This article is written by Monesh Mehndiratta, a law student at Graphic Era Hill University, Dehradun. This article explains the case summary, which includes brief facts, issues involved, and the judgement. It further gives an analysis of the case and briefly portrays related cases and concepts.
It has been published by Rachit Garg.
The Indian judiciary is one of the most important organs of the government and a pillar of democracy in the country. It has always lived up to the expectations of the people whenever they demand justice. The Hon’ble Supreme Court at the apex has served as the guardian of fundamental rights and interpreter of the Constitution of India. With its various judgements and guidelines, it has solved various questions on different subject matters at issue. From providing guidelines about sexual harassment of women in the workplace to clarifying the procedure of appointment of judges in the High Courts and the Supreme Court, it has been fulfiling its duty of being a guardian of the Constitution.
Judges play an important role in the judiciary. The appointment procedure of the judges had to be transparent and unambiguous so that people could trust our Indian judiciary and the judges delivering the decisions. Earlier, there had been a lot of unambiguity in the procedure, which at times led to biases towards a particular candidate. All this was cleared with the help of the ‘Three Judges case’ initially, but then in 2015 another case was added to the list, which is known as the ‘Fourth Judges case’. The article gives a summary of the ‘First Judges’ case and also discusses other cases in the list.
Details of the case of S.P. Gupta v. Union of India
S.P. Gupta v. Union of India
Writ petition number: 274 of 1981
AIR 1982 SC 149
Union of India
The Honourable Justice Y.V. Chandrachud was the then Chief Justice of India, while Justice P.N. Bhagwati was appointed as the Chief Justice of the country in 1985. The bench comprised seven judges, namely:
- Justice P.N. Bhagwati
- Justice A.C. Gupta
- Justice S.M. Fazal Ali
- Justice V.D. Tulzapurkar
- Justice D.A. Desai
- Justice R.S. Pathak
- Justice F.S. Venkataramaiah
The majority of the judgement was given by Justice P.N. Bhagwati.
Background of the case of S.P. Gupta v. Union of India
It is one of the first cases of the ‘Three judges Cases’ now referred to as the ‘Four Judges case’ after 2015, which played an important role in introducing a collegium system for the appointment of judges in the Supreme Court and High Courts. The Court, with the help of these cases, set a precedent for the principle of independent jurisdiction, which means that no other organ of the government except the judiciary itself will interfere in the election of judges. S.P. Gupta v. Union of India (1981), is the first case, which is also known as the ‘Judges’ Transfer Case’, established a precedent for the collegium system, while the second case, in 1993, made the system effective in the country and the third case, in 1998, clarified the loopholes in the system. In the fourth case in 2015, the Court abolished the National Judicial Appointment Commission that helped the President in the selection of judges for the Supreme Court and High Courts.
S.P. Gupta was a pleader in the Allahabad High Court since 1951 and also served as the position of Advocate General for the State of Uttarpradesh twice during his long tenure in the profession. He was the main face of the case and played an important role in a case that further led to the establishment of the collegium system in the country for the appointment of judges.
Brief facts of the case of S.P. Gupta v. Union of India
In 1981, a lot of writ petitions were filed by various lawyers and practitioners in different high courts. The issue in all the petitions was the same. All the petitions challenged an order of the government on the non-appointment of 2 judges and their transfer. The first petition was filed in the Bombay High Court and the second was filed in the Delhi High Court, which not only challenged the order of the Central Government but also questioned the constitutional validity of the procedure followed for the appointment of judges in higher courts. Various questions were issued on the appointment of 3 additional judges in the Supreme Court for a short term, which was not justified according to Article 224 of the Constitution. The petitions also sought and requested to convert the seats of additional judges into permanent judges, so as to achieve independence of the judiciary.
One of the several petitions was filed by S.P. Gupta, who served as an attorney in the Allahabad High Court at that time, in the Supreme Court on the issue of the appointment of Justice Murlidhar, Justice A.N. Verma, and Justice N.N. Mittal as additional judges in the High Court. An advocate from the Ministry of Law and Justice questioned the validity of these petitions on the ground that there has been no legal harm to anyone because of the order of the government and the short-term appointments of judges in the courts.
Issues involved in the case
- The main issue, in this case, was the constitutional validity of the order of the Central Government on non-appointments and transfer of judges in High Courts for a short term.
- The letter of disclosure of communication between the Minister of Law, the Chief Justice of the Delhi High Court and the Chief Justice of India was also in question.
- The locus standi of the petitioners was also challenged.
- Another important issue was the independence of the judiciary and the procedure for the appointment of judges in higher courts.
