Case Analysis: S.P. Gupta v.

Union of India

Petitioner

S.P. Gupta

Respondent

Union of India & Anr.

Case type

Transfer case (civil) (19 of 1981)

Date of judgment

30/12/1981

Bench

7 Judge Bench comprising of a) Justice P.N. Bhagwati, b) Justice A.C. Gupta, c) Justice S.M.
Fazal Ali, d) Justice V.D. Tulzapurkar, e) Justice D.A. Desai, f) Justice R.S. Pathak, g)
Justice F.S. Venkataramaiah

Equivalent citation

1982 AIR 149

Overview of the case

A bunch of writ petitions were filed in various high courts across the country, referred to as
“writs of great constitutional importance affecting the independence of the judiciary”. These
writ petitions in high courts were then transferred to the Supreme Court of India under
Article 139(A) of the Indian Constitution. The case was decided by a 7 judge bench of the
Supreme Court of India on 30th December 1981. This case proved to be a crucial point in the
history of independence of the judiciary in India as it led to the creation of the Collegium
System of Supreme Court and High Courts in India.
Facts of the case:

A bunch of writ petitions were filed in various high courts across the country and one writ
was also filed in the Supreme Court of India which was referred to as “writs of great
constitutional importance affecting the independence of the judiciary”. These writs were filed
in response to the non-appointment of two judges and the transfer of a judge. One of the
important issues in the foregoing case was regarding the validity of the Central Government’s
order on non-appointment of two judges. To establish this claim, the petitioners sought the
disclosure of a correspondence between the Law Minister, Chief Justice of Delhi High court,
and the Chief Justice of India.

However the respondents denied the claim and sought the protection of correspondence under
Article 74(2) of the Constitution of India, which says that any advice tendered by the Council
of Ministers to the President of India shall not be the subject of judicial scrutiny. Moreover
the respondents also claimed the validity and application of Section 123 of the Indian
Evidence Act, 18721 which says that evidence derived from unpublished official records on
state affairs cannot be given without the permission of the head of the concerned department.

Issues in question:

 Whether the correspondence is protected from judicial scrutiny under the provisions
of the Constitution of India and the Indian Evidence Act as cited by the respondents in
their arguments?
 Whether the disclosure of the correspondence is contrary to the public interest and
would lead to the injury of public interest?

Arguments of the Petitioner:

The arguments of the Petitioners mainly centered on the disclosure of the correspondence.
They sought the disclosure of the correspondence which was made regarding the non-
appointment of the judges and the transfer of a judge, for being arbitrary, crooked, and
unobvious.

Arguments of the Respondent:

1
The Indian Evidence Act 1872, s123
The arguments of the Respondents denied all the claims made by the Petitioners. They sought
the protection of the correspondence under Article 74(2) of the Indian Constitution, which
states that any advice tendered by the Council of Ministers to the President is not the subject
of judicial scrutiny and under Section 123 of the Indian Evidence Act 1872, which states that
no evidence can be given from unpublished official records without the permission of the
head of the concerned department.

Judgment of the Court:

The Supreme Court of India addressed the issues in the foregoing case in a much-nuanced
approach. The Supreme Court of India observed the claim made by the respondents regarding
the protection of the correspondence and denied the same by stating that the correspondence
between the Law Minister, Chief Justice of Delhi High Court and Chief Justice of India can
only be protected if its disclosure is contrary to the public interest and will cause injury to the
public interest.

An open and participative democracy calls for accountability and access to information by
the public aboutthe functioning of the government. A constant check on the functioning and
administration of the government would lead to a healthy government and would prevent
misuse and abuse of the position of power. The Supreme Court of India laid the concept of
Open Government which directly emanates from Right to Know implicit under Article 19(1)
(a) of the Constitution of India which is the Right to Freedom of Speech and Expression.
Thus the Court held that“the disclosure of the information regarding the functioning of the
government must be the rule and secrecy, to the exception where the strictest public interest
requires it”.

