Opinion Collegium’s opacity is injurious to the institution’s health

In his farewell speech on November 21, Allahabad High Court Chief Justice Pritinker Diwaker raised questions on his transfer from Chhattisgarh to Allahabad HC in 2018. “Now, a sudden turn of events descended upon me when then Chief Justice of India Dipak Misra showered on me some extra affection for reasons still not known to me which entailed my transfer…”, he said. This came a day after Justice Bibek Chaudhuri of Calcutta High Court, who had been transferred to Patna High Court, compared his transfer to the Emergency-era mass transfers of judges, in his own farewell speech. In an interview to the Indian Express on November 22, another chief justice of a high court, Justice Sanjib Banerjee, said that the NV Ramana-led Collegium did not inform him of the reasons for his abrupt transfer as Chief Justice of Madras High Court in 2021. “I am sure there were cogent reasons for my transfer but I am not aware of it. I only received an email (from then CJI Ramana’s office)…” Justice Banerjee said.

The point underlined by the three judges highlights a larger issue — the functioning of the Collegium system. Transfers are recommended by the SC Collegium for several reasons. One, to set the stage for appointing chief justices or ensuring elevation to the SC. A potential candidate for SC judgeship is usually sent to a large high court to be tested on judicial performance. The other reason for transfers is punitive — to deal with errant judges. Constitutionally, impeachment is the only remedy when questions of propriety are raised against a judge. The process of impeachment is political, requiring a trial by Parliament. Since it requires a very high degree of evidence and political will, transferring a judge out of his parent HC has been seen as an easy solution for over three decades. However, since nobody beyond the three or five Collegium judges is aware of the reasons, a shadow is cast on the transfer process.

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In an interview to the Indian Express in August 2022, before he took office, CJI UU Lalit had said that a certain “opaqueness” may be necessary and preferable for the Collegium system to function. However, the questions raised by the three judges show that, beyond a point, the Collegium’s opacity can be injurious to the internal health of the institution. The judiciary, which cites the Collegium system as the basis of judicial independence, must reflect on this. When such questions are raised, they threaten to erode public confidence while undermining the trust of the judiciary’s own.