# SP. GUPTA & ORS. ETC. ETC v. UNION OF INDIA & ORS. ETC. ETC

- **Citation:** [1982] 2 S.C.R. 365
- **Court:** Supreme Court of India
- **Decided:** 1981-12-28
- **Case number:** Transferred Case Nos. 19, 20, 21, A 22, 2, 6~ and 24 of 1981
- **Bench:** P.N. Bhagwati, A.C. Gupta, S. MURTAZA FAZAL Au V.D. TULZAPURKAR, D.A. Desai, R.S. Pathak, E.S. Venkataramiah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sp-gupta-ors-etc-etc-v-union-of-india-ors-etc-etc-8920
- **Pages:** 1093

## Headnote

365
1, Independence of Judiciary, scope and limitations of the concept-Basic.
structure of the Constitution-Constitution of India, 1950, Preamble, Articles 124,
216, 217 222 and 224.
2. Public interest litigation-Right to challenge executive order/action os
affecting the independence of judiciary by persons other than the aggrieved partyLocus standi of lawyers to raise issues like fixation of strength of Judges in each
High Court, appointment and re-appointments, of addtiona/ Judges, short term
appointments, transfer, etc. by means of petitions either under Article 226 or 32
of the Constitution of India, explained.
3. Public law-Protection against
disclosure
of documents claiming
privilege-Evidence Act, sections 123 and 162, difference in-Whether the Union
of India could claim privilege in respect of the correspondence between the high
dignitaries which formed the opinion regarding transfer of Judges/gram of extension to the additional Judges-Constitution of India, Articles 19(1) (a), 14, 217
and 224.
4. Freedom of the press-Disc11ssions based on the disclosed materials on
the grounds on which recommendations were made to the President for not granting extension to the additional Judges, when the matter is sub-judice tan/amounts
'\
to trial by press, not authorised by law-Constitution of India, Articles 19( /)(a)
and 32.
5.
Consent to be appointed to any of the three preferred High Courts, as a
J11dge, by the proposed appointee and the sitting additional Judges-Validity of
such a circular letter requiring consent, dated March
18, 1981, of the Law
Minister-Constitution of India, 1950, Articles 217 and 222.
A
B
c
D
E
F
G
6.
Constitution of India, Articles 216, 224, and 226-Appointm~nt of High
H
Court Ju1ge<-Difference between sitti~.~ flcdifi!ional Jl!d!{e·I q~rf proposed appointee
for initial recruitment. explained.
366
SUPRBMB COURT REPORTS
(1982] 2 s.c.R'
A
7. Transfer of a Judge from one High Court to another-Constitution of
B
c
India, 1950, Articles 222-Notification dated January 19, 1981 issued by the
President of India transferring Mr. K.B.N. Singh, Chief Justice of Patna to Madras,
validity of.
8. Constilution of India, Article 222(1)-Legal effect of an order of transfer
of a Judge from one High Court to another.
9. High Courts-Inter se-status-All High Courts have same
statusConstitution of India, Articles 224 ( 4), 139A (2), 214 (2) & ( 3) before deletion in
1956, 222, 366(14) 376, Schedule VII List I Entry 78, discussed.
10. Constitution of India, Article 222 (])-Power to transfer a Judge,
nature and extent of use, explained.
11. Constitution of India, Article 222, power to formulate general po/icy of
transfers of Judges or Chief Justices from one High Court to another-Article 222
vests such power.
12. Constitution of India, Article 222 (/)-The word "Chief Justice" is
included in the expression "a Judge of the High Court"-Transfer of Chief Justice
D
of High Court from one State to another, therefore, falls within the purview or
Article 222( 1) of the Constitution.
13. Constitution of India, Articles 215, 216 and Proviso (c) to Arlicle 217
(1)-Whether Judges of lhe High Court constitute a single All India cadre for
purpose of appointment and transfer.
E
14. Constitution of India, Article 222-Proposal for transfer of a Judge or
F
G
H
Chief Justice of a High Court-The provisions of Article 222 must necessarily be
complied wir!z irrespective of the fact which authority initiates the proposal.
15. Constitution of India, Article 222 (2)-Transfer of a High Court Judge/
Chief Justice-Simultaneous fixation of compensatory allowance-Transfer order
and an order fixing compensatory allowance need not be simultaneous.
16. Constitution of India, Article 217 (/} proviso (e) and Article 222Distinction between "transfer" and "appointment"-Taking afresh oath by a trans·
feree Judge does not make a transfer a fresh appoil1tment.
· 17. Onus probandi-Constitution of India, Article 222 (1) read with Evi·
dence Act, sections JOI to 104-0nus

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A.
SP. GUPTA & ORS. ETC. ETC.
v.
UNION OF INDIA & ORS. ETC. ETC.
December 28, 1981
[ P.N. BHAGWATI, A.C. GUPTA, S. MURTAZA FAZAL Au
V.D. TULZAPURKAR, D.A. DESAI, R.S. PATHAK AND
E.S. VENKATARAMIAH, JJ. ]
365
1, Independence of Judiciary, scope and limitations of the concept-Basic.
structure of the Constitution-Constitution of India, 1950, Preamble, Articles 124,
216, 217 222 and 224.
