CHANAKYA NATIONAL LAW

UNIVERSITY, Patna

FINAL DRAFT: Constitutional Law- II

TOPIC: CRITICAL ANALYSIS OF SP SINGH VS UNION

OF INDIA

SUBMITTED TO:-
PROF. DR.ANIRUDH PRASAD
FACULTY OF CONSTITUIONAL LAW
SUBMITTED BY:-

Digvijaya Srivastava

ROLL NO =1525

B.A. LLB (2016-2021)

 AIM AND OBJECTIVE

 To gain knowledge about the famous case of sp gupta vs union of india.

 To explore the provisions dealt with by the honorable supreme court in the case.
 To study ,in brief various acts and their relevant provisions used in this case
 To understand the stare decisis of the honourable court
 To study its impact on today’s Indian society.

HYPOTHESIS

RESEARCH METHODOLOGY

For the purpose of research the researcher will be relaying on

various doctrinal methods.
The researcher will take aid of various
legal websites as well as books on Reservation issue,
Constitution of India and relevant Personnel law books.
 TENTATIVE CHAPTER

1. Introduction
2. Facts of the case of SP GUPTA vs UNION OF INDIA and the subsequent judgment.
3. Overturning of the judgment of S.P GUPTA vs UNIOIN OF INDIA
4. Affects of the case on modern day legal scenario.
5. Conclusion
ACKNOWLEDGEMENT

Writing a project is one of the most significant academic challenges, I have ever
faced. Though this project has been presented by me but there are many people
who remained in veil, who gave their all support and helped me to complete this
project.

First, I am very grateful to my subject teacher DR. ANIRUDH PRASAD without

the kind support of whom and help the completion of the project was a herculean
task for me. He donated his valuable time from his busy schedule to help me to
complete this project and suggested me from where and how to collect data.

I acknowledge my friends who gave their valuable and meticulous advice which
was very useful and could not be ignored in writing the project. I want to convey
most sincere thanks to my 5th year senior Shri Ashutosh Kashyap, for helping me
throughout the project.

Last but not the least, I am very much thankful to my parents and family, who
always stand aside me and helped me a lot in accessing all sorts of resources.

I thank all of them!

Digvijaya Srivastava

R.No.1525, SEMESTER 5th B.A.L.L.B. (Hons.)

 INTRODUCTION
S.P. Gupta Vs. Union of India 1popularly known as the Judges Transfer case was a lawsuit in
which Hon’ble Supreme Court unanimously agreed with the meaning of the
term ‘consultation’ in Article 212, 222, 124(1) of the Constitution. Hon’ble Supreme Court held
that the Chief Justice shall have to consult two other senior most Judges of the Supreme Court
before sending his opinion. The judgment in this case tilted the balance of power in appointments
of judges of High Courts in favour of the executive.

In this Judgement, the Supreme Court laid down certain guidelines :-

i) 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.

ii) Constitutional functionaries must act collectively in Judicial Appointments.

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

iv) 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 Article 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.

1
(AIR 1982 SC 149),
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.

But all this changed in 1993 when a nine-judge bench of the Hon’ble Supreme Court in the case
of Supreme Court Advocates-on-Record Association Vs. Union of India 2overturned the S.P.
Gupta case to hold that what the Chief Justice of India recommends is final. The majority laid
down guidelines including a time schedule for the selection of judges for appointment even
though this question had not been referred to it and there were no arguments at the Bar on this
issue. In this manner the appointment of high court judges, including additional judges, became a
Supreme Court monopoly of the Chief Justice hemmed in by two of his senior most colleagues.

2
[1993 (4) SCC 441]
Facts of the case of SP GUPTA vs UNION
OF INDIA and the subsequent judgment
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.3

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 government’s
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

3
(AIR 1982 SC 149),
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 healthy
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) 4 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)5, 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.

There are only two grounds on the basis of which the Central Government’s 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

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The Constitution Of India, Bare Act, Universal Law Publishing Co. Pvt. Ltd. New Delhi, 2018
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The Constitution Of India, Bare Act, Universal Law Publishing Co. Pvt. Ltd. New Delhi, 2018
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.

The Supreme Court of India recognized the public’s right to information as being included in
rights to freedom of speech and expression. It also further narrowed the scope of protection from
disclosure afforded government documents.
 Overturning of the judgment of S.P
GUPTA vs UNIOIN OF INDIA
Supreme Court Advocate on Record Association v. Union of India, 6

BACKGROUND

The cased is based on independence of Judiciary as the part of basic structure of Constitution.

This case is famously known as “second judges case”.

