Kamal Ghorui
NEW DELHI: Stressing that the biggest threat to the independence of the judiciary “is from within”, Supreme Court judge Ujjal Bhuyan expressed on Saturday his dissent and disappointment with the collegium’s decision to transfer Justice Atul Sreedharan from MP high court to Allahabad HC on the Centre’s suggestion, and said it “reveals a striking intrusion of executive influence” in collegium system, which is “unfortunate”.Without naming Justice Sreedharan, Justice Bhuyan asked why should a judge be transferred from one high court to another merely because he had passed some “inconvenient order” against the govt.
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SC collegium had in Aug recommended Justice Sreedharan’s transfer from MP to Chhattisgarh HC but the collegium changed its decision on Centre’s request and shifted him to Allahabad HC in Oct. Many law experts termed it a punitive measure against him for passing orders inconvenient to the govt. It was a bench headed by him that had in May taken suo motu cognisance against BJP minister Vijay Shah for using ‘scurrilous language’ against Col Sofiya Qureshi.‘Govt-dictated transfer shows erosion of judiciary’s autonomy’“Then again when it is noted in collegium resolution itself that a particular HC judge who was to be transferred to another HC was subsequently transferred to different HC by modifying earlier recommendation on reconsideration sought by central govt. Does it not compromise the integrity of the collegium system,” he said.Justice Bhuyan was delivering the Principal G V Pandit Memorial Lecture on “Constitutional Morality and Democratic Governance” at ILS Law College in Pune.The collegium resolution which was uploaded on the SC website stirred a storm as it revealed officially for the first time that the govt interferes in appointment of judges. But that was soon withdrawn and it was replaced with a new release after omitting that part.Justice Bhuyan said that the govt has no role or say in the transfer of judges which comes within the exclusive domain of the judiciary and that a transfer done at the instance of the govt reveals that the independence of the judiciary has been compromised.“When collegium itself records that the transfer was done at the request of the central govt, it reveals a striking intrusion of executive influence to what is constitutionally supposed to be an independent process created to make such immune to executive and political influence… It reflects clear admission of political executive influencing collegium decision… It’s unfortunate,” Justice Bhuyan said.He said the govt cannot say that such and such judge be transferred to such and such HC or not to be transferred there. “It has become more important for the judiciary, particularly members of collegium, to continue to function independently and the integrity of the collegium system must be maintained at all costs. As judges we have taken an oath of the Constitution to perform our duty without fear or favour. We must remain true to our oath. If we lose our credibility then nothing will remain of the judiciary. Judges will be there, court will be there, matter will also be adjudicated but heart and soul will evaporate,” he said.He said that constitutional morality, which means that the country is governed by rule of law and not by rule of people, is the soul of democratic governance and it ensures that democratic institutions function keeping in mind the overarching principles of liberty, exercising restraint and adhering to constitutional values and not bulldozing through on the strength of numbers, authority and power.“Judiciary has neither the purse nor the sword. All that it has is the faith reposed in it by the people and if that faith is breached then nothing will be left of the judiciary,” he said while holding the collegium is not the best available system for appointment of judges but there is a scope of reform.“Sociology says that a man is a political animal and a judge is also a human being. It is, therefore, natural for a judge to have political and ideological leaning and there is nothing wrong in it. But that should not cloud the decision-making process of a judge who is not supposed to follow political ideology but constitutional principle in judicial proceedings. It would be a sad day for judiciary and by extension for our democracy if the decision in a case becomes a foregone conclusion the moment a case is listed before a particular judge or bench,” he said.