Pertaining to the claim made by the Respondents for the protection of the correspondence
under Section 74(2) of The Indian Evidence Act, the Supreme Court of India held that while
advice tenderedby the Council of Ministers to the President of India is protected under the
aforementioned section, the correspondence made here is not protected merely because it was
referred to in the advice. Moreover merely the fact that the opinions of the Chief Justice of
India and the Chief Justice of Delhi High Court contributed to the correspondence does not
render them to be a part of the advice.

The Supreme Court of India refuted the claim of the Respondents seeking protection under
Section 123 of the Indian Evidence Act 1872. The claim made by the Respondents that the
correspondence was protected under the aforementioned section is supported by the Court in
the case of State of Punjab v. Sodhi Sukhdev Singh 2. In this the Court held that the
documents which embody the meetings of the council of ministers or advice tendered by the
council of ministers are protected under Section 123. If the head of the concerned department
does not permit its publication, the Court cannot compel him for the same. Once the
document falls into the category of “affairs of state” it lies upon the discretion of the head of
the department to allow it to be published or not.

But the Court in the case of State of U.P. v. Raj Narain3 upheld the High Court’s decision to
disclose an official document. The Court reasoned that it had the authority to determine if a
document is in the public interest or not and order its disclosure if its concealment or non-
disclosure would be detrimental to the public interest.

In the ongoing case, the claims made by the respondents can be challenged only on two
grounds; 1) there was no proper and effectual consultation between the Central Government
and the appropriate judicial authorities, and 2) it was based on irrelevant grounds. Both of
these grounds necessitate the disclosure of the correspondence. Public interest is something
that is included in the Indian Evidence Act. The Court while making a decision had to make a
balance between the fairness of justice and the public interest at large. The Court had to
ensure that the disclosure of the correspondence was not contrary to the public interest.

In this case the correspondence was not contrary to the public interest. Transfer and
appointment of judges is in the interest of the public domain. The Supreme Court held that
since it is in the public interest its disclosure would not have been detrimental to the public
interest. Thus the Court held the decision of the Central Government to not disclose the
correspondence as not justified.

Judgment in a glance:

1) The Supreme Court refused the claim made by the Respondents for the protection of
the correspondence from disclosure under Article 74(2).
2) The Supreme Court held that the disclosure of the correspondence would be in the
public interest.

2
State of Punjab v. Sodhi Sukhdev Singh,[1961] AIR 493
3
State of UP v. Raj Narain, [1975] AIR 865
 3) The disclosure of the correspondence is not protected under Section 123 of the India
Evidence Act 1872.

Verdict of the Judges:

Article 217: Power to appoint judges of High Court

Justice Venkataramaiah in his verdict stated that under Article 217 of the Constitution of
India, the President of India has the power to appoint the judges of the High Court. But if
there are differing opinions on the same, the President has to consider them separately and
then make a decision.

To quote the words of Justice Venkataramaiah, he said, “While he is bound to consult the
authorities mentioned therein and take into consideration their opinions, he is not
bound by their opinions. Ordinarily one does not expect the President to make an
appointment by ignoring all the adverse opinions expressed by the functionaries
mentioned in Article 217.”

Chief Justice of India not being entitled to primacy in case of difference of

opinion

To quote the words of Justice P.N. Bhagwati, he said, “The opinion of each of the three
constitutional functionaries is entitled to equal weight and it is not possible to say that
the opinion of the Chief Justice of India must have primacy over the opinions of the
other two constitutional functionaries. If primacy were to be given to the opinion of the
Chief Justice of India, it would, in effect and substance, amount to the concurrence,
because giving primacy would mean that his opinion must prevail over that of the Chief
Justice of the High Court and the Governor of the State, which means that the Central
Government must accept his opinion.”

Consultation

To quote the words of Justice D.A. Desai he said, “The consultation has to be meaningful,
purposeful, result-oriented and of substance. … All the parties involved in the process
of consultation must put all the material at its command relevant to the subject under
discussion before all other authorities to be consulted. Nothing can be kept back.
Nothing can be withheld. Nothing can be left for the eye of any particular constitutional
functionary.”

