In)Complete Justice? The Supreme Court at 75—why 'In' in brackets?

We inherited a colonial judicial system—with delays, uncertainties, and unrecoverable costs—from Day One. Many litigants feel that even a final win comes “too little, too late,” leaving a brooding sense of injustice. Others argue that, despite flaws, the system still delivers some measure of justice. The bracketed “In” captures these competing perceptions.

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Article 142 gives the Supreme Court a unique power to do “complete justice”. For over 75 years, it has been used to forge remedies not strictly traceable to statute. But some outcomes — like creating extra tiers of review — have arguably added delay and cost, deepening the very incompleteness that Article 142 sought to cure.

Has the judiciary upheld the Republic’s foundational values consistently?

It’s a mixed record. There have been moments of real outreach — like the Court’s intervention on sexual harassment at the workplace in Vishaka, which drew from international conventions and led to Parliament’s 2013 law. Yet consistency across benches and time has been elusive because, unlike apex courts that sit en banc, our Supreme Court (34 judges) sits in many two-judge benches, producing variance that can hinder coherent legal development.

Constituent Assembly debates avoided invoking God in the Preamble. How does that history relate to secularism jurisprudence?

From the beginning, India’s Constitution chose a secular path — rejecting amendments to start the Preamble with “in the name of God,” proposed by H V Kamath and opposed by members like Purnima Banerjee. Decades later, the Court’s Kesavananda Bharati decision identified 'basic structure", and S R Bommai reaffirmed secularism as part of it. That line has not always travelled smoothly — subsequent cases show divergent approaches among Benches — but the constitutional foundation is clear.

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How do you read the Court’s uneven responses to majoritarian politics — whether in riot cases, Sabarimala, the hijab cases, or the 1995 “Hindutva as a way of life” rulings?

Judicial responses have been uneven. The 1995 “Hindutva” line, authored by Justice J S Verma in election-speech cases, has been widely critiqued for blurring lines between religion and politics. Meanwhile, other Benches — like Bommai — were emphatic that secularism is part of the Constitution’s basic structure. The Court reflects competing currents: some judges strongly reaffirm secularism; others drift. A constitutional court must be counter-majoritarian — giving space to dissenting and minority voices when other institutions falter.

Is the current executive-legislature confrontation over governors and Bills a test of federalism—and the Court’s role?

Yes. Today’s friction over governors “sitting” on state Bills reveals constitutional silences. When that creates an institutional imbalance, courts are asked to restore it. A recent two-judge Bench (Justices J B Pardiwala and R Mahadevan) held that Tamil Nadu’s governor acted illegally in reserving re-passed bills and laid down timelines, invoking Article 142 to deem assent and to fix outer limits for decisions, including at the president’s end.

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A five-judge bench is now considering the broader presidential reference on whether such timelines can be judicially mandated. The balance between discretion and duty — and federalism as a basic feature — is squarely in play.

Some leaders have attacked the basic-structure doctrine—arguing Parliament’s will is supreme. Does that worry you?

This isn’t new. When a government enjoys brute majority (think the 1970s), the temptation is to declare Parliament omnipotent and to fence off judicial review. The basic-structure idea itself drew on comparative lessons after democratic breakdowns — famously articulated by German scholar Prof. Dieter Conrad in his 1965 BHU lecture — and took shape through Golaknath and Kesavananda. History shows the people push back against dominance; the Court’s role is to be counter-majoritarian and preserve constitutional balance.

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The CJI recently warned that “judicial activism should not become judicial terrorism.” Are courts overreaching — or simply restoring balance?

Labels don’t help. The real question is whether courts act to restore constitutional equilibrium when other branches fail their duties. If governors use delays to frustrate an elected mandate, the Court can’t be a mute spectator. That doesn’t mean constant intervention; it means principled intervention to keep federal and constitutional wheels turning — especially when dialogue between governors and chief ministers breaks down.

On Ayodhya: you’ve argued the Supreme Court went beyond the suits’ prayers — directing construction of a temple without any party seeking such relief. Why is that problematic?

The suits were classic title suits — about declaration and possession. The Court ultimately could not conclude, on evidence, that a Hindu temple was demolished to build the mosque; it acknowledged illegal acts of 1949 and 1992.

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Yet the operative part used Article 142 to direct a central government trust and temple construction, while offering alternate land for a mosque. That remedy didn’t flow from the pleadings or framed issues; it sits uneasily with the Court’s own evidentiary conclusions and risks becoming a non-precedent precisely because the conclusion doesn’t logically follow the reasoning.

The Court had set up a mediation panel. You say the final report — where the UP Sunni Waqf Board was reportedly willing to relinquish claims subject to conditions — wasn’t meaningfully explored. What should have happened?

When mediation reaches "almost there", judges often invest time to nudge parties across the line, especially in century-old title disputes. Given the Court’s reliance on Article 142 in the final relief, it could have taken a little more time to test a negotiated settlement. If you are going to craft an equitable remedy beyond strict title, it is worth exhausting the consensual route.

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Are you concerned that Ayodhya might become a template for other disputes — Varanasi, Mathura, or Bhojshala— despite the Places of Worship Act?

Good judgments become usable precedents; others should not. My concern is precisely that: the Ayodhya reasoning does not neatly support its sweeping relief. With many sensitive suits pending — and challenges to the Places of Worship Act being argued — the judiciary’s counter-majoritarian role and fidelity to constitutional commitments, especially secularism and federal balance, will be tested again.

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