By expressing his disappointment and anguish over the Supreme Court Collegium’s decision to transfer a judge from one High Court to another at the behest of the government, Justice Ujjal Bhuyan has raised fundamental questions on the independence of the judiciary. He was referring to the recent transfer of Justice Atul Sreedharan from the Madhya Pradesh High Court to the Allahabad High Court and the Collegium’s admission that it was done at the request of the Central government. Justice Sreedharan was earlier supposed to have been transferred to the Chhattisgarh High Court. Justice Bhuyan questioned this admission of executive influence in what is supposed to be an independent judicial process and wondered why a judge should be moved from one court to another just because he issued orders that were inconvenient to the government. He warned that such actions strike at the root of judicial independence and compromise the Collegium system of judicial appointments. He said members of the Collegium must ensure that they are not swayed by external pressure in the decision-making process.
Ironically, the Collegium system came into being as a backlash to the Emergency and the fear of judicial independence being compromised. When the BJP government passed the National Judicial Appointments Commission Act, which envisaged a six-member body to oversee judicial appointments, it was struck down by the Supreme Court in 2015 in favour of retaining the Collegium. This tussle between the executive and the judiciary over appointments has been ongoing and is raised from time to time. Former vice president, Jagdeep Dhankar, took up the issue in the Rajya Sabha in his capacity as Chairman of the House and favoured revival of the NJAC Act. Justice Bhuyan’s concerns are, therefore, valid because judicial independence and integrity are of supreme importance. Any executive interference in the top court’s proceedings is tantamount to a betrayal of the people of the country. He pointed out that judges take an oath on the Constitution to perform their duties without fear or favour; therefore, they are duty-bound to remain free from any outside influence.
Justice Bhuyan’s observations raise many questions about the manner of functioning of the judiciary. It was during the Emergency that the judiciary was seen at its nadir, bending to the dictates of an authoritarian regime. Subsequently too, questions have been raised about the timing and tenor of certain judicial pronouncements, but Justice Bhuyan’s hard-hitting pronouncements strike a deep chord. While admitting that judges, like all other individuals, may have personal views and ideologies, he said these cannot be allowed to predetermine judicial outcomes. The key takeaway of his assertions is that only the needs of justice and better administration of courts can determine transfers and postings, not external influences.
