Adv. Shraddha Sunil

The transfer of High Court judges is often shown as a routine administrative exercise, kept away in official notifications and collegium resolutions. Yet, behind this procedural façade lies one of the most sensitive fault lines in India’s constitutional architecture: the separation of powers and the independence of the judiciary.

This tension came sharply into focus when Supreme Court Justice Ujjal Bhuyan categorically stated that the transfer of judges is an internal matter of the judiciary and that the government can have no say in it. While the remark may appear declaratory, its constitutional implications are profound. It reasserts a principle that has been repeatedly contested, diluted, and politically tested over decades ant that judicial independence is not just about independent decision making, but also about institutional control over judicial careers.

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In an era marked by growing unease over executive influence, delayed appointments, selective transfers, and opaque consultative processes, Justice Bhuyan’s assertion is not just a statement of position; it is a constitutional reminder. This article examines the legal foundations of judicial transfers, the evolution of the collegium system, the limits of executive participation, and why any governmental “say” in transfers threatens the basic structure of the Constitution.

Constitutional Framework Governing Judicial Transfers

The power to transfer judges is rooted in Article 222 of the Constitution of India, which provides that a Judge of a High Court may be transferred from one High Court to another by the President after consultation with the Chief Justice of India.

At first glance, the provision appears to vest formal authority in the executive, acting through the President. However, constitutional interpretation has long rejected a literal reading of Article 222. Instead, judicial precedent has decisively transformed “consultation” into binding primacy of judicial opinion, thereby insulating the transfer process from executive discretion.

This transformation did not happen overnight. It emerged through decades of constitutional adjudication responding to the realisation that control over judicial postings can be weaponised to discipline inconvenient judges by the sitting government.

From Consultation to Primacy: The Judicial Rewriting of Article 222

The early understanding of “consultation” under Articles 124, 217, and 222 allowed the executive significant power. This balance began to shift with growing awareness that executive dominance in appointments and transfers compromised judicial independence.

The decisive shift came through the Second Judges Case (Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441). The Supreme Court held that in matters of appointment and transfer of judges, the opinion of the Chief Justice of India, formed collectively with senior judges, would have primacy over the executive.

This position was further entrenched in the Third Judges Case (1998), where the Court clarified that judicial opinion must be institutional, not individual, and that the executive’s role was limited to seeking reconsideration and not veto.

In effect, while Article 222 still uses the language of executive action, constitutional practice has hollowed out executive discretion, leaving the transfer power substantively within the judiciary.

Justice Ujjal Bhuyan’s statement therefore does not introduce a new principle in fact it reaffirms settled constitutional law.

Why Transfers Are Not Mere Administrative Decisions

Transfers are often justified in the name of “administrative exigency” or “public interest.” However, constitutional jurisprudence recognises that judicial transfers directly affect independence.

A judge’s security of tenure is not limited to protection from removal; it extends to protection from arbitrary relocation. Frequent or punitive transfers can function as:

1. indirect punishment,

2. signals of institutional displeasure,

3. deterrents against judicial dissent,

4. or tools to isolate judges from familiar legal ecosystems.

In S.P. Gupta v. Union of India (1981), although the majority initially favoured executive discretion, even that judgment acknowledged that transfers could not be used as a form of punishment. Later jurisprudence went further, recognising that even the perception of executive influence erodes public confidence.

Thus, when Justice Bhuyan insists that the government can have “no say,” the emphasis is not on hostility to the executive, but on preserving the psychological and functional independence of judges.

Executive “Consultation” vs Executive Influence

A critical distinction must be drawn between consultation as a constitutional formality and influence as a constitutional vice.

Under the collegium system:

1. the executive may place material before the collegium,

2. flag intelligence inputs or administrative concerns,

3. and request reconsideration.

However, once the collegium reiterates its decision, the executive is constitutionally bound to comply.

Any attempt by the government to:

1. delay transfers,

2. selectively notify recommendations,

3. or informally pressure the judiciary

amounts to constitutional overreach.

Justice Bhuyan’s assertion is particularly relevant in light of growing concerns over delayed notifications, selective compliance, and unexplained executive silence on collegium recommendations and practices that, while formally legal, undermine constitutional morality.

