S.P GUPTA V.

UOI, AIR 1982 SC 1991: A CASE STUDY

MANIPAL UNIVERSITY JAIPUR

SCHOOL OF LAW

Submitted To: Submitted By:

Mrs. POOJA SINGH Rohit Bishnoi
161401079
BA.LL.B (Hons)
Semester - III
Section - B

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 CERTIFICATE

This is to certify that the project entitled, A study on law relating to risk prima facie passes
with property submitted by ROHIT BISHNOI in partial fulfilment of the requirement for
the award of BA.LLB (HONOURS) at the MANIPAL UNIVERSITY JAIPUR is an
authentic work carried out by her under my supervision and guidance.

To the best of my knowledge, the matter embodied in the project has not been submitted to
any other University / Institute for the award of any Degree or Diploma in the year 2017-
2018.

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 ACKNOWLEDGEMENT

In performing our assignment, I had to take the help and guidance of some respected persons
who deserve our greatest gratitude. The completion of this assignment gives me much
pleasure. I would like to show our gratitude to Mrs. POOJA SINGH, Course Instructor, and
Manipal University Jaipur for giving us good guideline for assignment throughout numerous
consultations. I would also like to expand our deepest gratitude to all those who have directly
and indirectly guided us in writing this assignment.

In addition, a thank you to the Professor who introduced us to the Methodology of work and
whose passion for the underlying structures had lasting effect. I also thank the Manipal
University Jaipur for the consent to include the copyrighted pictures as a part of our paper.

Many people, especially our classmates and team members itself have made valuable
comment suggestions on this proposal which gave us inspiration to improve our assignment. I
thank all the people for their help directly and indirectly to complete our assignment.

ROHIT BISHNOI

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 Table of Contents

CERTIFICATE ..................................................................................................................................... 2
ACKNOWLEDGEMENT .................................................................................................................... 3
INTRODUCTION................................................................................................................................. 5
Case Summary and Outcome .............................................................................................................. 7
Facts ....................................................................................................................................................... 7
Decision Overview ................................................................................................................................. 7
Judicial Appointment Methods............................................................................................................ 8
WEBLIOGRAPHY............................................................................................................................. 10

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 INTRODUCTION

Famous case, S.P. Gupta vs. Union of India [1] 1982, this is popularly known as Judges
Transfer case. The Supreme Court unanimously agreed with the meaning of the term
consultation in Article 212, 22, 124(1)* of the constitution. In the above, Supreme Court
Advocates on Record case, the Supreme Court held that the Chief Justice shall have to
consult two other senior most Judges of the Supreme Court before sending his opinion. In this
Judgment, the Supreme Court laid down certain guidelines.

a) Individual initiation of high constitutional functionaries in the matter of appointment of

Judges reduced to minimum. It gives privacy to the Chief Justice of India but puts a check on
him to consult at least two of his senior most colleagues.

b) Constitutional functionaries must act collectively in Judicial Appointments.

c) Appointment of Chief Justice of India by seniority only.

d) No Judge can be appointment by the Union Government without Consulting the Chief
Justice of India.

The Supreme Court, while upholding the Independence of Judiciary in appointment of Judges
of the Supreme Court and High Court, on the basis of the term consultation under Article
217(1)* and 222 of the constitution in the formation of the opinion of the Chief Justice of
India after consultation has to be sent to the President. Two senior most Judges of the Apex
Court have to assist the Chief Justice of India to form an opinion. However, the question
regarding political interference in the matter of appointment of Supreme Court and High
Court Judges, still exists and after, the court has been striving to maintain the Independence.
But in 93rd Constitutional Amendment Bill of 2003, it will provide for establishment of
National Judicial Commission. The provisions of the 93rd Amendment are featured as
follows.

1) Constitution of the commission to be chaired by the Honorable Chief Justice of India with
two senior most Judges of the Supreme Court, Minister In-charge of law and Justice, Union
of India , and an eminent citizen to be nominated by the President, as its member.

2) Powers of the Commission regarding appointment of the Supreme Court and High Court
Judges, and matters incidental thereto.
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[1] AIR 1982 SC 149
* Article 212 Courts not to inquire into proceedings of the Legislature.
* Article 22 Protection against arrest and detention in certain cases.
* Article 217 Appointment and conditions of the office of a Judge of High Court.

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3) Powers of the Commission to take action in cases of complaints against Judges and the
matters incidental thereto.