Contentions of the parties
Arguments from the side of the petitioner
The petitioners in their petitions argued the constitutional validity of the order of the Central Government, which indirectly forced the judges to give their consent to the appointment as additional judges or else their permanency in the profession would be affected. They also argued and sought the disclosure of correspondence and communication that was related to the non-appointment of judges and their transfer for a short term.
Another argument was that the President failed in his duty under Article 216 of the Constitution to appoint judges in the court to deal with the pendency of cases effectively, and so a writ of mandamus must be issued against him. It also said that the procedure laid out under Article 124 has not been followed properly.
Arguments from the side of respondents
The respondents on the issue of disclosure took the advantage of Article 74(2) stating that any advice taken by the President from any of the ministers in the Council of Ministers cannot be challenged and questioned in court nor the unpublished documents are used as evidence in the court according to Section 123 of the Indian Evidence Act, 1872. With regards to the issue of publication of documents, they referred to the case of State of Punjab v. Sodhi Sukhdev Singh (1961), where the Court held that when any document falls into the scope of ‘state affairs’, the head of the department has the right to decide whether it should be published or not. The Court also said that the advice given by the Council of Ministers in the meetings is covered under Section 123 of the Evidence Act and is thus protected from disclosure.
On another issue, they argued that the petition filed by the petitioner must not be maintainable as no harm has been suffered by them. If it had to be filed, then the judges who had been appointed as additional judges must have done so. Thus, the Court must not hear the petitions as the petitioners are not the ones who suffered any kind of injury or loss due to the order of the Central Government.
Judgement of the Court in S.P. Gupta v. Union of India
The majority decision by 5:2 in this case held that the non-extension of an additional judge, i.e., in this case, the non-extension of Judge S.N. Kumar, was valid. On the one hand, Justice Bhagwati recommended a collegium in order to recommend the names of candidates to the President for the appointment of judges in the Supreme Court and High Courts, while on the other hand, Justice Pathak and Tulzapukar held that the opinion and advice of the Chief Justice of India must be given importance and supremacy over the advice given by anyone else. While explaining the meaning of the word ‘consultation,’ it was unanimously held that it means full and effective consultation. The decisions of constitutional functionaries must be given after considering full and identical facts.
Judgement – explained
The Hon’ble Supreme Court in the present case, while denying the argument of the respondents on the disclosure of correspondence, held that the disclosure would not be made only if such disclosure would affect the public interest and is contrary to public policy. But if the disclosure is necessary for the public to know, it must be done without any delay. The Court talked about open and responsible government, where the government is accountable to the people for its work. This concept of open government directly indicates the right to know given under the ambit of freedom of speech and expression under Article 19(1)(a) of the Constitution. The very spirit of democracy demands an accountable and transparent government. There must be a check on their functioning and role. This can only be done if people are given the right to know. The only exception to the right to know is when any information relates to the security of the country or is of such a nature that its disclosure will harm the public interest.
With respect to the advantage of advice taken by the respondents under Article 74(2), the Court said that the correspondence does not fall into the category of advice mentioned in the Article. Just because the correspondence was rendered as advice by the Chief Justice of India and the Chief Justice of the Delhi High Court, it will not be protected under the said Article. Moreover, it included their opinions, which does not amount to advice.
While deciding on the third claim of the respondents, in which they sought the protection of unpublished documents from being treated as evidence under Section 123 of the Indian Evidence Act, 1872, the Court relied on the case of State of UP v. Raj Narain (1975), where the Court upheld the decision of the High Court on treating any unpublished document as evidence in the court. It gave the reason that the court has the authority to determine the kind of effect it will have on the public interest if it is disclosed to them.
In the present case, there was no proper consultation between the government and the authorities to be consulted for the appointment of judges and their transfer, nor was it based on relevant grounds. The aim of the court is to create a balance between fairness and justice and serve the public interest. The appointment of judges and their transfer, in this case, comes in the public interest and so the correspondence was not contrary to it and had to be disclosed.
Rule of law
According to Article 124 of the Indian Constitution, the number of judges in the Supreme Court will be decided by Parliament as per the law. Currently, the number of judges is 33, apart from the Chief Justice of India. All the judges in the Supreme Court will be appointed by the President and will hold office until the age of 65 years.
Article 217 sets out the conditions for the appointment of judges in the High Court. The appointment will be made by the President. The recommendation of the candidates will be given by a collegium formed for this purpose. The Article further provides that a judge will not be qualified for the appointment in the following cases:
- If he is not a citizen of India or
- He does not have an experience of 10 years in the judicial office in the territory or,
- He has not practised as an advocate for 10 years in the High Court.