2. Public interest litigation-Right to challenge executive order/action os
affecting the independence of judiciary by persons other than the aggrieved partyLocus standi of lawyers to raise issues like fixation of strength of Judges in each
High Court, appointment and re-appointments, of addtiona/ Judges, short term
appointments, transfer, etc. by means of petitions either under Article 226 or 32
of the Constitution of India, explained.
3. Public law-Protection against
disclosure
of documents claiming
privilege-Evidence Act, sections 123 and 162, difference in-Whether the Union
of India could claim privilege in respect of the correspondence between the high
dignitaries which formed the opinion regarding transfer of Judges/gram of extension to the additional Judges-Constitution of India, Articles 19(1) (a), 14, 217
and 224.
4. Freedom of the press-Disc11ssions based on the disclosed materials on
the grounds on which recommendations were made to the President for not granting extension to the additional Judges, when the matter is sub-judice tan/amounts
'\
to trial by press, not authorised by law-Constitution of India, Articles 19( /)(a)
and 32.
5.
Consent to be appointed to any of the three preferred High Courts, as a
J11dge, by the proposed appointee and the sitting additional Judges-Validity of
such a circular letter requiring consent, dated March
18, 1981, of the Law
Minister-Constitution of India, 1950, Articles 217 and 222.
A
B
c
D
E
F
G
6.
Constitution of India, Articles 216, 224, and 226-Appointm~nt of High
H
Court Ju1ge<-Difference between sitti~.~ flcdifi!ional Jl!d!{e·I q~rf proposed appointee
for initial recruitment. explained.
366
SUPRBMB COURT REPORTS
(1982] 2 s.c.R'
A
7. Transfer of a Judge from one High Court to another-Constitution of
B
c
India, 1950, Articles 222-Notification dated January 19, 1981 issued by the
President of India transferring Mr. K.B.N. Singh, Chief Justice of Patna to Madras,
validity of.
8. Constilution of India, Article 222(1)-Legal effect of an order of transfer
of a Judge from one High Court to another.
9. High Courts-Inter se-status-All High Courts have same
statusConstitution of India, Articles 224 ( 4), 139A (2), 214 (2) & ( 3) before deletion in
1956, 222, 366(14) 376, Schedule VII List I Entry 78, discussed.
10. Constitution of India, Article 222 (])-Power to transfer a Judge,
nature and extent of use, explained.
11. Constitution of India, Article 222, power to formulate general po/icy of
transfers of Judges or Chief Justices from one High Court to another-Article 222
vests such power.
12. Constitution of India, Article 222 (/)-The word "Chief Justice" is
included in the expression "a Judge of the High Court"-Transfer of Chief Justice
D
of High Court from one State to another, therefore, falls within the purview or
Article 222( 1) of the Constitution.
13. Constitution of India, Articles 215, 216 and Proviso (c) to Arlicle 217
(1)-Whether Judges of lhe High Court constitute a single All India cadre for
purpose of appointment and transfer.
E
14. Constitution of India, Article 222-Proposal for transfer of a Judge or
F
G
H
Chief Justice of a High Court-The provisions of Article 222 must necessarily be
complied wir!z irrespective of the fact which authority initiates the proposal.
15. Constitution of India, Article 222 (2)-Transfer of a High Court Judge/
Chief Justice-Simultaneous fixation of compensatory allowance-Transfer order
and an order fixing compensatory allowance need not be simultaneous.
16. Constitution of India, Article 217 (/} proviso (e) and Article 222Distinction between "transfer" and "appointment"-Taking afresh oath by a trans·
feree Judge does not make a transfer a fresh appoil1tment.
· 17. Onus probandi-Constitution of India, Article 222 (1) read with Evi·
dence Act, sections JOI to 104-0nus of justifying transfer of a Judge is upon the
State.
18. Constitution of India, Article 222 (1)-Transfer of a Judge-Advice
tendered by the Chief Justice of India must, ordinarily, be accepted by the President of India.
19. Transfer af a Judge, on 'mere allegations of misbehaviour or incapacity
whic~ fqrm, subject-matter of gq(i<m under Article 218 read with Article 224-
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S.P. GUPTA v. UNION
367
Transfer of a Judge under the guise of Article 222 is impermissible and liable to
A
be quashed.
20. Transfer of a Judge, exercise of power under Article 222 of the Constitution, should be in public interest and not by way of punishment-The word
"consent" in Article 222 is a case of deliberate omission and
not casus
omissus.
21. Interpretation of statutes and/or constitutional provi.lions-Duty of the
Supreme Court-Constitution of India, Article 141 and Preamble.
22. Interpretation of Constitution-Preamble to the Constitution-Court
must not bend language of Constitution according to its will.
23. Interpretation of statutes, when language is clear doctrine of casus
omissus will cease to be applicable.