It was further clarified that the President has the right to differ from the opinions of the
judicial functionaries i.e. the Chief Justice of India and Chief Justice of High Court citing
cogent reasons and take a contrary view.

Independence of Judiciary

It was argued in the court in this case, that if the power to the appointment of the judges will
go to the executive then the independence of the judiciary, which is a basic feature of the
constitution, will be in shambles. On this Justice, Venkataramaiah said, “It is difficult to
hold that merely because the power of appointment is with the executive, the
independence of the judiciary would become impaired. The true principle is that after
such appointment the executive should have no scope to interfere with the work of a
Judge”

Collegium System

It was in this case where the idea of the collegium system of appointment of judges came into
significance. To quote the words of Justice P.N. Bhagwati he said, “We would rather
suggest that there must be a collegium to make a recommendation to the President
regardingthe appointment of a Supreme Court or High Court Judge. The
recommending authority should be broader-based and there should be consultation
with wider interests. If the collegium is composed of persons who are expected to know
the persons who may be fit for appointment on the Bench and of qualities required for
appointment and this last requirement is essential — it would go a long way towards
securing the right kind of Judges, who would be truly independent in the sense we have
indicated above and who would invest the judicial process with significance and
meaning for the deprived and exploited sections of humanity.”

Right to Know

One of the earliest cases that discussed the importance and emphasize people’s Right to know
was Romesh Thapar v. State of Madras4. In this case the Madras Maintenance of Public
Order Act, 1949 authorized the Government to put an unconstitutional restriction on freedom
4
Romesh Thapar v. State of Madras, [1950] AIR 124
of expression on the ground of maintaining the public order. Romesh Thapar, a journalist
challenged this practice because his leftist journal Crossroads was put under restriction under
this provision based on ‘public safety’. According to him, this ground of ‘public safety’ was a
bit too generalized. In this case, the Supreme Court of India asserted that such expansive
restrictions are unconstitutional and thus only narrow the scope of freedom of speech and
expression.

Earlier the Right to Know was not given much recognition despite the establishment of a
democratic regime in the country. It later gained relevance due to wider and creative
interpretation of Article 19(1)(a) of the Constitution of India, imbibing the Right to Know in
the fundamental right of Right to Freedom of Speech and Expression. Later after the
judgment in the abovementioned case, the Supreme Court of India followed the same
rationale in the case of Indian Express (Bombay) Private Ltd. v. Union of India 5. This
case involved the issue of excessive import duty levied on the print media. The Petitioners
challenged this in the Court stating the imposition as excessive and unreasonable. The Court
held that the Government should levy excessive taxes restricting the freedom of expression.

Taking precedence from the above-mentioned cases, the Supreme Court of India expanded its
view of the Right to Know in the ongoing case of S.P. Gupta v. Union of India 6 by ordering
the disclosure of the correspondence citing it in the interest of the public. Thus the Right to
Know is implicit in the Right to Freedom of Speech and Expression and restriction on it
cannot be placed on unreasonable grounds.

Freedom of Speech and Expression: US & India

Freedom of Speech and Expression is enshrined under Article 19(1)(a) and 21 of the
Constitution of India, but they are not absolute in nature. Some restrictions can be put to it,
but they have to be reasonable in nature. Restriction may be put to freedom of speech &
expression in the interest of the sovereignty, integrity and security of India, friendly relations
with the foreign states, public order, decency or morality, in relation to contempt court,
defamation and incitement to an offense.

The determination of the reasonability of restrictions has to be considered.

