Case Summary
| Citation | |
| Keywords | |
| Facts | |
| Issues | |
| Contentions | |
| Law Points | |
| Judgement | |
| Ratio Decidendi & Case Authority |
Full Case Details
(A.C. Gupta, D.A. Desai, E.S. Venkataramiah, P.N. Bhagwati, R.S. Pathak, S.Murtaza Fazal Ali andV.D. Tulzapurkar, JJ.)
[Independence of Judiciary; Public Interest Litigation, Locus standi, Privilege under Article 74(2)]
The basic question raised in this case related to the independence of the judiciary which was alleged to be eroded on account of short term extensions given to three Additional Judges of Delhi High Court; transfer of Chief Justices of two High Courts and a circular issued by the Union Law Minister to Chief Justices of High Courts and State Chief Ministers requiring them to obtain written consent of the persons whom they recommended for appointment as judges in the High Courts.
Impugned Circular
No. D.O. No. 66/10/81Jus. Ministry of Law, Justice and Company Affairs, India
“It has repeatedly been suggested to Government over the years by several bodies and forums including the States Reorganisation Commission, the Law Commission and various Bar Associations that to further national integration and to combat narrow parochial tendencies bred by caste, kinship and other local links and affiliations, one-third of the Judges of a High Court should as far as possible be from outside the State in which that High Court issituated. Somehow, no start could be made in the past in this direction. The feeling is strong, growing and justified that some effective steps should be taken very early in this direction.
2. In this context, I would request you to –
(a) obtain from all the Additional judges working in the High Court of your State their consent to be appointed as permanent Judges in any other High Court in the country. They could, in addition, be requested to name three High Courts, in order of preference, to which they would prefer to be appointed as permanent Judges; and
(b) obtain from persons who have already been or may in the future be proposed by you for initial appointment their consent to be appointed to any other High Court in the country along with a similar preference for three High Courts.
3. While obtaining the consent and the preference of the persons mentioned in paragraph 2 above, it may be made clear to them that the furnishing of the consent or the indication of a preference does not imply any commitment on the part of the Government either in regard to their appointment or in regard to accommodation in accordance with the preferences given.
4. I would be grateful if action is initiated very early by you and the written consent and preferences of all Additional Judges as well as of persons recommended by you for initial appointment are sent to me within a fortnight of the receipt of this letter.
5. I am also sending a copy of this letter to the Chief Justice of your High Court. sd/-
(P. Shiv Shankar)”
177
S.P. Gupta v. Union of India
A copy of the Circular letter was sent by the Law Minister to the Chief Justice of each High Court and the Chief Minister of each State also forwarded a copy of the circular letter to the Chief Justice of the High Court of his State. Presumably, each Chief Justice sent a copy of the circular letter to the Additional Judges in his court with a request to do the needful in viewof what was stated in the circular letter. The Chief Justice of Bombay High Court in any event addressed such a communication to each of the Additional Judges in his Court. The record showed that out of the total number of Additional Judges in the country, quite a few Additional Judges gave their consent to be appointed outside their High Court. The petitionersand other advocates practicing on the original as well as appellate side of the High Court of Bombay however took the view that the circular letter was a direct attack on the independenceof the judiciary which is a basic feature of the Constitution and hence the Advocates Association of Western India which represents advocates practicing on the appellate side, the Bombay Bar Association which represents advocates practicing on the original side and the Managing Committee of the Bombay Incorporated Law Society which represents Solicitors practising in the High Court of Bombay, passed resolutions condemning the circular letter as subversive of judicial independence and asking the Government of India to withdraw the circular letter. Since the circular letter was not withdrawn by the Law Minister, the petitionersmoved the High Court of Bombay challenging the constitutional validity of the circular letter and seeking a declaration that ‘if consent has been given by any Additional Judge or by any person whose name has been or is to be submitted for appointment as a Judge, consequent on or arising from the circular letter, it should be held to be null and void’.
