Judicial Transfers and the Independence of the High Court

In the democratic landscape of India, the role of the judiciary has been a subject of much debate. The system, an unelected institution, does not represent the will of the people directly, yet it holds significant power in shaping the nation's laws and policies. This article explores instances of Judicial Activism and Overreach, shedding light on the complexities and controversies surrounding the Indian judiciary.

Judicial Activism, a philosophy advocating for courts to go beyond the law to consider broader societal implications, has been a defining characteristic of the Indian judiciary. Notable examples include the Vishaka vs State of Rajasthan (1997) case, which recognized sexual harassment at the workplace as a violation of fundamental rights, and the PIL (Public Interest Litigation) that resulted in a ban on the sale of liquor within 500m of any national or state highway, an administrative matter.

However, this proactive approach has also been criticized as Judicial Overreach, where judges take on legislative or executive roles. Instances of this include the Supreme Court's Order on Firecrackers Ban (2018), the Liquor Ban on Highways (2016), and the Arun Gopal v. Union of India (2017) case, which fixed timings of setting off fireworks during Diwali and banned those that are not environment friendly, with no legal basis for these restrictions.

On the other hand, Judicial Evasion, or the avoidance of ruling on critical issues, has also been a concern. Delayed hearings on the validity of anonymous political donations occurred in the Electoral Bonds Case, despite concerns of transparency and corruption.

The issue of transfers within the judiciary has also been a contentious topic. Critics argue that transfers are used as tools for punishing judges for their judgments against the ruling government. The former CJI Justice A.S. Anand suggested that judges must exercise judicial restraint to avoid judicial activism becoming judicial adventurism.

To address these concerns, suggestions include enhancing transparency in the transfer process, distinguishing administrative necessity from punitive action, implementing a minimum tenure policy, and establishing a Judicial Appointments and Transfers Commission.

Moreover, the authority responsible for reviewing the necessity and fairness of judicial retraining for High Court judges lies primarily within the judiciary itself. Recommendations for better transparency in this process include formalizing clear guidelines, independent oversight, and public disclosure to enhance accountability.

Notable cases such as the Sabarimala Review Petition (2018) and the Farm Laws Case (2021), where the Supreme Court formed a committee instead of deciding the constitutional validity of the laws, raise questions about the balance between judicial activism and judicial restraint.

The Kesavananda Bharati vs State of Kerala (1973) case established the Basic Structure Doctrine to protect fundamental features of the Constitution. However, frequent intervention by the judiciary in the affairs of the first two organs can result in policy paralysis.

In conclusion, the Indian judiciary, while playing a crucial role in upholding the rule of law and protecting fundamental rights, faces challenges in maintaining a balance between judicial activism and overreach. It is essential to continue the dialogue on these issues to ensure a more transparent, accountable, and effective judicial system.