Justice Ujjal Bhuyan rings the warning bells on judicial independence

RECENTLY, Justice Ujjal Bhuyan, judge at the Supreme Court of India, spoke about the executive’s interference in the transfer of High Court judges. Although Justice Bhuyan did not specify which transfer he was referring to, his reference to a Collegium decision – where reasons for transferring a particular judge to a particular High Court at ‘government’s request’ was made public – makes one infer he was referring to the transfer of Justice Atul Sreedharan. Justice Sreedharan was transferred from the Madhya Pradesh High Court to the Allahabad High Court, instead of the Chhattisgarh High Court which the Collegium had initially recommended.

It was heartening to note that Justice Bhuyan expressed his concerns about the manner in which the transfer took place, despite being part of the system. Generally, what we see is that judges experience an epiphany after they retire and then begin to comment on the state of affairs across various issues.

Justice Bhuyan’s concern is not ill-founded. The collegium system, established by the Court itself through judicial creativity, was intended to insulate the judiciary from executive interference in the appointment and transfer of judges, thereby securing judicial independence.

However, of late, a pattern has emerged—at least in public perception—where judges are sought to be transferred as a mode of punishment, and in some cases, transfers are not effected despite the Collegium’s recommendations.

The same applies to the appointment of judges. From selectively implementing the Collegium’s recommendations, withholding names for years on end, to completely distorting the seniority of candidates, the Collegium’s response has been meek. Though the government was sought to be insulated in matters of appointments and transfers, it has instead been playing a decisive role.

This piece focuses only on the transfer of judges. One can understand the government’s procedural role in the appointment process, since its agencies are required to conduct background checks on the candidates proposed for recommendation. However, for the government to play any role in the transfer of judges is far more insidious. 

One wonders what interest the government could possibly have in the transfer of a particular judge from one High Court to another, while at the same time refusing to give effect to other transfers.

The transfer of judges, including a Chief Justice, from one High Court to another is governed by Article 222(1) of the Constitution of India. Such transfers are made for the “better administration of justice”. The consent of a judge is not required for his first or subsequent transfer. The term “better administration of justice” is not defined anywhere.

In the Second Judges Case (1993), a nine-judge Constitution Bench held that the opinion of the Chief Justice of India (‘CJI’) not only has primacy but is also determinative in matters of transfer of High Court Chief Justices and judges.