4) Association of the Chief Minister of the concerned state in the matter of appointment of
High Court Judges.

The Legislature has been conferred with powers for the constitution to enact laws at the same
time, the constitution also provides for certain rights to the citizens. The Independence of
Judiciary has been provided by the constitution to maintain of Judiciary has been provided by
the constitution to maintain balance between the legislative-powers and the rights of the
citizens. The legislature must understand that it cannot indirectly interfere with the
Independence of the Judiciary and its functioning, which is against the spirit of the
constitution.

The Government of India through the 93rd Amendment Bill proposes to constitute a National
Judicial Commission in view of the allegations of corruption and misuse of official position,
being mode against sitting Judges of different High Courts. The Bill (93rd amendment)
provides to deal with the matters relating to Appointment, Transfer of Judges and inquiries
into the complaints against the Judges and other incidental matters. The Government of India
proposes to establish the National Judicial Commission, so that the Commission comprising
eminent persons without any Executive or Political influences. But the Judiciary is expressing
a grouse by saying that under the pretext of constituting National Judicial Commission, The
Executive is trying to interfere with the Independence of the Judiciary and the so-called
nominated persons in the National Judicial Commission, pliable to the Executive and may
Act according to the wishes of the Executive. But the Independence of the Judiciary as
contemplated in the constitution is without any interference in any manner what so ever. The
Independence of Judiciary is a basic structure of the constitution as held by the Supreme
Court in Kesavananda Bharathi Vs State of Kerala [2].

Visualizing the present situation, the Judiciary in India, which is the protector and guarantor
of Fundamental Rights of the citizens, is to be allowed to function independently without any
interference. In this regard, a mute question raises that whether the action of the Executive in
respect of constitution of the courts, appointment of Judges, laying down their conditions of
service including salary, age of retirement etc., whether this amounts to interfering with the
Independence of Judiciary while the Judges are not answerable to any Superior Authority.
While exercising their power of delivering Judgments in the course of administration of
Justice? However once an office or a post or an Institution is created or constituted, it must be
placed under the control of some authority; so that the actions of the persons employed can be
supervised or controlled. But, in Indian Constitution, once the courts are constituted and the
Judges are appointed, no external influence over exerted or imposed in the course of
deliverance of Judgments, either from the legislature or from the executive. But on the other
hand, it is for the Judges themselves, who are allured by the influences corruption, malice,

[2] AIR 1973 SC 1461

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bias, favor etc., because the Judges are also human beings. In India, the Judges are influenced
only by their vices or weaknesses from among themselves and no external inferences ever
entered into the citadels of Independence of Judiciary.

Case Summary and Outcome

The correspondence exchanged between the Law Minister, the Chief Justice of Delhi, and the
Chief Justice of India on the appointment and transfer of judges was not privileged and was
therefore not protected from disclosure under the law. A particular document regarding the
affairs of the state is only immune from disclosure when disclosure is clearly contrary to
public interest.

Facts
The foregoing case dealt with a number of petitions involving important constitutional
questions regarding the appointment and transfer of judges and the independence of judiciary.
One of the issues raised was regarding the validity of Central Government orders on the non-
appointment of two judges. To establish this claim, the petitioners sought the disclosure of
correspondence between the Law Minister, the Chief Justice of Delhi, and the Chief Justice
of India.
However, the state claimed privilege against disclosure of these documents under article
74(2) of the Indian Constitution, which provides that the advice tendered by the Council of
Ministers to the President cannot be inquired into in any court, and section 123 of the Indian
Evidence Act, which provides that evidence derived from unpublished official records on
state affairs cannot be given without the permission of the head of the concerned department.
Section 162 of the Evidence Act provides that a witness summoned to produce a document
before a court must do so, and the court will decide upon any objection to this.

Decision Overview
In a case decided by Justice Bhagwati, the Supreme Court of India rejected the governments
claim for protection against disclosure and directed the Union of India to disclose the
documents containing the correspondence. An open and effective participatory democracy
requires accountability and access to information by the public about the functioning of the
government. Exposure to the public gaze in an open government will ensure a clean and
health administration and is a powerful check against oppression, corruption, and misuse or
abuse of authority. The concept of an open government is the direct emanation from the right
to know, which is implicit in the right to freedom of speech and expression guaranteed under
Article 19(1) (a) of the Indian Constitution. Therefore, the disclosure of information in regard
to government functioning must be the rule and secrecy the exception, justified only where
the strictest requirement of public interest demands it.
With respect to the contention involving Article 74(2), the Court held that while the advice by
the Council of Ministers to the President would be protected against judicial scrutiny, the
correspondence in this case between the Law Minister, the Chief Justice of Delhi, and the
Chief Justice of India was not protected merely because it was referred to in the advice.