24. Interpretation of statutes-External aid, marginal note, reference to
legislative debate, etc. as aid to interpretation of uctions, admissibility of.
25. Interpretation of Constitution, rules regarding-Power conferred by
Constitution upon authority cannot be denied on grounds of its misuse-Constitution
of India, 1950.
26. Interpretation of Constitution-Constitutional conventions scope and
0
c
D
~
its use as an aid to interpretation-Constitution of India.
\
27. Precedence-Judicial precedence-Value of-Ratio and not the conE
clusion which binds-Constitution of India, Article 141.
28. Constitution of High Courts-Strength of Judges-Whether a writ af
mandamus can be issued against Union of India for fixing the strength of Judges
in each High Court-Constitution of India, Articles 216, 32, 74 and 226, scope a/-
Advice under Article 74 in the matter of appointment of Judges is binding.
29. Constitution of India, Articles 224 (2), 227 (2) and 274 (2)-Additional
Judges, their status and functions, explained.
30. Appointment of Additional Judges-Conditions precedent-Power of
President when can be exercised-Constitution of India, Articles 217 and 224.
31. Appointment of Judges-Appointment must be made by the Central
Government only after effective consultation as required by Articles 124 and 227
read with 74-Whether the opinion of the Chief Justice of India has a
primacy.
F
G
32. Appointment of additional Judges-Procedure regarding extension of
H
tenure-Initiation well in time and in advance of proposals of recommendations
or otherwise is a must-Constitution of India, Article 217 and 224.
. ..
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B
c
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su-Pilllt.til couRt REPokts
[1982] 2 s.c.R..
33.
Words
and phrases-"Consultation" -·Meaning
of-Consultation
should be meaningful, purposeful
and result-oriented-Constitution,
Articles,
217, 222 and 224.
34. Additional Judges-Extension of term-Matters to be consideredAppointment of Judges to High Court being purely an executive function of
President, Court cannot declare a sitting additional Judge to be deemed to have
become permanent or direct the President to make him permanent.
35. Non-extension of the term of office of Mr. S.N. Kumar as an additional
Judge of the Delhi High Court, validity of
36. Constitution of India, Articles 217 and 224-Additional Judges, a right
to be considered for fresh appointment-Short term extensions, propriety of justiciability of denial to grant extension.
37. Additional Judge-Non-extension of his term-Principle of natural
justice-There is no necessity to give him opportunity of hearing.
38. Additional JudJ;e of a High Court-Non-extension of the term of the
D
Judge as additional Judge of the High Court-Integrity of the Judge doubted by the
Chief Justice of High Court as disclosed before the Court--Judge ready to establish his innocence :and seeking opportunity from Supreme Court to do so-Supreme
Court cannot grant such opportunity in view of its restricted jurisdiction in such
cases-Constitution of India, Articles 32, 226 and I 39A jurisdiction of the Supreme
Court, explained.
E
39. Appointment of High Court Judges-Initial recruitment-Non-appointF
G
H
ment of a person-Non-appointee aggrieved person has no standing and no writ
of mandamus will issue at his instance.
40. CollStitution of India, Articles 226 and 32-Courts have no powers to
decide questions of pure academic interest.
41. Constitution of India, Article 136-Powers of the Supreme Court to
grant Special Leave Petition-High Court rejecring petition under Article 226 in
limine on the ground that the petitioner was unable to produce documents beyond
his reach on which he wanted 10 place reliance-Rejection of the petition if invalid
S.L.P. could be granted.
42. Constitution o( India, Article 226-Writ proceedings-Pleadings in the
form of affidavits, counter-affidavits, rejoinder-affidavits, etc. filed by the parties
to a writ petition also partakes of the character oi the evidence in the
case.
On March 18, 1981, Honourable Sri P. Shivshankar, Minister for Law,
Justice and Company Affairs, Government of India addressed a circular letter to
the Governor of Punjab and the Chief Ministers of all the States, except the
,,
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S.P. GuPl·A v. UNioN
169
North-Eastern States, requesting them to obtain the consent of additional Judges
serving in the High Courts to their appointment as permanent Judges of other
High Courts. Such consent was also required from persons who had already
been proposed or may in the future to be proposed for initial appointment.
The additional Judges, the proposed and the would-be-proposed for initial appointment were requested to indicate three High Courts, in order of preference, to
which they would prefer to be appointed. It was made clear by the said circular
letter that the furnishing of the consent or the indication of a prefereJilce would
not imply any commitment on the part of Government either in regard to their
appointment or in regard to accommodation in accordance witll the preferences
given.
A
B
Prior to, as well as after the issuance of the aforesaid circular letter by the
Union Law Minister on March 18, 1981, in several High Courts, including High
Courts of Allahabad, Bombay and Delhi, the President of India acting under
C
Article 224 granted short-term extensions for three months, six months or a year
to sitting additional Judges whose initial terms were about to expire.
Relying on
the letter dated May 7, 1981 of the Chief Justice of Delhi High Court, Mr. Justice
S.N. Kumar, Additional Judge of the Delhi High Court was finally not given
further appointment. Similarly, Mr. Justice O.N. Vohra. Additional Judge
of the same High Court was also not
re-appointed after the expiry of
his tenure of appointment.
