S.P. GUPTA V.

PRESIDENT OF INDIA

Sanket Sadh *1

I. Introduction
II. Facts of the case
III. Contentions and Arguments
IV. Issues before Supreme Court
V. Analysis of the Judgement
VI. Implications of the Judgement

I. Introduction

S.P. Gupta v. President of India2 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
Commission3 that helped the President in the selection of judges for the Supreme Court and
High Courts.

In S.P. Gupta v. President of India, the Supreme Court by a majority judgement held that the
term “consultation” used in Articles 124 and 217 was not “concurrence” – meaning that
although the President will consult judiciary, his decision was not bound to be in a
concurrence with them. The judgement tilted the balance of power in appointments of judges
in favor of the executive. This situation prevailed for the next 12 years.

1
* Student, Bennett University, Greater Noida
2
1982 SCC OnLine SC 149
3
Article 124A. The Constitution of India, 1950
 II. Facts of the case

The petitioner challenged the circular letter addressed by the Law Minister of the
Government of India to the Chief Minister of each state except North-East States, stating that
they should obtain consent from the Additional Judges working in the High Court to be
appointed as permanent judge in the High Court of other States.

4
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 petitions filed.

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.

III. Contentions and Arguments before the Supreme Court

The petitioner 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 5Article 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 6Article 124 has not been followed properly.

4
S.P. GUPTA V. PRESIDENT OF INDIA (DATED 18TH MARCH , 1981)
5
The Constitution of India, art. 216 provides ‘constitution of high courts’
6
The Constitution of India, art. 124 provides ‘establishment and constitution of supreme court’
The respondent argued that 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.

7
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.

IV. Issues before the Supreme Court

(i) Whether the petitioner had locus standi the matter despite the fact that their legal
rights were not injured by the circular letter.

(ii) Who has the final voice in the appointment of the Judges?

(iii) Whether the independence of judiciary was affected by the circular letter of the
law minister.

V. Analysis of the Judgement

7
The Indian Evidence Act 1872, Section 123
The Judges Transfer Case can be analyzed in various ways, 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.

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.

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, Venkata Ramaiah 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”

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 regarding the
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.”

VI. Implications of the Judgement

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 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 by
anyone else. While explaining the meaning of the word ‘consultation’, it was unanimously
held that it means full and effective consultation. The decision of constitutional functionaries
must be given after considering full and identical facts.

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
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.