Transferring Judge At Centre's Request Compromises Integrity Of Collegium System : Justice Ujjal Bhuyan

Supreme Court Judge Justice Ujjal Bhuyan questioned the recent Collegium decision to modify the proposal to transfer a High Court Judge at the request of the Central Government, asserting that the executive has absolutely no say in the matter of transfer and postings of Judges.

Justice Bhuyan said that the Collegium's recording of the fact that the transfer proposal was made at the Centre's request "reveals a striking intrusion of executive influence into what is constitutionally supposed to be an independent process."

In October last year, the Supreme Court Collegium had modified its original proposal to transfer Justice Atul Sreedharan from Madhya Pradesh High Court to the Chhattisgarh High Court, and instead recommended his transfer to the Allahabad High Court. This move raised eyebrows, as the Collegium statement itself expressly recorded that the proposal was modified “on reconsideration sought by the Government”  At the Chhattisgarh High Court, Justice Sreedharan would have become a member of the HC Collegium. However, at the Allahabad High Court, Justice Sreedharan's seniority would be much lower. The decision attracted controversy also because of the reputation which Justice Sreedharan enjoyed as an independent judge, as evidenced by various orders, such as the suo motu case he initiated against an MP Minister for making disparaging comments against Colonel Sofiya Qureshi.

Delivering the Principal G.V. Pandit Memorial Lecture on “Constitutional Morality and Democratic Governance” at ILS Law College, Pune, Justice Bhuyan observed that the transfer and posting of judges fall exclusively within the domain of the judiciary and cannot be influenced by the Central Government.

“Why should a Judge be transferred from one High Court to another High Court just because he had passed certain inconvenient orders against the Government? Does it not affect the independence of the judiciary?” he asked, warning that such actions directly undermine the independence of the judiciary, which is a basic feature of the Constitution. However, Justice Bhuyan did not expressly take the name of Justice Sreedharan in his address.

“By the very nature of things, the Central Government can have no say in the matter of transfer and posting of High Court Judges. It cannot say that such and such Judge should not be transferred or should be transferred. It is within the exclusive domain of the judiciary,” he asserted.

He emphasized that transfers are meant only for the “better administration of justice” and not as tools to penalize judges for decisions that displease the executive. He indicated that the modification of the decision to transfer a Judge on the Centre's request “reflects a clear admission of the executive influencing collegium decisions.”

When the collegium records that the transfer of a High Court Judge was being made at the request of the Central Government it reveals a striking intrusion of executive influence into what is constitutionally supposed to be an independent process, created to render such process immune from executive and political influence.

When it is noted in the collegium resolution itself that a particular High Court Judge who was being transferred to a different High Court was subsequently transferred to another High Court by modifying the earlier resolution on reconsideration sought for by the Government, does it not compromise the integrity of the collegium system? 

Collegium system was devised to guard judicial independence; Judges duty-bound to ensure independence 

Justice Bhuyan reminded that the Collegium system was devised by the Supreme Court to ensure that the appointment process remained independent of executive influence. So, if the Collegium Members are getting swayed by the influence of the executive, then they are drifting away from the original purpose of the Collegium system.

"Now that the judiciary has repelled the Government's attempt to replace the collegium system, it becomes even more important for the judiciary, more particularly the members of the collegium, to ensure that the collegium continues to function independently. Integrity of the collegium process must be maintained at all costs. As Judges, we have taken a solemn oath to uphold the Constitution and to perform our duties without any fear or favour, affection or ill will. We must remain true to our oath," he said.

"Therefore, it is primarily the duty and responsibility of the Judges to uphold the sanctity and integrity of the judicial process, including the collegium system, thereby the independence of the judiciary It is for the judiciary, rather the members of the judiciary, to see to it that its independence is maintained at all cost in order to ensure its continued relevance and legitimacy,"Justice Bhuyan stressed.

Justice Bhuyan remarked that the greatest threat to judicial independence today may come “from within,” stressing that judges must guard against allowing political or ideological leanings to cloud their decision-making. “It will be a sad day for democracy if the outcome of a case becomes predictable merely by knowing which judge or bench is hearing it,” he said.

Reiterating that independence of the judiciary is “non-negotiable,” Justice Bhuyan concluded that it is ultimately the duty of judges themselves to preserve the sanctity of the system.

“If the Constitution is distorted then 'constitutional morality' is violated. As was said by Caroline Kennedy, an independent judiciary is indispensable to protect our democracy and the rule of law. For that, we need Judges who can stand erect against the political winds of the times.,” he said.