P.N. BHAGWATI, J. – Locus Standi
13.When these writ petitions reached hearing before us, a preliminary objection was raised by MrMridul, appearing on behalf of the Law Minister, challenging the locus standi of the petitioners in Iqbal Chagla’s writ petition. He urged that the petitioners in that writ petition had not suffered any legal injury as a result of the issuance of the circular by theLaw Minister or the making of short-term appointments by the Central Government and they had therefore no locus standi to maintain the writ petition assailing the constitutional validity of the circular or the short-term appointments. The legal injury, if at all, was caused to the Additional Judges whose consent was sought to be obtained under the circular or who were appointed for short terms and they alone were therefore entitled to impugn the constitutionality of the circular and the short-term appointments and not the petitioners. The basic postulate of the argument was that it is only a person who has suffered legal injury who can maintain a writ petition for redress and no third party can be permitted to have access to the court for the purpose of seeking redress for the person injured. The same preliminary objection was urged by MrMridul against the writ petition of S. P. Gupta and the contention was that the petitioner in that writ petition not having suffered any legal injury had no locus standi to maintain the writ petition. So far as the writ petition of V. M. Tarkunde is concerned, MrMridul said that he would have had the same preliminary objection against the locus standi of the petitioner to maintain that writ petition because the petitioner had suffered no legal injury, but since S. N. Kumar had appeared, albeit as a respondent, and claimed reliefagainst the decision of the Central Government not to appoint him for a further term and sought redress of the legal injury said to have been caused to him as a result of such decision, the lack of locus standi on the part of the petitioner was made good and the writ petition was
178 S.P. Gupta v. Union of India
maintainable. MrMridul asserted that if S.N. Kumar had not appeared and sought relief against the decision of the Central Government discontinuing him as an Additional Judge, the writ petition would have been liable to be rejected at the threshold on the ground that the petitioner had no locus standi to maintain the writ petition. This preliminary objection urged by Mr.Mridul raised a very interesting question of law relating to locus standi, or as the Americans call it ‘standing’, in the area of public law. This question is of immense importance in a country like India where access to justice being restricted by social and economic constraints, it is necessary to democratize judicial remedies, remove technical barriers against easy accessibility to justice and promote public interest litigation so that the large masses of people belonging to the deprived and exploited sections of humanity may be able to realise and enjoy the socio- economic rights granted to them and these rights may become meaningful for them instead of remaining mere empty hopes.
14. The traditional rule in regard to locus standi is that judicial redress is available only to a person who has suffered a legal injury by reason of violation of his legal right or legally protected interest by the impugned action of the State or a public authority or any other person or who is likely to suffer a legal injury by reason of threatened violation of his legal right or legally protected interest by any such action. The basis of entitlement to judicial redress is personal injury to property, body, mind or reputation arising from violation, actual or threatened, of the legal right or legally protected interest of the person seeking such redress. This is a rule of ancient vintage and it arose during an era when private law dominated the legal scene and public law had not yet been born.
15. In the first place a ratepayer of a local authority is accorded standing to challenge an illegal action of the local authority. Thus, a ratepayer can question the action of the municipality in granting a cinema licence to a person, vide: K. RamadasShenoyv.Chief Officers, Town Municipal Council, Udipi [AIR 1974 SC 2177]. Similarly, the right of a ratepayer to challenge misuse of funds by a municipality has also been recognised by the courts vide: Varadarajanv.Salem Municipal Council [AIR 1973 Mad 55].
The reason for this liberalization of the rule in the case of a taxpayer of a municipality is that his interest in the application of the money of the municipality is direct and immediate and he has a close relationship with the municipality. The courts in India have, in taking this view, followed the decisions of the English courts. Secondly, if a person is entitled toparticipate in the proceedings relating to the decision-making process culminating in the impugned decision, he would have locus standi to maintain an action challenging the impugned decision, vide: Queenv.Bowman [1898 1 QB 663] where it was held that any member of the public had a right to be heard in opposition to an application for a licence and having such right, the applicant was entitled to ask for mandamus directing the licensing Justices to hear and determine the application for licence according to law. Thirdly, the statuteitself may expressly recognise the locus standi of an applicant, even though no legal right or legally protected interest of the applicant has been violated resulting in legal injury to him.For example, in JasbhaiMotibhai Desaiv. Roshan Kumar [AIR 1976 SC 578] this Court
179 S.P. Gupta v. Union of India
noticed that the Bombay Cinematograph Act, 1918 and the Bombay Cinema Rules, 1954 made under that Act, recognized a special interest of persons residing, or concerned with any institution such as a school, temple, mosque etc. located within a distance of 200 yards of the site on which the cinema house is proposed to be constructed and held that as the petitioner, a rival cinema owner, did not fall within the category of such persons having a special interest in the locality, he had no locus standi to maintain the petition for a writ of certiorari to quash the no objection certificate granted by the District Magistrate, to Respondents 1 and 2. It is obvious from the observations made at page 72 of the Report that if the petitioner had been a person falling within this category of persons having a special interest in the locality, he would have been held entitled to maintain the petition.