Observations of judges on different issues
Power of the President to appoint judges of the High Court
It was observed by Justice Venkataramaiah that the President of India has the power to appoint the judges of the High Courts. This is given under Article 217 of the Constitution. He has to consult the required authorities, but he is not bound by their advice. In case of a difference of opinion, he must take into consideration every piece of advice given to him, think separately, and then make a decision. He must remember that he is not bound by any of the advice given to him, but it is given just to help him make a fair decision.
The Honourable Justice Bhagwati observed and said that in this case, the advice was given by the Chief Justice of India and the Chief Justice of Delhi High Court. Just because it was given by the Chief Justice of India does not mean that his advice will be favoured or given more importance than the advice given by the latter. While consulting, the President must give equal weightage to all the advice given to him by every person he consults. It must not give any primary importance to one over the other.
In the present case, Justice Desai clarified the meaning of the word ‘Consultation’. It said that the consultation sought by the President must be such that it is meaningful, purposeful, and result oriented. It must be an outcome of some substance. People consulted by him must give him honest and fair advice and must not hide anything. It was also clarified that the President can differ from the opinions of people he consulted and act contrary to their advice after giving reasonable reasons.
Independence of the judiciary
The Court in this case observed that the appointment of judges of high courts must not be done by the executive or else it will destroy the independence of the judiciary, which is one of the basic yet essential features of a democracy. They emphasised that there must be a separate procedure for the appointment of judges and their transfer in order to ensure the independence of the judiciary.
In order to achieve independence of the judiciary and keep the executive away from interfering in the procedure of appointment of judges, the idea and concept of the collegium system were introduced in this case. Justice Bhagwati suggested that there must be a collegium to recommend the names of the judges to the President, on the issue of appointment of judges in the Supreme Court and the High Courts. It must consist of such persons that have no bias against anyone and must give the names of such people that can contribute to the significance of the judiciary and serve its purpose.
Analysis of the case of S.P. Gupta v. Union of India
The present case is seen as a milestone in the history of precedents which introduced the concept of the collegium system in India for the appointment of judges in the Supreme Court and the High Courts. It is because of this case that this system was followed after the judgement in the ‘Second Judges case.’ The case also laid emphasis on the independence of the judiciary and that the executive must not interfere with it. There was apprehension that if the executive had the power to appoint the judges in the Supreme Court and High Courts, they would also interfere in the working of the judiciary and the powers of judges to adjudicate cases, thereby hampering the independence of the judiciary. But because of the establishment of the collegium system and various other case laws, this did not happen and the independence of the judiciary has been secured till date.
As a matter of fact, the case is not only important for the independence of the judiciary but also because it gave importance to the right to know under Article 19(1)(a) of the Constitution. The Court in the case laid down the importance of an open government that is responsible and accountable to its citizens. There must be transparency and checks on the working of the government, and this is only possible if citizens are empowered and given the right to question the government.
Not only this, but the case also served as a milestone for the PILs in the country. Earlier, a person who suffered any kind of injury or loss had the right to file a PIL in court. But in this case, the Court widened the scope and ambit of PIL and held that even a person other than the one who suffered injury or loss can file a PIL in the public interest. It paved the way for the ‘Second Judges’ case’, which established the collegium system and cleared the ambiguity related to the loopholes in the ‘First Judges’ case.’
The Third Judges case further dealt with questions related to the working of the system in the appointment of judges and the meaning of the word ‘consultation.’ There had been a development in this list of cases in 2015 when another case was added, which is referred to as the ‘Fourth Judges case.’ This case abolished the National Judicial Appointment Commission that recommended the names of candidates for appointment as judges in the Supreme Court and High Courts to the President within the system on the ground that it did not lead to the independence of the judiciary, which is the ultimate aim.
Thus, after the ‘First Judges’ case’, there has been a series of cases that helped the judiciary achieve its goal of ensuring the independence of the judiciary but still, the procedure for the appointment of judges cannot be seen as free from loopholes.
The present collegium system consists of:
- The Chief Justice of India
- 4 senior-most judges in case of appointment of Judges in the Supreme Court;
- 2 senior-most judges for appointment in the High Courts.
The procedure is still not as transparent as it was expected to be, and so we can expect some other changes in the near future as well.
