Citation: AIR 1982, SC 149
Case Type: Writ Petition
Case No: 19 of 1981
Petitioner: S.P. Gupta
Respondents: Union of India
Decided On: 30-12-1981
Statues Referred: Constitution of India
Bench: A Gupta, D Desai, E Venkataramiah, P Bhagawati, R Pathak, S M Tulzapurkar
Facts:
The petitioner challenged the circular letter addressed by the Law Minister of the Government of India to the Chief Minister of each States except North-east States, stating that they should obtain consent from the Additional Judges working in High Court to be appointed as permanent judge in the High Court of other States.
The petitioner contended that the letter was a direct attack on the Independence of the judiciary and therefore he challenged the constitutional validity of the letter. There were two group of petition filled.
One dealt with the constitutional validity of the circular letter.
The other dealt with constitutional validity of orders of transfer of chief Justice M.M. Ismail and K.B.M. Singh.
Issue:
Whether the Petitioner had locus standi the matter despite the fact that their legal rights were not injured by the circular letter.
Who has the final voice in the appointment of the Judges?
Whether the independence of judiciary was affected by the circular letter of the law minister.
Whether non-extension of the Additional Judge Mr. S.N. Kumar of the Delhi High Court valid.
Contentions by Parties:
Petitioner’s Arguments:
The President of India failed to appoint Judges under Article 216 for the purpose of disposing of the pending case. And that the Supreme Court should issue a writ of mandamus to the Union of India directing to re-fix the strength of Judges in accordance with the arrears of cases.
Article 124(2) does not impose mandatory obligation upon the Central Government with regard to taking consultation with the Judges of the Supreme Court or the High Court.
The circular letter had a concealed threat that if an additional judge did not give his affirmative consent to be appointed as a Judge of the High Court of another then they may not be appointed as permanent judge and may be sacked after the expiry of their term. The word “obtain” conveyed a sense of compelled obedience, failure of which would give an adverse consequences.
The circular letter was an attempt to transfer Judges from one High Court to another by circumventing the decision of the Sankalchand Sheth’s case.
Respondent’s Arguments:
The petitioner has no right of locus standi on the ground that the petitioner had not suffered due to circular issued by the Law Minister or due to short term appointment by the Central Government.
Only a person who has suffered legal injury can maintain a writ petition and no third party can be permitted.
Under Article 74(2) of the Constitution of India, which provides that the advice of the Council of Minister to the President cannot be questioned in the Court of Law.
Section 123 of the Evidence Act, implies that evidence from the unpublished official record on state affairs cannot be applied without the head of concerned department.
Judgment
The Apex Court’s bench comprising of A Gupta, D Desai, E Venkataramiah, P Bhagawati, R Pathak, S M Tulzapurkar, held the following:
Where a legal injury is caused to a particular person or class of person as a result of the constitutional violation of his rights or any burden is imposed as a contravention of law and such person by reason of poverty, helplessness, disability, etc unable to approach the Court for relief then any member of the public can apply for direction, order or writ in High Court under Article 226 and in case of breach of fundamental rights one can apply to Supreme Court under Article 32. Hence challenge of locus standi failed.
“We do not think we can issue such a writ of mandamus against the Union of India for fixing a particular strength of judges in each High Court. The fixation of the strength of judges in each High Court is a purely executive function which is entrusted by Article 216 to the President, that is, the Government of India and it is entirely for the Government of India to decide in the exercise of its judgment as to what shall be the strength of judges in each High Court.”
For the appointment of the Judges of the Supreme Court, the President is under compulsory obligation to consult the Chief Justice of India along with such other Judges of the Supreme Court or the High Court it deems necessary. Only which of such Judges are to be consulted is left at the discretion of the President.
However J. Bhagwati suggested for a collegium to make recommendation to the President for the appointment of the Judges of the Supreme Court and High Court.
Hon’ble Court held that the appointment of the Additional Judges for a short term in order to enable the Central Government to satisfy itself with the ability of such additional judge was a misconception and error on the part of the Chief Justice of India.
With regard to the circular letter the court held that obtaining the consent of the person proposed to be appointed as Judge of the another High Court does not reduce the consultation of the Chief Justice of India or violative of Article 217.
The Court held that the word “obtain” is a transitive verb and is obvious that the law minister implied that the consent should be obtained at the free will of the Additional Judges.
“The circular letter does not violate the provisions of Clause (1) of Article 217 or Clause (1) of Article 222 nor does it offend against any other constitutional or legal provision and the challenge against the validity of the circular letter must, therefore, fail”.
The Court rejected the contention of the Respondent that the unofficial document cannot be disclosed without permission on the ground that for effective democratic process certain reasonable exposure of the document is necessary.
The court by 4:2 majority held that non-extension of the Additional Judge Mr. S.N. Kumar was valid. The President of India had relied on the recommendation of the Chief Justice of Delhi High Court over the recommendation of the Chief of the India.
According to J. Bhagwati, all the three functionaries, must be given equal importance in the conclusion process. Two minority Judges (Pathak and Tulzapukar) took the view that the Chief Justice of India should always be given supremacy over the view of other constitutional functionaries
The Court unanimously held that the word “consultation” as explained by the Sankalchand’s case. It was held that the word “consultation” meant full and effective consultation. Constitutional functionaries must have for its consideration full and identical facts on the basis of which they would be able to take a decision.
Rule of Law:
Article 124 provides for the constitution of the Supreme Court of India, which shall consist of a Chief Justice of India and such other Judges as the Parliament may prescribe for a larger number, but not more than 7 judges. Currently there are 29 Judges including CJI.
The Judges are appointed by the President of India after consulting the Chief Justice of India and such other Judges of the Supreme Court and High Court as it may deem necessary. Under Clause 3, a person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and —
(a) has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or
(b) has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or
(c) is, in the opinion of the President, a distinguished jurist.
Under clause 4 the Supreme Court Judges shall be removed by the president after an address in each house of the Parliament supported by two-third majority of vote.
Article 217 provides that the Judges of the High Court shall be appointed by the President after consulting the Chief Justice of India, the Governor of the State, and the Chief Justice of the High Court. Under clause (2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and —
(a) has for at least ten years held a judicial office in the territory of India; or
(b) has for at least ten years been an advocate of a High Court 3 or of two or more such Courts in succession;
Conclusion:
This case is popularly known as the Judges Transfer Case in which Hon’ble Supreme Court unanimously agreed with the meaning of the word “consultation”. It also held that the Chief Justice of India shall consult atleast two senior most Judges of the apex court to form an opinion.
The Independence of Judiciary has be granted by the Constitution to maintain balance between the legislative power and the rights of the citizen.
Kaushal Agarwal.