D
Earlier, in exercise of the power conferred by Ar tide 222 (!)of the Constitution the President of India by his order dated January 19, 1981 transferred
Mr. Justice M.M. Ismail, the then Chief Justice of the Madras High Court as ·
Chief Justice of the Kerala High Court and also Mr. Justice K.B.N. Singh,
Chief fostice of Patna High Court as Chief Justice of the Madras High
E
Court with effect from the date they assumed charges of their respective
offices.
Since such short-term ext~nsions became a frequent phenomenon, particularly after the issuance of the circular letter dated March 18, 1981, it created
great consternation in the
legal
and
judicial circles in the country.
These two actions of the Union
Government, namely, the issuance of
the circular letter dated March 18, 1981 and the grant of short-term extensions
led to legal action being taken challenging their constitutional validity by individual lawyers, by Bar Associations in a representative capacity. Having regard
to their high positions as a constitutional functionary all the sitting Additional
Judges in various High Courts, though agitated by these two actions of the
Union Government understandably felt reluctant to adopt legal steps against
said circular letter as well as the short-term extensions. Mr. Justice O.N. Vohra,
Additional Judge of the Delhi High Court, did not join issue when he was
dropped outright, while Mr. Justice S.N. Kumar as a party-respondent to the
Writ Petition filed in Delhi High Court actively supported the challenge to these
actions and also the further action of dropping him outright during the pendency
of the petition.
Though the transfer order dated January 19, 1981 in respect of the two
Chief Justices was also challenged, Mr. Justice M.M. Ismail refused to take part
F
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SUPREME COURT REPORTS
(1982] 2 s.c.R.
A
as a party-respondent and chose to resign his high office, while Mr. Justice
K.B.N. Singh actively opposed the orders of transfer by transposing himself as
petitioner No. 3 to the petition.
B
c
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Details of the several cases filed were :
(i) Transferred case No. 19 of 1981 was filed by Sri S.P. Gupta, an
Advocate of the High Court at Allahabad. While challenging the validity of the
circular letter of March 18, 1981 it was contended (a) that the President has failed
to appoint the necessary number of permanent and additional Judges of the High
Court of Allahabad in accordance with Article 216 and clause (1) of Article 224 of
the Constitution; (b) the appointments of some of the additional Judges of the
High Court for short-terms of six months only was bad and they shouid have
been appointed as permanent Judges, and (c) a declaration should be issued to the
effect that three Additional Judges, Mr. Justice Murali Dhar, Mr. Justice
A.N. Verma, Mr. Justice N. N. Mittal be deemed to have been appointed as
permanent Judges.
(ii) Transferred case No. 20 of 1981 was filed by Sri V.M. Tarkunde, a
senior Advocate of the Supreme Court, as a Writ Petition in the High Court of
Delhi assailing the circular and the appointments of three Additional Judges,
Sri O.N. Vohra, Sri S.N. Kumar and Sri S.B. Wad for a further period of three
months only, It was prayed that the posts of additional Judges in the several
High Courts be converted into permanent posts.
(iii) In Transfer Case No. 21 of 1981, Shri J. L. Kalra and a few other
advocates filed as a Writ Petition in the High Court of Delhi, it was prayed that
a mandamus be issued to the Union Government to create an adequate
number of posts of permanent and additional Judges and to make appointments
to those posts.
(iv) Transferred Case No. 22 of 1981, was filed as a Writ Petition in the
High Court of Bombay by four advocates, Sri Iqbal M. Chagla, Sri C.R. Dalvi,
Sri M.A. Rana and Sri Sarab K.G. Modi questioning the validity of the circular
dated March 18, 1981 and have prayed inter alia for a declaration that the circular
letter is ultra vires and void and that the Union Government should be directed
not to act on the consent conveyed by the additional Judges.
These four cases constitute a group raising substantially common points
of consideration arising out of interpretation of Articles 124, 216, 217 and 224
of the Constitution.
(v) The Second group also constituted of four cases led by Writ Petition
No. 274 of 1981 filed by Miss Lily Thomas an Advocate practising in the
Supreme Court of India, under Article 32 of the Constitution. She challenged
the transfer of Sri M.M. Ismail, Chief Justice of the Madras High Court, to
Kerala High Court as Chief Justice, Sri M.M. Ismail filed an affidavit stating
that he has decided not to proceed to Kerala, nor to challenge the validity of the
order of the President transferring him but to proceed on leave preparatory to
retirement. Shri M.M. Ismail has resigned since.
•
S.P. GUPTA v. UNION
371
(vi) Transfer Case No. 2 of 1981 was filed as a Writ Petition in the High
A
Court of Madras by one Mr. A Rajappa, an Advocate, praying for a declaration
that the order of the President transferring Sri M.M. Ismail from the High Court
of Madras and Sri K.B.N. Singh, Chief Justice of the Patna High Court to
Madras High Court was void.
