‘Striking intrusion’: Justice Ujjal Bhuyan raises concerns about executive say in judicial transfers

His remarks come against the backdrop of controversy last year when the SC Collegium modified its proposal to transfer Justice Atul Sreedharan from the MP HC to the Chhattisgarh HC and instead recommended his transfer to the Allahabad HC. The collegium expressly recorded that the change was made “on consideration sought by the Government”.

Justice Bhuyan said that after the judiciary had “repelled the Government’s attempt to replace the collegium system,” it had become even more important for the judiciary, more so for the members of the collegium, to ensure that it continued to function independently.

“As judges, we have taken a solemn oath to uphold the Constitution and to perform our duties without fear or favour, affection or ill will; we must remain true to our oath,” he said, adding that it was “primarily the duty and responsibility of judges to uphold the sanctity and integrity of the judicial process, including the collegium system” to ensure judiciary’s continued relevance and legitimacy.

‘Constitutional morality is soul of democratic governance’

Questioning the rationale behind transfers following adverse rulings, Justice Bhuyan asked, “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?” Such actions, he warned, undermine judicial independence, which is a basic feature of the Constitution.

He cautioned that the judiciary’s independence is more vulnerable to internal compromise within the institution. The issue, he said, was not limited to the collegium as a mechanism but went to the heart of how constitutional power is exercised by judges themselves.

“Constitutional morality is the soul of democratic governance, he said, “in our scheme of things, constitutional morality must outweigh the argument of public morality”, stressing 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,” he said, adding that even if a position is opposed by many, “if one person’s view is found to be constitutionally valid, the court has to uphold it”.

“The judiciary neither has the purse nor the sword,” Justice Bhuyan said. “All it has is the faith reposed in it by the people. If that faith is breached, nothing will be left of the judiciary.”