Justice Ujjal Bhuyan questions judges' transfer over orders passed against government

Justice Ujjal Bhuyan, judge, Supreme Court of India recently questioned the transfer of judges from one high court to another over them passing orders against the government. "Why should a judge be transferred from one high court to another high court merely because he had passed certain inconvenient orders against the government? Does it not affect the independence of the judiciary?", Justice Bhuyan has asked.

The Supreme Court judges on Saturday, January 24th also flagged how collegium resolutions note 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 recommendation on reconsideration sought for by the central government. 

"Does it not compromise the integrity of the collegium system when the collision itself records in its 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", he remarked.

Delivering the Principal GV Pandit Memoria Lecture on "Constitutional Morality and Democratic Governance", Justice Bhuyan highlighted that 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 or if transferred to such and such. It is exclusively within the domain of the judiciary. Transfer of judges is always for the better administration of justice", he added.

Transfer of a judge is always for the better administration of justice, Justice Bhuyan said, noting that it is an internal matter of the judiciary and the government can have no say in that.

"So when the collegium itself 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 the executive into a process which is supposed to be constitutionally immune and created to render such process immune from executive and political influence. It reflects a clear admission of the executive influencing collegium decisions, the very thing that it sought to prevent and that's very unfortunate..", Justice Bhuyan said.

During his lecture, the judge also acknowledged the criticism that the collegium system lacks transparency and accountability. Justice Bhuyan said the system is preferable to alternatives that would allow a greater role for the government in judicial appointments.

Speaking more on the independence of judiciary, Justice Bhuyan said, "We don't need a platoon of CRPF to guard the courts. Nobody's going to physically attack the courts. It is the judges who else otherwise will defend the independence of the judiciary and to a lesser extent the bar. Independence of the judiciary is a basic feature of our constitution. As I just said, it is non-negotiable. It is for the judiciary or rather the members of the judiciary to see to it that its independence is maintained at all costs in order to ensure its continued relevance and legitimacy. Relevance and legitimacy is the main thing. If we lose our credibility, nothing will be left of the judiciary. It will be there. Judges will be there, courts will be there. They will adjudicate. But this heart and soul will evaporate".