(vii) Transferred Case No. 6 of 1981 was another Writ Petition filed by
Sri P. Subramaniam praying for similar reliefs as Sri Rajappa in Transfer Case
8
No. 2 of 1981.
(viii) Two Advocates Sri D.N. Pandey and Sri Thakur Ramapathi Sinha,
filed Transferred Case No. 24 of 1981 in the High Court at Patna challeging the
order of transfer of Sri M.M. Ismail from the High Court of Madras to the High
Court of Kerala and of Sri K.B.N. Singh from the High Court at Patna to the
High Court of Madras. During the pendency of this Writ Petition, Sri K.B.N.
Singh, who
has been impleaded as a respondent was transposed as a
petitioner; and
(ix) Special Leave Petition No. 1509 of 1981 filed by Ripudaman Prasad
Sinha is directed against an order passed by the . High Court at Patna rejecting
in limine the Writ Petition of the petitioner challenging the constitutional validity
of the order of transfer of Chief Jusctice K.B.N. Singh, on the ground that he
had not been able to produce the documents on which he wanted to place
reliance.
_,}..
Several contentions raised in these Writ Petitions are :
(i) The actions of the Union Government forming part of a scheme constitute a direct attack on the independence of judiciary, which is a basic feature
.....
of a constitution .
(ii) The circular dated March 18, 1981, seeks to effect, in substance and
reality, a mass transfer of sitting ·Additional Judges as also the proposed
appointees based on a policy decision unilaterally taken by the Law Minister/
Union Government and as such violates the requirements of Article 222(1) of
the Constitution as laid down by the Supreme Court in Sankal Chand's case
[1978] 1 S.C.R. 423 in as much as such mass transfers on alleged grounds of
policy are outside its scope and further it reduces the efficacy of the consultation with the Chief Justice of India contemplated therein to a meaningless
formality by presenting a transfer proposal to him as a fait accompli, the same
being backed by the consent of the concerned judge or the proposed appointee
to his transfer.
(iii) The circular letter was without the authority of law.
(iv) The circular letter, as far as the sitting of Additional Judges are concerned, contains by implication a threat to them (a) that if they do not give their
consent they will not be either continued as Additional Judges or confirmed as
Permanent Judgos: (b) that the Government would watch their performance in
matters to which the Government, Government bodies and Corporations are
c
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SUPREME COORT REPORTS
( 1982) 2 s.c.R
parties before them and would appoint them as Permanent Judges only if they
were found to toe the Government line and as such it constitutes gross interference with administration of justice and is subversive of judicial independence.
(v) The circular letter seeks to obtain consent under threat, coercion and
duress and also in advance and in abstract and the same would be no consent in
law •.
(vi) As regards the proposed appointees it introduces an additional qualification for being appointed as Additional or Permanent Judge not warranted by
the Constitution.
(vii) The circular letter was written ma/a fide for a collateral purpose to
by pass Article 222 and further to exercise the power of appointing additional
judges not for the purpose for which that power has been confirmed but for the
purpose of carrying out the so-called "policy" of the Government and is therefore
malafide in the sense that the power [is being exercised for a collateral purpose
foreign to the purpose indicated in Article 224.
(viia) The circular letter under which
absolute power and
discretion
is claimed to the effect that there is no obligation on the part of the Union
Government to continue the sitting additional Judges after th€ expiry of their
initial term notwithstanding pendency of arrears of work or to make them
permanent as and when permanent vacancies become available and to appoint
different persons for different periods of additional Judges in the vacancies of
sitting additional Judges after their initial terms have expired, is a clear abuse of
the power conferred by Article 224 (I) of the Constitution, because the power,
being purposive is coupled with a duty to exercise the same when the conditions
precedent mentioned in provision exist and the circular letter which claims such
absolute power is violative of the provisions of Article 224, in any case the course
of action proposed in the said circular letter in exercise of such absolute power
claimed thereunder is contrary to the established constitutional convention and
practice that has grown over the years in the matter of appointment of Additional Judges and, therefore, bad in law inasmuch as Article 224 (1) has been interpreted and workea having regard to the said convention and practice.
(viii) The circular letter is violative of Article 14 of the Constitution inasmuch as it makes invidious discrimination against those who would be refusing
to furnish their consent as they will suffer a disadvantage, while those who would
be furnishing their consent would stand to gain, it gives to the Government
unfettered and unguided power or discretion to pick and choose i.e. select some
for being shifted to High Courts other than their home-State High Courts and to
retain and appoint other in their home.-State High Courts-which power can be
exercised either by way of punishment or by way of favouritism.
(ix) In the appointment of Additional Judges of one High Court as
Permanent Judges of another High Court or in the appointments of the members
of the Bar practising in one High Court as Additional or Permanent Judges of
another High Court pursuant to the consent obtained under the said circular
letter, the consultation with the Governor of that other State and particularly
with the Chief Justice of that other High Court would be illusory and an empty
-L ..
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s.1'. GUPTA v. t.JNioN
373
formality and as such circular letter is violative of Article 217 of the ConA
stitution.