To secure the 'rule of law' essential for the preservation of the democratic system, the broad
scheme of separation of powers adopted in the Constitution, together with the directive principle
of 'separation of judiciary from executive' The case was decided on 6 October, 1993.

After the 1993 judgment on second judges case the collegium system was adopted in
appointment of judges of Supreme Court and High Courts.

Nine Judges to examine the two question referred therein, namely, the position of the Chief
Justice of India with reference to primacy, and justiciability of fixation of Judge strength.

RATIO DECIDENDI

A nine judge bench of the Supreme Court by 7-2 majority overruled its earlier judgment IN THE
S P GUPTA V. UNION OF INDIA and held that in the matter of appointment of the judges of
Supreme Court and the High Courts the Chief Justice of India should have primacy means most
important.

LEGISLATIVE PROVISIONS

Article 124. Establishment and Constitution of Supreme Court. –

6
[1993 (4) SCC 441]
(1) There shall be a Supreme Court of India consisting of a Chief Justice of India and until
Parliament by law prescribes a larger number, of not more than seven (now "twenty-five" vide
Act 22 of 1986) other Judges.

(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his
hand and seal after consultation with such of the Judges of the Supreme Court and of the High
Courts in the States as the President may deem necessary for the purpose and shall hold office
until he attains the age of sixty-five years:

Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice
of India shall always be consuited;

Provided further that -

(a) a judge may, by writing under his hand addressed to the President, resign his office;

(b) a large may be removed from his office in the manner provided in Clause (4).

Article 216. Constitution of High Courts. - Every High Court shall consist of a Chief Justice and
such other Judges as the President may from time to time deem it necessary to appoint.

Article 217. Appointment and conditions of the office of a Judge of a High Court.-

(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand
and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the
case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court,
and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and
in any other case, until he attains the age of sixty-two year:

Provided that –

(a) a Judge may, by writing under his hand addressed to the President, resign his office ;
(b) a Judge may be removed from his office by the President in the manner provided in Clause
(4) of Article 1247 for the removal of a Judge of the Supreme Court;

(c) the office of a Judge shall be vacated by his being appointed by the President tot be a Judge
of the Supreme Court or by his being transferred by the President to any other High Court within
the territory of India.

(2)...

(3) If any question arises as to the age of a Judge of a High Court, the question shall be decided
by the President after consultation with the Chief Justice of India and the decision of the
President shall be final.

Article 222. Transfer of a Judge from on High Court to another.-

(1) The President may, after consultation with the Chief Justice of India, transfer a Judge from
one High Court to any other High Court.

(2) When a Judge has been or is so transferred, he shall during the period he serves, after the
commencement of the Constitution (Fifteenth Amendment) Act, 1963, as a Judge of the other
High Court, be entitled to receive in addition to his salary such compensatory allowance as may
be determined by Parliament by law and, until so determined, such compensatory allowance as
the President may by order fix.

ISSUES

(1) Primacy of the opinion of the Chief Justice of India in regard to the appointments of Judges
to the Supreme Court and the High Court, and in regard to the transfers of High Court
Judges/Chief Justices; and

(2) Justiciability of these matters, including the matter of fixation of the Judge-strength in the
High Courts.

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ARGUMENT ADVANCED

Sarvashri F.S. Nariman, Kapil Sibal, Ram Jethmalani, P.P. Rao and Shanti Bhushan argued for
reconsideration of the majority opinion in S.P. Gupta, contending that the role of the Chief
Justice of India in the matter of appointments to the Supreme Court and the High Courts and
transfers of the High Court Judges and Chief Justices has primacy, with the executive having the
role of merely making the appointments and transfers in accordance with the opinion of the
Chief Justice of India.

o One point of view canvassed was that the primacy of the Chief Justice of India is in all matters;
another point of view was that in an exceptional case the executive may not make an
appointment recommended by the Chief Justice of India if, for strong reasons disclosed to the
Chief Justice of India, that appointment was considered to be unsuitable.

o It was also contended by them that the matter of fixation of the Judge- strength under Article
216 is justiciable, there being some difference between them about the extent to which it is
justiciable.

