Transferring Judges and the Integrity of the Collegium System

Judicial independence is a fundamental cornerstone of constitutional democracy and the rule of law. In India, this idea has been rigorously upheld through constitutional interpretation, institutional design, and judicial innovation. Recent remarks by Supreme Court Justice Ujjal Bhuyan have rekindled discussions on the integrity of the collegium system, especially concerning a contentious alteration of a High Court judge’s transfer purportedly requested by the Central Government. Justice Bhuyan’s critique underscores significant apprehensions about executive overreach into judicial matters, the deterioration of constitutional ethics, and the possible undermining of protections intended to preserve judicial independence. This occurrence necessitates a reassessment of the collegium system, its constitutional foundation, its development via significant rulings, and the judiciary’s obligation to uphold its integrity.

Background of the Controversy: Transfer of Justice Atul Sreedharan

In October 2025, the Supreme Court Collegium amended its original recommendation to transfer Justice Atul Sreedharan from the Madhya Pradesh High Court to the Chhattisgarh High Court, instead proposing his transfer to the Allahabad High Court. The controversy surrounding this judgment stemmed from the Collegium’s statement, which explicitly noted that the modification was made “upon reconsideration requested by the Government.”

The consequences of this modification were significant. If Justice Sreedharan had been transferred to the Chhattisgarh High Court, he would have joined the collegium of that court. Conversely, his seniority at the Allahabad High Court would be significantly diminished, constraining his institutional impact. The decision garnered attention due to Justice Sreedharan’s esteemed reputation for independence, exemplified by his judicial acts, including the initiation of suo motu proceedings against a serving Madhya Pradesh minister for derogatory remarks directed against Colonel Sofiya Qureshi.

In this context, Justice Ujjal Bhuyan publicly challenged the constitutional validity of modifying a judicial transfer at the behest of the executive.

Justice Ujjal Bhuyan’s Intervention: Constitutional Morality and Judicial Independence

During the Principal G.V. Pandit Memorial Lecture on “Constitutional Morality and Democratic Governance” at ILS Law College, Pune, Justice Bhuyan articulated significant apprehension regarding what he termed a “striking intrusion of executive influence” into a process constitutionally designated for the judiciary.

He unequivocally stated that the Central Government has “absolutely no say” in the transfer and posting of judges, underscoring that these issues are solely the purview of the judiciary. Justice Bhuyan inquired if a judge could be reassigned just for issuing “inconvenient orders” against the administration, cautioning that such actions jeopardise judicial independence, a fundamental aspect of the Constitution.

He noted that when a collegium decision explicitly states that a transfer was altered at the government’s behest, it undermines the integrity of the collegium system. While he did not explicitly mention Justice Sreedharan, the context rendered the reference unequivocal.

Justice Bhuyan emphasised that judicial transfers are intended exclusively for the “better administration of justice” and not as instruments of punishment. He characterised the modification of a transfer proposal at the president’s behest as a “clear admission” of executive control, fundamentally inconsistent with the constitutional framework.

The Collegium System: Origins and Constitutional Framework

The Constitution of India does not specifically mention the collegium system. Articles 124 and 217 stipulate that the President shall appoint judges of the Supreme Court and High Courts following “consultation” with the judges of the judiciary. The definition of “consultation” became the central issue in significant constitutional litigation.

The First Judges Case (S.P. Gupta v. Union of India, 1981)

In S.P. Gupta v. Union of India, the Supreme Court initially determined that “consultation” wasn’t equivalent to “concurrence,” consequently prioritizing the executive in judicial appointments. The decision substantially augmented governmental power over the judiciary.

The Second Judges Case (Supreme Court Advocates-on-Record Association v. Union of India, 1993)

A significant reversal transpired in the Second Judges Case, wherein the Court determined that “consultation” essentially signified “concurrence” of the Chief Justice of India, thus prioritising the judiciary. The decision established the basis for the collegium system, with the Court asserting that judicial independence necessitated separation from executive influence.

The Third Judges Case (In re Presidential Reference, 1998)

In response to a Presidential Reference, the Supreme Court augmented the collegium to incorporate the Chief Justice of India and four most senior judges. This decision formalised collective judicial decision-making in appointments and transfers, mitigating the potential for individual prejudice.

Judicial Transfers: Objectives and Constitutional Constraints

Judicial transfers, especially of High Court judges, are constitutionally authorised under Article 222. The Supreme Court has repeatedly maintained that such transfers should be directed by public interest and the enhancement of justice administration.

In Union of India v. SankalchandHimatlal Sheth (1977), the Court underscored that transfers must not be punitive or influenced by irrelevant factors. Justice Bhuyan’s comments reflect this legal principle, cautioning against the use of transfers as tools for covert governmental influence.

Executive Authority and the Basic Structure Doctrine

Judicial independence has been acknowledged as a fundamental component of the Constitution’s basic structure since the Kesavananda Bharati v. State of Kerala case in 1973. Any legislative or executive action that compromises this independence is constitutionally questionable.

Justice Bhuyan’s remarks indicate that government influence in judicial transfers undermines this fundamental principle. His caution that the most significant peril to judicial independence may arise “from within” highlights the risk of institutional compliance with administrative inclinations.

NJAC and the Reaffirmation of the Collegium

The collegium system endured a direct constitutional challenge when the National Judicial Appointments Commission (NJAC) was invalidated in Supreme Court Advocates-on-Record Association v. Union of India (2015). The Court determined that the NJAC undermined judicial independence by granting the government and civil society representatives equal power in appointments.

Justice Bhuyan emphasised that, having thwarted the government’s effort to supplant the collegium, the court now assumes an augmented responsibility to guarantee the system operates independently and credibly.

Judicial Ethics, Oath, and Constitutional Morality

Justice Bhuyan underscored that judges are obligated by a solemn oath to protect the Constitution “without fear or favour, affection or animosity.” He cautioned that permitting executive interests to affect collegium judgments would constitute a violation of this oath.

He additionally warned that if judicial results become foreseeable based on the identity or perceived ideology of judges, democracy itself would be compromised. This predictability would undermine public trust in the judiciary’s impartiality and legitimacy.

Wider Consequences for Democratic Governance

The controversy extends beyond a singular move. It prompts essential inquiries on transparency, accountability, and constitutional ethics within the judiciary. Although the collegium system has faced criticism for its lack of transparency, Justice Bhuyan’s intervention underscores that internal integrity is as vital as outward independence.

The episode exemplifies the intricate equilibrium between judicial independence and democratic accountability. Insulation from the executive is essential, but it must be coupled with meticulous devotion to constitutional principles within the court.

Consequences of Justice Bhuyan’s Remarks

Justice Bhuyan’s remarks have significantly advanced a crucial constitutional discourse. By openly challenging executive authority, he has confirmed the judiciary’s position as the protector of the Constitution. His intervention may stimulate deeper reflection inside the collegium, promote transparency in decision-making, and reaffirm that judicial independence is vital.

Conclusion

The modification of a judicial transfer at the purported behest of the Central Government, coupled with Justice Ujjal Bhuyan’s emphatic reaction, highlights the precariousness and importance of judicial independence in India. The collegium system was established to protect against executive meddling, based on constitutional interpretation and the idea of basic structure. The integrity of the court relies not only on its ability to withstand external pressures but also on its internal dedication to constitutional values.

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