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There are only two grounds on the basis of which the Central Governments decision
regarding appointment and transfer can be challenged: (1) there was no full and effective
consultation between the Central Government and the appropriate authorities, and (2) the
decision was based on irrelevant grounds. The correspondence in question would be relevant
qua both these grounds, which necessitates its disclosure. Public interest lies at the foundation
of the claim for protection under the Evidence Act. Under these considerations, the Court
must decide whether disclosure of a particular document will be contrary to public interest. It
must balance the public interest in fair administration of justice through disclosure with the
public interest sought to be protected by nondisclosure, and then decide if the document
should be protected.
The correspondence in the present case was found not to be protected. It dealt with
appointment and transfer of judges, a matter of great public interest, and its disclosure would
not have been detrimental to public interest. The apprehension of an ill-informed or captious
public or of political criticism were not enough to justify the protection of the
correspondence. After examining the correspondence, the Court decided that the Central
Government order regarding non-appointment was justified.

Judicial Appointment Methods

Judicial Appointments is yet another factor to test the independence of the Judiciary. The best
guarantee for Judicial Independence is the impeccable conduct of the Judge. There are three
methods.

1) Election by Legislature
2) Election by the People
3) Appointment by the Executive.

If a Judge is elected by the legislature, he will tend to be faithful to the political party in the
legislature which elects him. In the second method, the Judges will interpret the laws in such
way as to win for a second term of office. He might be tempted to indulge in / populist
politics. As regards the third method, we know that Mrs. Indira Gandhi appointed Mr. A.N.
Roy as a Chief Justice of India superseding three senior-most Judges. Fortunately, the same
was not followed in appointing the Chief Justice afterwards. When compared to other
methods, this is the best of the worst.

The attention is to be drawn on the attempts mode by the Executive to in texture with
the Independence of jurisprudence. By introducing the 93rd Constitutional Amendment Bill,
2003. It provides for constitution of a National Judicial Commission for appointment of
Judges of the Supreme Court and High Court and other incidental matters. But, under the
provisions of the constitution under Act 124 (1), the President shells appoint the Chief Justice
of India and 26 other Judges of the Supreme Court. However, every Judge of the Supreme
Court and High Court shall be appointed by the President in-consultation with the Chief
Justice of India.

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The term in-consultation with the Chief Justice of India is yet a subject matter of further
explanation. It is a question whether the opinion of the Chief Justice of India is binding on the
President regarding the appointment of other Judges of the Supreme Court and High Court.

The President can also consult others including experts, the Executive or even other Judges of
the Supreme Court. For furnishing information to the President, the Chief Justice of India
consults with at least senior most Judges of Supreme Court which forms collegiums Article
216 of the constitution provides similar procedure for appointment of Chief Justice of High
Court and other Judges.

At this stage under Article 217(1), the President of India consults Chief Justice of India,
Governor of the state, and the Chief Justice of the High Court for appointment of a High
Court Judge. But according to the language used in constitution under Article 124(1), 217(1),
the President is required to consult legal experts only. Prior to the Judgment in Supreme
Court advocates on Record Association vs. Union of India [1]. It was interpreted in thief
case, that the President was not bound to Act in accordance with the opinion of Chief Justice
of India. The meaning of the term Consultation came up for consideration before the
Supreme Court in Union of India vs. Sankal Chand Seth [2]. It was held that the word
consultation means full and effective consultation. For this purpose it is necessary that the
three constitutional functionaries must have, for its consideration, full and identical facts on
the basis of which they would be able to take a decision. The President has a right to defer
from them and take a contrary view. Consultation does not mean concurrence and the
President was not bound by it.2

2
[1] AIR 1994 SC 268

[2] AIR 1977 SC 2328

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 WEBLIOGRAPHY

1. https://globalfreedomofexpression.columbia.edu/cases/s-p-gupta-v-union-of-india/
2. http://llmprojects.blogspot.in/2013/07/judges-transfer-case-sp-gupta-vs-union.html
3. http://www.lawman.net.in/2012/03/sp-gupta-v-uoi-case-detail.html

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