JUDGMENT

o Thus on the question of primacy the court conclude to say that the role of the Chief Justice of
India in the matter of appointments to the Judges of the Supreme Court is unique, singular and
primal, but participatory vis-a-vis the Executive on a level of togetherness and mutuality, and
neither he nor the Executive can push through an appointment in derogation of the wishes of the
other.

o The roles of the Chief Justice of India and Chief Justice of the High Court in the matter of
appointments of Judges of the High Court, is relative to this extent that should the Chief Justice
of India be in disagreement with the proposal, the Executive cannot prefer the views of the Chief
Justice of the High Court in making the appointment over and above those of the Chief Justice of
India. In the matters of transfers of Judges from one High Court to another, the role of the Chief
Justice of India is primal in nature and the Executive has a minimal.
In Conclusion, Late Justice Verma, former CJI of SC and author of majority judgment in Second
Judges case himself said in one interview that “My 1993 judgment, which holds the field, was
very much misunderstood and misused. It was in that context I said the working of the judgment
now for some time is raising serious questions, which cannot be called unreasonable.

o Therefore, some kind of rethink is required. My judgment says the appointment process of
High Court and Supreme Court Judges is basically a joint or participatory exercise between the
executive and the judiciary, both taking part in it.” The person who evolved the collegium
system is himself not looking happy with the collegium system of appointment.

o He himself was asking for change in procedure which is done by Parliament through the
Present Amendment. India is among a few countries where judges appoint themselves.

In Presidential reference 8 under article 143(1) of the constitution of India on principles and
procedure regarding appointing of supreme court and high court judges vs unknown on 28
October 1998 in the supreme court.Decided on 28/10/1998.

In Re Principles and Procedure regarding appointment of Supreme Court and High Court Judges
1998 17 (AIR 1999 SC 1). In Advocates-on- Record Association vs. Union of India (1994 (4)
SCC 441 = AIR 1994 SC 268),

The Supreme Court had laid down the procedural norms for appointment of Judges of Supreme
Court and High Court.

The decision was rendered by 9 Judges bench and five judgments were delivered.

As doubts arose about the interpretation of the law laid down by the Supreme Court in the above
mentioned case, the President made a reference to the Supreme Court under Article 143(1) of the
Constitution seeking clarification on certain points.

Nine questions were referred to the Court for advisory opinion and these questions pertained to
following three main points:-

8
17(1998) 7 SCC 739: 1998 (5) SCALE 36: RLW 1999 (1) SC 168, Reference made on 23/7/1998,
(i) Consultation between the Chief Justice of India and other Judges in the matter of appointment
of the Supreme Court and the High Court Judges;

(ii) Transfer of High Court Judges and judicial review thereof; and

(iii) The relevance of seniority in making appointments to the Supreme Court.

THE FOLLOWING QUESTIONS WERE REFERRED FOR THE OPINION OF HON'BLE

SUPREME COURT:-

“(1) Whether the expression "consultation with the Chief Justice of India" in articles 217(1) 9 and
222(1) requires consultation with a plurality of Judges in the formation of the opinion of the
Chief Justice of India or does the sole individual opinion of the Chief Justice of India constitute
consultation within the meaning of the said articles;

(2) Whether the transfer of judges is judicially reviewable in the light of the observation of the
Supreme Court in the aforesaid judgment that "such transfer is not justiciable on any ground"
and its further observation mat limited judicial review is available in matters of transfer, and the
extent and scope of judicial review;

(3) Whether article 124(2) as interpreted in the said judgment requires the Chief Justice of India
to consult only the two seniormost Judges or whether there should be wider consultation
according to past practice;

(4) Whether the Chief Justice of India is entitled to act solely in his individual capacity, without
consultation with other Judges of the Supreme Court in respect of all materials and information
conveyed by the Government of India for non-appointment of a judge recommended for
appointment;

(5) Whether the requirement of consultation by the Chief Justice of India with his colleagues,
who are likely to be conversant with the affairs of the concerned High Court refers to only those
Judges who have that High Court as a parent High Court and excludes Judges who had occupied

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the office of a Judge or Chief Justice of that Court on transfer from their parent or any other
Court;

(6) Whether in light of the legitimate expectations of senior Judges of the High Court in regard to
their appointment to the Supreme Court referred to in the said judgment, the 'strong cogent
reason' required to justify the departure from the order of the seniority has to be recorded in
respect of each such senior Judge, who is overlooked, while making recommendation of a Judge
junior to him or her;

(7) Whether the government is not entitled to require that the opinions of the other consulted
Judges be in writing in accordance with the aforesaid Supreme Court judgment and that the same
be transmitted to the Government of India by the Chief Justice of India along with his views;

(8) Whether the Chief Justice of India is not obliged to comply with the norms and the
requirement of the consultation process in making his recommendation to the Government of
India;

(9) Whether any recommendations made by the Chief Justice of India without complying with
the norms and consultation process are binding upon the Government of India?”

THE HON'BLE SUPREME COURT ANSWERED THE REFERENCE IN FOLLOWING

MANNER:

“The questions posed by the Reference are now answered, but we should emphasise that the
answers should be read in conjunction with the body of this opinion:

1. The expression "consultation with the Chief justice of India" in Articles 217(1) and 222(1) of
the Constitution of India requires consultation with a plurality of Judges in the formation of the
opinion of the Chief Justice of India. The sole, individual opinion of the Chief Justice of India
does not constitute "consultation" within the meaning of the said Articles.