Other cases of four judges’ cases:
Apart from the present case, there are three other cases that are covered in the four judges’ cases as referred to after 2015 that helped in establishing a fair procedure for the appointment of judges and establishing a collegium for this purpose. These are:
- Supreme Court Advocate On Record Association v. Union of India (1993) – Second Judges Case
- Re special reference 1 of 1998 – Third Judges Case
- Supreme Court v. Union of India (2015) – Fourth Judges Case
Supreme Court Advocate on Record Association v. Union of India
This case is popularly known as the ‘Second Judges Case.’ The loophole in the case of S.P. Gupta v. Union of India was cleared in this case. In this case, with the help of a 9 judge bench, the Court overruled the ‘First Judges case’ and held that the advice given by the Chief Justice of India is essential and important and must be considered. The majority of judges held that the advice given to the President must be constitutional so that no false advice can be given to him. This case further led to the adoption of a collegium system for the appointment of judges on the Supreme Court and the High Courts that was introduced in the ‘First Judges case.’
Re special reference 1 of 1998
This case is popularly known as the ‘Third Judges case.’ This case dealt with all the questions related to the working and administration of the collegium system. It increased the number of judges in the collegium to be consulted by the President on the appointment of judges. The collegium now consists of the Chief Justice of India and four other senior-most judges of the Supreme Court. It was also held that the presence of the Chief Justice in the collegium does not mean that only his advice will be taken into consideration but that everyone in the collegium will be consulted by the President equally.
Supreme Court v. Union of India
This case is popularly known as the ‘Fourth Judges Case’ and was added to the list in 2015 after a judgement on the National Judicial Appointments Commission (NJAC). The NJAC was established by the National Judicial Appointments Act of 2014, which was held to be unconstitutional and thus, void by the Supreme Court. This Commission was formed to recommend the names of candidates for the appointment of judges in the Supreme Court and the High Courts within the collegium system. The five-judge bench, in this case, held the commission unconstitutional, stating that no proper parliamentary procedure was followed while enacting the 99th Constitutional Amendment Act, 2015, which established the commission. The Court also held the Amendment Act unconstitutional. The majority opinion held that it affected the independence of the judiciary as the commission was established by the legislature and so the appointment procedure of the judges would not be transparent.
This is one of the most important cases as it is the first case where the question related to the appointment of judges in the Supreme Court and the High Courts was raised and dealt with by the Court. The case discussed various aspects like the independence of the judiciary, the meaning of the word ‘consultation’, the power of the President to appoint the judges of the Supreme Courts and the High Courts and the introduction of the collegium system. It also widened the scope of PIL by allowing a person other than the sufferer to file public interest litigation in court. This case is also important for emphasising the right to know as part of freedom of speech and expression given under Article 19(1)(a) of the Constitution. This case paved the way for future developments in the judiciary.
However, there is still a long way to go. The present collegium system for the appointment of judges is lacking in transparency. The risk of nepotism is always there due to insufficient criteria. All these issues might lead to various other judgements in the near future so that the ultimate goal of the independence of the judiciary can be achieved completely by the judiciary.
Frequently Asked Questions (FAQs)
What are the qualifications of a judge of the Supreme Court of India?
According to Article 124, a person must have the following qualifications so that he can be appointed as a judge of the Supreme Court:
- He must be a citizen of India.
- He must have experience of 5 years as a judge of the High Court or,
- He must have experience of 10 years as an advocate in a High Court or more than one High Court or,
- He must be a distinguished jurist in the eyes of the President.
What are the grounds for the removal of judges of the Supreme Court and High Courts?
The judges of the Supreme Court or High Courts can only be removed on the grounds of incapacity and proven misbehaviour. The President must pass an order in this regard after an address by each house of parliament.
What are the qualifications of a High Court judge?
According to Article 217(2), the qualifications of a judge of a High Court are:
- He must be a citizen of India.
- He must have an experience of 10 years in a judicial office in the country or,
- He must have practised as an advocate in one or more high courts for 10 years.
What was the composition of the National Judicial Appointment Commission?
The commission helped the President with the system established for the appointment of judges in the Supreme Court and High Courts and their transfer by recommending and suggesting the names of appropriate candidates suitable for the post. It is comprised of the following members:
- The Chief Justice of India served as the chairman of the commission.
- There were 2 senior-most judges from the Supreme Court.
- It also comprises the Minister of Law and Justice.
- The other members included two eminent persons who were selected by a committee having the Prime Minister, the Chief Justice of India, and the leader of the opposition party as members.
How many members are there in the collegium for the Supreme Court?
There are four seniormost judges of the Supreme Court, along with the Chief Justice of India, in the collegium for the selection and recommendation of judges in the Supreme Court. The collegium recommends the names of suitable candidates for the appointment of judges in the hon’ble court to the President, who then selects from among the recommended candidates.
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