(x) The short-term extensions are directly subversive of the independence
of Judiciary and not contemplated by the Constitution.
(xi) A member of th~ Bar who accepts the appointment of an Additional Judge has legitimate expectation that he will be confirmed as Permanent
Judge of that High Court when a vacancy occurs and in the past he has been
confirmed except in the rarest of cases. The power claimed under Article
224 (I) not to continue the Additional Judges, even if temporary increase in
the Court's business persists or pendency of arrears justifies such continuance
after the expiry of the initial term and not to make him permanent even if a
vacancy of permanent post occurs and to appoint another person as Additional Judge by ignoring the legitimate expectancy of the sitting incumbent
whose initial term has expired, apart from involving an unjustified departure
from the well recognised and established practice, amounts to breach of faith
with the concerned Judge and further to ask such Additional Judge who has
given such undertaking to agree in advance to a transfer (or even to accept
. fresh appointment) to other High Courts as a Permanent Judge also involves
similar breach of faith amounts to a clear abuse of power and the purported
exercise of the power in that manner would be illegal and void.
B
c
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(xii) The claim made by the Government that Article 224 (1) only fixes
the maximum period of two years at a time, that the Article does not limit the
discretion of the Government in the matter of the period for which an Additional Judge can be appointed except in regard to the ceiling of two years and
that the appointment can be for a shorter period and that 'period is not justiciable
E
is untenable in law and clearly wrong because, apart from involving an unjustified departure from the well recognised and established practice, it introduces an
element of insecurity of tenure having serious repercussions on the independence
of Judiciary and also undermines people's confidence and faith in it.
(xiii) Article 216 of the Constitution casts a primary obligation upon the
President mandatorily to provide adequate strength of Permanent Judges to cope
with the normal busines in every High Court so as to ensure its disposal within
reasonable time and to review such strength from time to time so that arrears do
not acoumulate and justice to litigants is not unduly delayed. When the objective
facts unmistakably demonstrate that the increase of business every year or that
the arrears have increased and accumulated to an appreciably disturbing level
with no reasonable prospects of substantialy reducing the same over a period of
years, the President cannot resort to Article 224 (I) but has to increase the permanent strength by making permanent appointments under Article 217. In any
case Additional Judges cannot be
appointed while keeping permanent posts
vacant.
F
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(xiv) To keep a large number of sitting Judges as Additional Judges
H
would be arbitrary and unconstitutional and a clear case exists for declaring
them to be deemed to have become permanent.
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374
SUPREME COURT il.Ei>oilis
(1982) 2 s.c.tl.
(xv) Article 222 (I) does not refer to a Chief Justice hence the order
dated 19-l-198Jis outside its purview.
(xvi) Since Article 222 (1) properly construed, covers only consensual trans·
fers, the transfer order dated 19-1-1981 which is admittedly non-consensual, is
bad in law.
(xvii) The transfer dated 19-1-1981 was not effected in public interest.
1"
(xviii) The transfer has been effected without full and effective consulta·
tion contemplated by Article 222 (1) and therefore the procedure followed in
effecting the same did not ensure fairplay in relation to K.B.N. Singh and the
transfer is punitive in character.
The contesting respondents raised a preliminary objection as to maintainability of the petitions inasmuch as the advocates had no locus standi and as to
the request for disclosing certain correspondence in the case of S.N. Kumar,
Additional Judge, of the Delhi High Court, the respondents claimed privilege
under sections 123 and 162 of the Evidence Act.
Dismissing the petitions, the Court, while agreeing that (a) the petitioners
being advocates had a 'standing' to challenge the va!idity of circulars; (b) independence of Judiciary is the founding faith of the Constitution and the power to
appoint Judges is executive in the nature and the President is bound by the
advice of the Cabinet by virtue of Article 74; (c) As to appointment and extension of Additional Judges, consultation with constitutional functionaries must be
meaningful and result-oriented, none of them can exercise veto in the matter
and the proposal can emanate from any of them and (d) transfer must be in
public interest, not by way of punishment and personeal inconvenience, language
problem and other factors should be taken into consideration,
HELD : (Per majority).
(i) The circular letter of the Law
Minister
dated 18.3.81
is not
invalid because it is a document without any legal force and does not by
itself of its own force, produce any legal consequence or effect but if any
adverse action is taken against an additional judge because he has not given
his consent for being appointed a permanent judge in another High Court,
such adverse action would be invalid. Since an additional Judge has a right to
be considered for appointment as an additiona 1 Judge for a further term on the
expiration of his original term, and in case of a vacancy in a permanent post, for
appointment as a permanent Judge in his own High Court, he cannot be discontinued as an additional Judge on the ground that be has not given hi; consent for being appointed as a permanent Judge in any other High Court.
Such a ground for
discontinuing as an
additional Judge
would be a
wholly irrelev2nt ground and if an additional Judge is discontinued on any such
ground, the decision of the President discontinuing him would be unconstitutional
and void. [Vide opinions of P.N. Bhagwati, S.M. Fazal Ali, D.A. Desai and
E.S. Venkataramiah, JJ.]