Transfers, Dissent, and the Chilling Effect

Historically, judicial transfers in India have carried a troubling legacy. During the Emergency, transfers were explicitly used to punish judges perceived as inconvenient or insufficiently compliant with executive priorities. That era left behind a constitutional scar, one that the collegium system was designed to prevent from reopening.

Even today, civil society and the Bar often scrutinise transfers involving judges known for:

1. rights-expansive judgments,

2. scrutiny of executive action,

3. or dissenting opinions in sensitive cases.

While not every transfer is punitive, the absence of transparency fuels suspicion, and suspicion itself damages institutional credibility.

In this context, Justice Bhuyan’s categorical formulation no government say, is as much about optics and trust as it is about legal power.

Judicial Independence as Part of the Basic Structure

The doctrine of basic structure, propounded in Kesavananda Bharati v. State of Kerala (1973), has repeatedly recognised judicial independence as a non-negotiable constitutional value.

In L. Chandra Kumar v. Union of India (1997), the Supreme Court reaffirmed that judicial review and judicial independence are integral to the basic structure. Any executive control over transfers would directly infringe this guarantee.

If the executive were permitted even a marginal decisive role in judicial transfers, it would enable structural influence over the judiciary, something the basic structure doctrine expressly forbids.

Justice Bhuyan’s statement thus aligns with basic structure jurisprudence, not personal opinion.

The Collegium System: Imperfect but Constitutionally Necessary

Critics often argue that the collegium system lacks transparency and accountability. These critiques are not unfounded. However, constitutional analysis requires distinguishing between reform and replacement.

The Supreme Court in the NJAC case (Supreme Court Advocates-on-Record Association v. Union of India, (2015) 5 SCC 1) struck down the National Judicial Appointments Commission precisely because it gave the executive an equal voice, thereby breaching judicial independence.

The Court made it clear: executive participation beyond consultation is unconstitutional.

Justice Bhuyan’s statement must be read in this backdrop. Until a constitutionally valid alternative emerges, one that does not dilute judicial primacy, internal judicial control over transfers remains the least unconstitutional option.

Transparency Without Executive Control: The Middle Path

Acknowledging that transfers are an internal judicial matter does not mean endorsing opacity. The judiciary owes accountability to the public, not to the executive.

Reforms could include:

1. clearer articulation of reasons (without naming sensitive intelligence),

2. institutional guidelines on transfer frequency,

3. greater role of collective judicial bodies,

4. and post-transfer disclosures to the Bar.

What must remain non-negotiable is the exclusion of executive discretion.

Why This Moment Matters

Justice Ujjal Bhuyan’s statement comes at a time when democratic institutions globally are under strain. Across jurisdictions, executive capture of courts often begins not with removals, but with appointments, transfers, and promotions.

India’s Constitution anticipated this risk. That is why judicial independence was fortified through interpretation, not text alone.

To allow the government a “say” in transfers would be to reopen a constitutional door deliberately sealed by decades of jurisprudence.

Transfers as a Constitutional Trust

The transfer of judges is not an administrative convenience; it is a constitutional trust. It shapes judicial behaviour, public confidence, and the balance of power between institutions.

Justice Ujjal Bhuyan’s assertion reaffirms a hard-earned constitutional consensus: the executive governs the country, but it does not govern the courts.

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In preserving judicial primacy over transfers, the Constitution protects not judges as individuals, but citizens as rights-holders. For when judges are free from fear of displacement, the law itself remains fearless.

An up-and-coming legal platform would do well to recognise this moment not as commentary, but as constitutional pedagogy, reminding the nation that the independence of the judiciary is preserved not in grand judgments alone, but in the quiet integrity of its internal processes.

About the Author:

Shraddha Sunil is a legal researcher and advocate deeply committed to advancing human rights and constitutional justice in India. She holds an LL.M. in Human Rights, where her dissertation examined India’s inconsistency with its treaty obligations under CEDAW, focusing on the non-criminalisation of marital rape and the State’s positive obligations under international law. Her academic and professional work reflects a strong intersectional approach, engaging with issues of gender, surveillance, and digital rights.

• NB.: The author certifies that the work is original. Views expressed are personal.