Recently, Justice Ujjal Bhuyan of the Supreme Court, by necessary implication, criticised the Collegium headed by the then Chief Justice B R Gavai, for its resolution of October 14, 2025. The resolution recommended the transfer of Justice Atul Sreedharan from the Madhya Pradesh High Court to the Allahabad High Court, rather than to the Chhattisgarh High Court as proposed earlier. It was stated that the change of decision was due to the request from the Union government. Justice Bhuyan rightly lamented that when the Collegium noted in the minutes that the transfer is made at the behest of the Centre, it reflects the Centre’s clear intrusion into the internal affairs of the judiciary. The judge also spoke extensively about the judiciary's credibility crisis.
The Indian Constitution is not a perfect document that meets every crisis the nation or her institutions may face from time to time. Regulating transfers of HC judges is a grey area. Article 222 of the Constitution only says that the President may, after consultation with the Chief Justice of India, transfer a judge from one HC to another. During the National Emergency (1975-1977), the country witnessed the non-consensual transfer of 16 HC judges who refused to please the regime. The Constitution does not indicate the parameters for transferring or not transferring HC judges. As held in Chand Himatlal Sheth (1977), Article 222 does not mandate that the transfer be consensual. This deficit was sought to be remedied by precedents popularly known as the Judges cases: The First Judges Case (1981), Second Judges Case (1993), Third Judges Case (1998) and the Fourth Judges Case (2015). The 1981 decision that upheld the executive’s power in the realm of judicial appointments is no longer the law, with the invention and evolution of the Collegium, as seen in subsequent cases. Like judicial appointments, in principle, the transfer of judges is now within the Collegium’s domain. Yet, judicial transfers were often criticised for being vitiated by executive influence.
The executive’s role in judicial transfers across high courts is not erased in India, despite the verdicts to the contrary in the Second, Third and Fourth Judges cases. By designing the new memorandum of procedure device, which the Constitution did not envisage, the Supreme Court's judgements created more problems than they resolved. In the matter of appointment, including that to the Supreme Court, the Centre does have a de facto role. In transferring high court judges, often leading to a change in the composition of Collegium in the respective HCs, similar executive dominance prevails. A senior judge who is part of the Collegium might lose her status as a member once she is sent to another HC with more senior judges. This would impact her participatory role in administrative decisions. The Centre plays a pivotal role in such transfers, sometimes with a dubious agenda. This exposes the rhetoric about judicial independence in India.
In 2017, when Justice Jayant Patel, then the second senior-most judge of the Karnataka High Court, was transferred to the Allahabad High Court, he resigned. Last year, the transfer of Justice Nisha Banu from the Madras High Court to the Kerala High Court also ignited controversies. Several judicial transfers drew criticism of the Collegium as well as the Centre.
Transfer of judges without obtaining consent and without any criteria is bound to meet such a fate. B R Ambedkar visualised HC judges as forming “a single cadre”. Though admirable in principle, this has never been the Indian case. These judges (except the Chief Justices) are almost always chosen from the respective states. Therefore, as H M Seervai noted in his classic treatise on Constitutional Law, for a proper invocation of Article 222 of the Constitution, prior consent of judges should be obtained. The 80th Law Commission report also suggested the same idea, “to prevent abuse of power”.
Justice Bhuyan’s speech was also on the credibility of the judiciary. When Justice Bhuyan, along with Justice Abhay S Oka, ruled in favour of prior mandatory environmental clearance for certain mega projects, the three-judge Bench headed by the then Chief Justice Gavai overruled the judgement in the guise of a review. As part of that Bench, Justice Bhuyan had to reiterate his earlier view, which remains as a minority view that lacks enforceability. His dissenting judgement in Vanashakti (2025) was “an appeal to the brooding spirit of law, to the intelligence of a future day”, as Charles Evan Hughes famously said about judicial dissent. Justice B V Nagarathna publicly criticised the Supreme Court's practice of frequently overturning its earlier judgements, leading to inconsistency and uncertainty. The two-judge Bench consisting of Justices Dipankar Datta and A G Masih also expressed the same concern in Sk Md Anisur Rahman (2025).
Institutional dissent is a significant means of maintaining judicial integrity. In India, majoritarian regimes have, right from the 1950s, begun to meddle with the structural and functional autonomy of the judiciary. In 1951, attempts were made to supersede the senior-most judge, Justice M Patanjali Sastri, in the appointment of a new Chief Justice following the demise of the country’s first Chief Justice, Harilal J Kania. This was opposed by all the judges of the Supreme Court with a threat of en masse resignation. Then the government had no other way but to step back. It was a collective dissent against the executive. Justice Nagarathna’s dissent when the Collegium chose to elevate Justice Vipul Manubhai Pancholi to the Supreme Court, overlooking the seniority of many others, has been an insider’s assertion. A total lack of criteria for elevation to the Supreme Court can create immense hurdles to maintaining the system’s credibility. Often, the decision to pick and choose junior hands impacts the morale of senior judges in the HCs, including chief justices, which in turn affects the quality of their service.
Franz Kafka, in his popular work The Trial, lamented that lawyers do not dare to complain about the systemic deficits nor do they want to improve the system, while people at large do want the judiciary to reform. The credibility crisis highlighted by Justice Bhuyan requires lawyers and judges to speak out publicly, as dissent alone can bolster judicial democracy.
Kaleeswaram Raj | Lawyer, Supreme Court of India
(Views are personal)
(kaleeswaramraj@gmail.com)