5
Indian Express (Bombay) Private Ltd. v. Union of India,[1986] AIR 515
6
SP Gupta v. Union of India,[1982] AIR 149
In America the earlier case laws laid down ‘bad tendency’ test for determining the
reasonability of a restriction. This test states that a restriction is reasonable unless it's
detrimental to the public welfare. Justice Oliver Wendell Holmes, a celebrated judge thought
that bad tendency test is too vague in nature. In the case of Schenck v. United States7 he laid
down the ‘Clear and Present test’ to determine the reasonability of the restriction. This test
only restricted those actions that pose a threat to state security and public order and not a
remote threat. This test was not followed consistently by the U.S. Supreme Court. A new test
was laid down, namely the ‘balancing test’ in Dennis v. United States8.

The Clear and the Present was further expanded in the case of Brandenburg v. Ohio9 and a
new test ‘imminent lawless action’ test was laid down and has been followed since by the
courts. This test states that the constitutional guarantee of free speech and free press does not
permit the state to forbid or proscribe advocacy of the use of force or violation of law, except
in the cases where there is imminent apprehension of the above prohibitions.

The test laid down in the above was also followed in Shri Indra Das v. State of Assam10 and
Arup Bhuyan v. State of Assam11. Since then it has also become the law of the land in India
too.

Public Interest Litigation

The Supreme Court of India articulated the concept of PIL in this case. PIL is a result of
judicial activism in India. The concept of PIL was firstly introduced in the case of
Hussainara Khatoon & Ors v. Home Secretary, State of Bihar 12. Justice P.N. Bhagwati
and Justice V.R. Krishna Iyer were the first judges to admit PIL’s in India. Before this case
the locus standing for filing a case lied on the person whose right had been infringed, but
after this case it expanded to everyone who in bona fide acted for the greater public good.

Justice P.N. Bhagwati in the ongoing case said the Court will readily respond even to a letter
addressed by such individual acting probono public, thereby making the procedure of the
court even more flexible. He said “It is true that there are rules made by this Court
prescribing the procedure for moving this Court for relief under Article 32 and they

7
Schenck v. United States, [1919] 249 US 47
8
Dennis v. United States, [1951] 349 US 494
9
Brandenburg v. Ohio, [1969] 395 US 444
10
Shri Indra Das v. State of Assam, [2011] 3 SCC 380
11
Arup Bhuyan v. State of Assam, [2011] 3 SCC 377
12
Hussainara Khatoon & ors v. Home Secretary, State of Bihar, [1979] AIR 1369
require various formalities to be gone through by a person seeking to approach this
Court. But it must not be forgotten that 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
and act upon it.”

Analysis of the S.P Gupta case

Although, this judgment proved to be a vital point for the future of the independence of the
judiciary, it still left some loopholes to be exploited by the appropriate authorities according
to their own convenience.

For instance, not giving primacy to the opinion of Chief Justice of India in case of differing
opinions meant giving an upper hand to the executive in the matters of appointment and
transfer of judges. This allowed the executive to appoint and transfer judges at their own
disposal.

One positive aspect that resulted from the ruling of this case the emphasis laid on the Right to
Know which is implicit in Article 19(1)(a) of the Constitution of India. The Public’s right to
information was well articulated in this case and it created more transparency in functions
related to administrative and judiciary. In the absence of this, misuse of power and abuse of
power vested in the officials ranging from a number of administrative functions to
appointment and transfer of judges, was inevitable.

Thus this case was the first step towards formulating a systematic procedure of appointment
and transfer of judges creating more transparency in the procedure regarding the appointment
of judges.

Later advancements

The ruling in the S.P. Gupta case was considered and subsequently overruled in the case of
Supreme Court Advocate On Record Association v. Union of India 13. This case was
famously known as ‘Second Judges Case’. The ruling in the S.P. Gupta case held that the
Chief Justice of India was not entitled to primacy in case of difference of opinions, but this
13
Supreme Court Advocate On Record Association v. Union of India, [1993] 4 SCC 441
overruled in the ‘second judges case’. The 9 Judge Bench not only overruled the S.P. Gupta
case but it also devised a new procedure for the appointment and transfer of judges which is
an integral part of the independence of the judiciary. For the same reason in this case,
primacy of the opinion of Chief Justice of India held to be essential.

