High Court judges cannot function effectively under the constant fear of transfers, Supreme Court Justice Manmohan said on Saturday.
The judge said that such an atmosphere undermines the independence of judiciary and called for a deeper examination of the collegium system governing appointments and transfers of judges.
“A High Court judge can only function when he has full power and full authority. He cannot be scared of a transfer," he said.
Justice Manmohan was speaking at the National Conference organised by the Supreme Court Bar Association (SCBA). on the theme “Reimagining Judicial Governance: Strengthening Institutions for Democratic Justice".
“I think we need to debate the collegium system threadbare," he said.
He stressed that judicial authority must be accompanied by security of tenure.
“You cannot emasculate a High Court judge by putting the fear of transfer at him.”
Justice Manmohan also pointed to a broader culture of mistrust within the appointments process and questioned the multiple layers of scrutiny applied to recommendations made by High Court Chief Justices.
“If the Chief Justice of a State has recommended one person as a judge, why should there be any debate about that name? This mistrust in the system is costing us dearly,” he opined.
The judge also flagged concerns over the quality of assistance available to courts and questioned whether government panel lawyers are appointed on merit.
“Are panel counsels being recruited on actual merit? Whether it is A party or B party or C… the panel lawyers are virtually recruited on party lines, unfortunately,” the judge lamented.
He said this has a direct bearing on adjudication in complex matters, with judges often forced to rely on their own research in the absence of effective assistance.
Justice Manmohan also criticised the government’s functioning as the largest litigant and said that a large number of appeals filed by the government is due to institutional fear rather than legal necessity.
He said that government officers, even when convinced that no appeal is required, often choose to litigate defensively due to the risk of scrutiny by investigative agencies, and this increases burden on courts.