16. There is also another exception which has been carved out of this strict rule ofstanding which requires that the applicant for judicial redress must have suffered a legalwrong or injury in order to entitle him to maintain an action for such redress. It is clear that, having regard to this rule, no one can ordinarily seek judicial redress for legal injury suffered by another person; it is only such other person who must bring action for judicial redress. But it must now be regarded as well-settled law where a person who has suffered a legal wrong or a legal injury or whose legal right or legally protected interest is violated, is unable to approach the court on account of some disability or it is not practicable for him to move the court for some other sufficient reasons, such as his socially or economically disadvantaged position, some other person can invoke assistance of the court for the purpose of providing judicial redress to the person wronged or injured, so that the legal wrong or injury caused to such person does not go unredressed and justice is done to him. Take for example, the case of a minor to whom a legal wrong has been done or a legal injury caused. He obviously cannot on his own approach the court because of his disability arising from minority. The law therefore provides that any other person acting as his next friend may bring an action in his name for judicial redress, vide: Order XXXII of the Code of Civil Procedure. So also where a person is detained and is therefore not in a position to move the court for securing his release, any other person may file an application for a writ of habeas corpus challenging the legality ofhis detention. Of course, this Court has ruled in a number of cases that a prisoner is entitled to address a communication directly to the court complaining against his detention and seeking release and if he addresses any such communication to the court, the Superintendent of the prison is bound to forward it to the court and, in fact, there have been numerous instances where this Court has acted on such communication received from a prisoner and treating it as an application for a writ of habeas corpus, called upon the detaining authority to justify the legality of such detention and on the failure of the detaining authority to do so, released the prisoner. But since a person detained would ordinarily be unable to communicate with the outside world, the law presumes that he will not be able to approach the court and hence permits any other person to move the court for judicial redress by filing an application for a writ of habeas corpus. Similarly, where a transaction is entered into by the Board of Directors
180 S.P. Gupta v. Union of India
of a company which is illegal or ultra vires the company, but the majority of the shareholders are in favour of it and hence it is not possible for the company to sue for setting aside the transaction, any shareholder may file an action impugning the transaction. Here it is the company which suffers a legal wrong or a legal injury by reason of the illegal or ultra vires transaction impugned in the action, but an individual shareholder is permitted to sue for redressing such legal wrong or injury to the company, because otherwise the company being under the control of the majority shareholders would be without judicial redress.
17. It may therefore now be taken as well established that where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case of breach of any fundamental right of such person or determinate class of persons, in this Court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons. Where the weaker sections of the community are concerned, such as under-trial prisoners languishing in jails without a trial, inmates of the Protective Home in Agra, or Harijan workers engaged in road construction in the district of Ajmer, who are living in poverty and destitution, who are barely eking out a miserable existence with theirsweat and toil, who are helpless victims of an exploitative society and who do not have easy access to justice, this Court will not insist on a regular writ petition to be filed by the public- spirited individual espousing their cause and seeking relief for them. This Court will readily respond even to a letter addressed by such individual acting pro bono public. 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 seekingto 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. Today a vast revolution is taking place in the judicial process; the theatre of the law is fast changing and the problems of the poor are coming to the forefront. The court has to innovate new methods and devise new strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights and to whom freedom and liberty have no meaning. The only way in which this can be done is by entertaining writ petitions andeven letters from public-spirited individuals seeking judicial redress for the benefit of persons who have suffered a legal wrong or a legal injury or whose constitutional or legal right has been violated but who by reason of their poverty or socially or economically disadvantaged position are unable to approach the court for relief. It is in this spirit that the court has been entertaining letters for judicial redress and treating them as writ petitions and we hope and trust that the High Courts of the country will also adopt this pro-active, goal-oriented
181 S.P. Gupta v. Union of India
approach. But we must hasten to make it clear that the individual who moves the court for judicial redress in cases of this kind must be acting bona fide with a view to vindicating the cause of justice and if he is acting for personal gain or private profit or out of political motivation or other oblique consideration, the court should not allow itself to be activised at the instance of such person and must reject his application at the threshold, whether it be inthe form of a letter addressed to the court or even in the form of a regular writ petition filed in court. We may also point out that as a matter of prudence and not as a rule of law, the court may confine this strategic exercise of jurisdiction to cases where legal wrong or legal injury iscaused to a determinate class or group of persons or the constitutional or legal right of such determinate class or group of persons is violated and as far as possible, not entertain cases of individual wrong or injury at the instance of a third party, where there is an effective legal-aidorganisation which can take care of such cases.
