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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 Narain 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: The Supreme Court
refused the claim made by the Respondents for the
protection of the correspondence from disclosure under
Article 74(2).
The Supreme Court held that the disclosure of the
correspondence would be in the public interest.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 Madras.In this case the Madras Maintenance of
Public Order Act, 1949 authorized the Government to
put an unconstitutional restriction on freedom 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.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
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.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 States 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 States.The
Clear and the Present was further expanded in the case
of Brandenburg v.Ohio 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 Assam and Arup Bhuyan v. State of
Assam.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. 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 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 Pu

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