After its judgment, in this case, the collegium system was adopted for the appointment of the
judges of the Supreme Court and High Court. Moreover, a majority in this case ruled that
advice given to the President of India must be constitutional. Any advice that does not come
within the ambit of this is not considered advice. This marks a landmark step in the
interpretation of Article 74.

Further moreover other provisions of the ruling of the S.P. Gupta case were elaborated in the
Special Reference 1 of 199814. It is famously known as the Third Judges Case. It is not a
case but an opinion delivered by the Supreme Court on responding to a question of law
regarding the collegiums system in India raised by the then President of India K.R.
Narayanan in his constitutional powers. In its judgment, a 9 judge bench was faced with the
issue of deciding that whether the expression "consultation with the Chief Justice of India" in
articles 217(1) 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.

In this case, the number of judges in the collegium system was increased. The collegium was
now to consist of the Chief Justice of India and the four other senior-most judges of the
Supreme Court. The 9 judge bench also explained the term ‘consultation’. It said, “the
expression consultation with the Chief Justice of India under Article 217(1) and 222(1)
requires consultation with the plurality of the 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 said articles.

In a Glance

A series of cases, affecting the independence of the judiciary, started in 1981 from the S.P.
Gupta case. All started from an order passed by the Court ordering the disclosure of
correspondence regarding the transfer and appointment of judges and ended up on

14
Special Reference 1 of 1998, Re, [1998] 7 SCC 739
formulating a systematic procedure, collegium for the appointment of judges in 1993 in the
ruling of what is famously called ‘Two Judges Case’.

In the S.P. Gupta case, primacy was given to the executive for the appointment of judges. In
this case it was held that if there is any difference of opinion regarding the appointment of
judges of High Court, the opinion of other Constitutional functionaries is not entitled. The
ultimate power of appointment of judges lied with the Central Government in accordance
with the constitutional practice.

But the same was overruled in 1993 when the Supreme Court passed its ruling in the
Supreme Court A.O.R. case where it held that the Chief Justice of India held the primacy of
opinion in case if there is a difference of opinion in the matters regarding appointment and
transfer of judges.

Further in 1993 in the ‘Third Judges Case’ Supreme Court further elaborated the meaning of
the term ‘consultation’ under Article 217(1) and 222(1). It held that there should be plurality
in the opinions of the judges, the sole opinion of the Chief Justice of India was not considered
consultation.

Thus it can be said that the S.P. Gupta case laid the foundation stone for the collegium system
which, with some modifications in subsequent cases, has been continuing till date.

References

1: The Indian Evidence Act 1872, s123

2: State of Punjab v. Sodhi Sukhdev Singh, (1961) AIR 493

3: State of UP v. Raj Narain, [1975] AIR 865

4: Romesh Thapar v. State of Madras,[1950] AIR 124

5: Indian Express (Bombay) Private Limited v. Union of India, [1986] AIR 515

6: SP Gupta v. Union of India,[1982]AIR 149

7: Schenck v. United States,[1919] 249 US 47

8: Dennis v. United States,[1951] 341 US 494

9: Brandenburg v. Ohio, [1969] 395 US 444

10: Shri. Indra Das v. State of Assam, [2011] 3 SCC 380

11: Arup Bhuyan v. State of Assam, [2011] 3 SCC 377

12: Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar, [1979] AIR 1369

13: Supreme Court Advocate On Record Association v. Union of India, [1993] 4 SCC 441

14: Special Reference, 1 of 1998, Re, [1998] 7 SCC 739

Brief about Author

Kunal Singh is pursuing B.A.L.L.B (Hon’s) from Vivekananda Institute of Professional

Studies, affiliated to GGSIPU. He is currently an Intern in ProBono India. He has participated
in many moot court competitions and model united nations at the college level. He is an avid
reader and has a keen interest in law. He has an interest in Constitutional Law, Competition
Law, and Corporate Law.