S.P. GUPTA V, UNION
375
(ii) Among the opinions of the three constitutional consultancies, the
opinion of the Chief Justice of India does not enjoy primacy over the other two
opinions in the matter of appointment of Judges. (Vide P.N. Bhagwati, S.M.
Fazal Ali, D.A. Desai and E.S. Venkataramiah, JJ.)
(iii) Non-extension of Mr. Justice S.N. Kumar after the expiry of his term
was not invalid.
(Vide P.N. Bhagwati, S.M. Fazal Ali, D.A. Desai and E.S.
A
Venkataramiah, JJ.)
B
(iv) "Consent" is
not necessary for the transfer of a Judge under
Article 222, (Vide A.C. Gupta, Fazal Ali, V.D. Tulzapurkar, D.A. Desai,
R.S. Pathak and E.S. Venkataramiah, JJ.)
(v) The transfer of Sri K.B.N. Singh, the Chief Justice of the Patna High
Court is in public interest and not vitiated by malafides. (Vide /,,C. Gupta,
C
V.D. Tulzapurkar, R.S. Pathak and E.S. Venkataramiah, JJ.)
(vi) No privilege could be claimed in respect of documents which constituted material for forming the opinions in the matter of either appointment or
transfer of the Judges. (Vide P.N. Bhagwati, A.C. Gupta, V.D. Tulzapurkar,
D.A. Desai, R.S. Pathak and E.S. Venkataramiah, JJ.)
Per Bhagwati, J.
I : I. The principle of independence of the judiciary is not an abstract con·
ception but it is a living faith which must derive its inspiration from the constitu-
.4.
tional character and in nourishment and sustenance from the constitutional
values. Indian Constitution is a document of social revolution which casts an
obligation on every instrumentality including the judiciary, which is a separate
but equal branch of the State to transform the status quo ante into a new human
order in which justice, social, economic and political will inform all institutions
of national life and there will be equality of status and opportunity for all. The
judiciary has therefore a socio-economic
d~stinat ion and a creative function.
It cannot remain content to act merely as an umpire but it must be functionally
involved in the goal of socio-economic justice. Therefore, what is necessary is
to have Judges who are prepared to fashion new tools, forge new methods,
innovate new strategies and evolve a new jurisprudence, who are judicial statesmen with a social vision and a creative faculty and who have, above all, a deep
sense of commitment to the Constitution with an activist approach and obligation
for accountability, not to any party in power nor to the opposition nor to the
classes which are vociferous but to the half hungry millions of India who are
continulaly denied their basic human rights. Only Judges who are alive to
the soc10-economic realities of Indian life, who are anxious to wipe every
tear from every
eye,
who
have faith in
the
constitutional values and
who are ready to use law as an instrument for achieving the constitutional
objectives are needed. And this has to be the broad blue-print of the appointment project for the higher echelons of judicial service. It is only if appointments of Judges are made with these considerations weighing predominently with
the appointing authority that we can have a truly independent judiciary commit-
\~d only to the <;:onsti!\lti<;m an\! to the people of India.
,
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1 : 2. The concept of the independence of the judiciary is a noble concept
which inspires the constitutional scheme and constitutes the foundation on which
rests the edifice of our democratic polity. If there is one principle which runs
through the entire fabric of the Constitution, it is the judiciary which is entrusted
with the-task of keeping every organ of the State within the limits of the law and
thereby making the rule of law meaningful and effective.
It is to aid the judiciary
in this task that the power of judicial review has been conferred upon the judiciary
& it is by exercising this power which constitutes one of the most potent weapons
in armoury of the law, that the judiciary seeks to protect the citizen against violation of his constitutional or legal rights or misuse or abuse of power by the State
or its officers. The judiciary stands between the citizen and the State as a bulwark
against executive excesses and misuse or abuse of power by the executive and
therefore it ls absolutely essential that the judiciary must be free from executive pressure or influence and this has been secured by the Constitution
makers by making elaborate provisions in the Constitution. The concept of
independence of the judiciary is not limited only to independence from executive pr~ssure or influence but it is much wider concept which takes within its
sweep independence from many other pressures and prejudices. It has many
dimensions, namely, fearlessness of other power centres economic or p()litical,
and freedom from prejudices acquired and nourished by the class to which the
Judges belong.
[537 A-El
1 : 3.
Judges should be of stern stuff and tough fibre, unbending before
power, economic or political, and they must uphold the core principle of the
rule of law which says "Be you ever so high, the law is above you." This is the
principle of independence of the judiciary which is vital for the establishment of
real participatory democracy, maintenance of the rule of law as a dynamic
concept and delivery of social justice to the vulnerable sections of the community,
It is this principle of independence of the judiciary which must be kept in mind
while interpreting the relevant provisions of the Constitution. [537H, 538A-B]
2 : J.
