Supreme Court Judge Justice Ujjal Bhuyan on Saturday raised significant concerns regarding the functioning of the Collegium system, specifically warning that executive influence over the transfer of High Court judges poses a threat to judicial independence.
Speaking at the Principal GV Pandit Memorial Lecture at ILS Law College, Pune, Justice Bhuyan emphasized that the transfer and posting of High Court judges fall exclusively within the domain of the judiciary. He criticized instances where Collegium resolutions explicitly record that a transfer was made at the request of the Central Government, terming it a “striking intrusion.”
Executive Interference in Judicial Transfers
Justice Bhuyan’s address focused heavily on the sanctity of the Collegium system and the necessity of keeping it immune from political pressure. He observed that when the Collegium itself documents that a transfer is being executed based on a request from the Central Government, it signals a compromise of the independence that the Constitution guarantees to the process.
“When the collegium itself records that a transfer is being made at the request of the Central Government, it reveals a striking intrusion of the executive into a process that is constitutionally meant to be independent and immune from executive and political influence,” Justice Bhuyan stated.
He further asserted, “By the very nature of things, the Central Government can have no say in the transfer and posting of the HC judges. That is exclusively within the domain of the judiciary.”
Context: The Justice Atul Sreedharan Transfer
The Supreme Court Judge’s remarks appear to be in the backdrop of a controversy that arose last year regarding the transfer of Justice Atul Sreedharan. The Supreme Court Collegium had initially proposed his transfer from the Madhya Pradesh High Court to the Chhattisgarh High Court. However, the proposal was subsequently modified, recommending his transfer to the Allahabad High Court instead. Notably, the Collegium’s resolution expressly recorded that the change was made “on consideration sought by the Government.”
Justice Bhuyan noted that since the judiciary had successfully “repelled the Government’s attempt to replace the collegium system” (referring to the NJAC verdict), the onus lies heavily on the members of the Collegium to ensure the system continues to function with absolute independence.
Transfers Following Adverse Rulings
Justice Bhuyan also questioned the rationale behind transferring judges who pass orders unfavourable to the government. He termed such actions as detrimental to the “basic feature” of the Constitution—judicial independence.
“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.
He warned that the independence of the judiciary is often more vulnerable to “internal compromise within the institution” than external attacks. He stressed that judges must adhere to their oath to perform duties “without fear or favour, affection or ill will.”
Constitutional Morality and Counter-Majoritarian Courts
Expanding on the role of the judiciary in a democracy, Justice Bhuyan stated that “constitutional morality is the soul of democratic governance.” He distinguished this from public morality, asserting that in the constitutional scheme, the former must always outweigh the latter.
He highlighted that constitutional courts are “by their very nature counter-majoritarian.”
“A constitutional court cannot say that because a view is subscribed to by the majority it will endorse it,” Justice Bhuyan observed. He added that even if a view is opposed by the majority, “if one person’s view is found to be constitutionally valid, the court has to uphold it.”