2. The transfer of puisne Judges is judicially reviewable only to this extent: that the
recommendation that has been made by the Chief Justice of India in this behalf has not been
made in consultation with the four seniormost puisne Judges of the Supreme Court and/or that
the views of the Chief Justice of the High Court from which the transfer is to be effected and of
the Chief Justice of the High Court to which the transfer is to be effected have not been obtained.

3. The Chief Justice of India must make a recommendation to appoint a Judge of the Supreme
Court and to transfer a Chief Justice or puisne Judge of a High Court in consultation with the
four seniormost puisne Judges of the Supreme Court. Insofar as an appointment to the High
Court is concerned, the recommendation must be made in consultation with the two seniormost
puisne Judges of the Supreme Court.

4. The Chief Justice of India is not entitled to act solely in his individual capacity, without
consultation with other Judges of the Supreme Court, in respect of materials and information
conveyed by the Government of India for non-appointment of a judge recommended for
appointment.

5. The requirement of consultation by the Chief Justice of India with his colleagues who are
likely to be conversant with the affairs of the concerned High Court does not refer only to those
Judges who have that High Court as a parent High Court. It does not exclude Judges who have
occupied the office of a Judge or Chief Justice of that High Court on transfer.

6. "Strong cogent reasons" do not have to be recorded as justification for a departure from the
order of seniority, in respect of each senior Judge who has been passed over. What has to be
recorded is the positive reason for the recommendation.

7. The views of the Judges consulted should be in writing and should be conveyed to the
Government of India by the Chief Justice of India along with his views to the extent set out in
the body of this opinion.

8. The Chief Justice of India is obliged to comply with the norms and the requirement of the
consultation process, as aforestated, in making his recommendations to the Government of India.

9. Recommendations made by the Chief Justice of India without complying with the norms and
requirements of the consultation process, as aforestated, are not binding upon the Government of
India.”
 Affects of the case on modern day
legal scenario.
The case of SP Gupta vs Union of India10 has contributed in the evolution of the present day
collegium system for appointment and transfer of judges. The Collegium system is one where the
Chief Justice of India and a forum of four Senior- most Judges of the Supreme Court recommend
appointments and transfer of judges. However, it has no place in the Indian Constitution. The
system was evolved through Supreme Court judgments in the – Three judges cases A case
involving challenges to judicial transfer by Gandhi Regime in 1980, the court interpreted the
11
consultation requirement in art 124, 217, and 222 of the Indian Constitution to mean that
executive had primacy in judicial appointment and transfer following consultation with the
judiciary and other functionaries he primacy of the CJI in matters of appointment and transfers
was questioned.The term “consultation” used in Articles 124 and 217 did not mean
concurrence.This implied that although the President will consult the concerned persons as
mentioned in the Constitution but he was not bound by their advice / recommendationThe
judgment made the Executive more powerful in the process of appointment of judges of High
Courts.

10
(AIR 1982 SC 149),
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The Constitution Of India, Bare Act, Universal Law Publishing Co. Pvt. Ltd. New Delhi, 2018
CONCLUSION
The case of SP Gupta vs Union Of India has a special place for itself in the legal developmental
history as the primacy of Chief Justice of India’s consultation was decided upon and the
foundation for the present day collegium system was laid.
In this case it was held that the consultation of the chief justice is needed and not his
concurrence. Thus, even if the chief justice does not concur upon the appointment of a particular
judge that judge may be appointed anyway by the president. It is noteworthy that the present case
has been overruled in the case of Supreme Court Advocate on Record Association v. Union of
India where it was held by the apex court that consultation must also amount to concurrence.
BIBLIOGRAPHY

1.)D.D.Basu -Introduction to constitution of India, 22nd

Edition,2015 Lexis Nexis pub.
2.)V.N Shukla- Constitution Of India,2017 edition, EBC pub
4.)The Constitution Of India, Bare Act, Universal Law
Publishing Co. Pvt. Ltd. New Delhi, 2018
5.)Jain, M.P, Indian Constitutional Law, 8th Ed., LexisNexis,
2018.
6.)Gauba, OP., An Introduction to Political Theory, 7th Edition,
Macmillan India Ltd., Delhi, 2014.
7.)Bakshi, P.M., The Constitution of India, 15th Edition,
Universal Law Publishing
Co., Delhi, 2018

INTERNET WEBSITES

1.)www.Indiankanoon.com
2.)www.SCConline.com