The traditional rule in regard to locus standi is that judicial redress
is available only to a person who has suffered a legal injury by reason of violation
of his legal right or legally protected interest by the impugned action of the
State or a public authority or any other person or who is likely to suffer a legal
injury by reason of threatened violation of his legal right or legally protected
interest by any such action. The basis of entitlement to judicial redress is personal injury to property, body, mind or reputation arising from violation, actual
or threatened, of the legal right or legally protected interest of the person
seeking such redress. This is a rule of vintage and it arose during an era when
private law dominated the legal scene and the public law had not been born.
Under this rule, the court
concerned only with the question whether the
applicant was an aggrieved person. According to this rule, it is only a person
who has suffered a specific legal injury by reason of actual or threatened violation of his legal right or legally protected interest who can bring an action
for judicial redress. This rule in regard to lo~us standi postulates a right-duty
pat!ern. J513A, Sl4A-C,'S15A-BJ
y
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-.
,
•
S.P. GUPTA v. UNION
377
2 : 2. But, narrow and rigid though this rule may be, there are a few exceptions to it which have been evolved by the Courts over the [years. They are:
(a) A rate payer of a local authority is accorded standing to challenge an illegal
action of the local authority; (b) if a person is entitled to participate in the
proceedings relating to ·the decision making process culminating in the impugned
decision, he would have locus stiindi to maintain an action challenging the
impugned decision; (c) the !tatute itself may expressly recognise the locus standi
of an applicant, even though no legal right protected interest of the applicant has
been violated resulting in legal injury to him; and (d) the applicant for judicial
redress must have suffered a legal wrong or injury in order to entitle him to
maintain an action for such redress. [515B,C,D,F, 516A]
2 : 3. Where a person who ha• suffered a legal wrong or a legal injury or
whose legal right or legally protected interest is violated, is unable to apporach the
court on account of some disability or it is not practicable for him to move the
court for some other sufficient reasons, such as his socially or economically disadvantanged position, some other person can invoke assistance of the court for
the pupose of providing judicial redress to the person wronged or injured, so that
the legal wrong or injury caused to such person does not go unredressed and
justice is done to him.[517 A·B]
Ex-parte Sidebotham, 14 Chancery Division 458; Reed Baveri & Comp'lny,
19 Q.B. Division 174, K.R. Shenoy v. Udipi Municipality, A.I.R. 1974 SC 2177;
Vaidarajan v. Salem Municipality; A.LR. 1973 Mad. 55; Queen v. Bowman (1898)
Q.B. 633; J.M. Desai v. Roshan Kumar, 1976 3 SCR 58; Rat/am Municipality v.
Vardhi Chand, A.I.R. 1980 SC 1622; United States v. Raines, 362 U.S. 17; 4
L. Ed. 2 d 524; Atwood v. Merry Wether, (1867) 5 Equity 464; Duryappah v.
Fernando, (1967) 2 Appeal Cases 337; Barrows v. Jackson, 346 U.S. 249; Law
Ed. 1586; Suni/ Batra v. Delhi Administration, A.I.R. 1980 SC 1579; Dr. Upendra
Baxi v. State of U.P., (1981) 3 Scale 1137, discussed and referred to.
2 : 4.
Where a legal wrong or a legal injury is caused to a person or to a
determinate class of persons by reason of violation of any constitutional or legal
right or any burden is· 'imposed in contravention of any constitutional or legal
provision or without authority of law or any such legal wrong or legal injury or
illegal burden is threatened and such person or determinate class of persons i~
by reason of poverty helplessness or disability or socially or economically
disadvantaged position, unable to approach the court for relief any member of
the public can maintain rn application lor an appropriate direction, order or
writ in the High Court under Article 226 and in case of breach of any fundamental right of such person or determinate class of persons, in this Court under
Article 32 seeking judicial redress for the legal wrong or injury caused to such
person or determinate class of persons. Where the weaker sections of the
community are concerned, who are helpless victims of an exploitative society
and who do not have easy access to justice, Supreme Court will not insist on a
regular writ petition to be filed by the public spirited individual espousing their
cause and seeking relief for them. Supreme Court will readily respond even to
a letter addressed by such individual acting pro bono publico. It is true that
there are rμles made by Supreme c:;ourt prescri\Jin(l the pr<;>C\l\11,lre for movin!I
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SUPREME COURT REPORTS
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Supreme Court for relief under Article 32 and they require various formalities
to be gone through by a person seeking to approach Supreme Court. But, procedure is but a handmaiden of justice and the cause of justice can never be allowed
to be thwarted by any procedural technicalities. The Court would therefore
unhesitatingly and without the slightest qualms of conscience cast aside the
technical rules of procedure in the exercise of its dispensing power and treat the
letter of the public minded individual as a writ petition ~nd act upon it. But the
individual who moves the court for judicial redress in cases of this kind must be
acting bona fide with a view to vindicating the cause of justice and if he is
acting for personal gain or private profit or out of political motivation or other
oblique consideration, the court should not allow itself to be activised at the
instance of such person and must reject his application at the threshhold
whether it be in the form of a letter addressed to the court or even in the form of
a regular writ petition filed in court.