18. The types of cases which we have dealt with so far for the purpose of considering the question of locus standi are those where there is a specific legal injury either to the applicant or to some other person or persons for whose benefit the action is brought, arising from violation of some constitutional or legal right or legally protected interest. What is complained of in these cases is a specific legal injury suffered by a person or a determinate class or group of persons. But there may be cases where the State or a public authority mayact in violation of a constitutional or statutory obligation or fail to carry out such obligation, resulting in injury to public interest or what may conveniently be termed as public injury as distinguished from private injury. Who would have standing to complain against such act or omission of the State or public authority? Can any member of the public sue for judicial redress? Or is the standing limited only to a certain class of persons? Or is there no one who can complain and the public injury must go unredressed? To answer these questions, it is first of all necessary to understand what is the true purpose of the judicial function?
We would regard the first proposition as correctly setting out the nature and purpose of the judicial function, as it is essential to the maintenance of the rule of law that every organ of the State must act within the limits of its power and carry out the duty imposed upon it by the Constitution or the law. If the State or any public authority acts beyond the scope of its power and thereby causes a specific legal injury to a person or to a determinate class or group of persons, it would be a case of private injury actionable in the manner discussed in the preceding paragraphs. So also if the duty is owed by the State or any public authority to a person or to a determinate class or group of persons, it would give rise to a correspondingright in such person or determinate class or group of persons and they would be entitled to maintain an action for judicial redress. But if no specific legal injury is caused to a person orto a determinate class or group of persons by the act or omission of the State or any public authority and the injury is caused only to public interest, the question arises as to who can maintain an action for vindicating the rule of law and setting aside the unlawful action or enforcing the performance of the public duty. If no one can maintain an action for redress of such public wrong or public injury, it would be disastrous for the rule of law, for it would be open to the State or a public authority to act with impunity beyond the scope of its power or inbreach of a public duty owed by it. The courts cannot countenance such a situation where the observance of the law is left to the sweet will of the authority bound by it, without any redress
182 S.P. Gupta v. Union of India
if the law is contravened. The view has therefore been taken by the courts in many decisions that whenever there is a public wrong or public injury caused by an act or omission of the State or a public authority which is contrary to the Constitution or the law, any member of thepublic acting bona fide and having sufficient interest can maintain an action for redressal of such public wrong or public injury. The strict rule of standing which insists that only a person who has suffered a specific legal injury can maintain an action for judicial redress is relaxed and a broad rule is evolved which gives standing to any member of the public who is not a mere busy body or a meddlesome interloper but who has sufficient interest in the proceeding. There can be no doubt that the risk of legal action against the State or a public authority byany citizen will induce the State or such public authority to act with greater responsibility and care thereby improving the administration of justice.
19. There is also another reason why the rule of locus standi needs to be liberalised. Today we find that law is being increasingly used as a device of organised social action for the purpose of bringing about socio-economic change. The task of national reconstruction upon which we are engaged has brought about enormous increase in developmental activities and law is being utilized for the purpose of development, social and economic. It is creating more and more a new category of rights in favour of large sections of people and imposing a new category of duties on the State and the public officials with a view to reaching social justice tothe common man. Individual rights and duties are giving place to meta-individual, collective, social rights and duties of classes or groups of persons. This is not to say that individual rightshave ceased to have a vital place in our society but it is recognised that these rights are practicably meaningless in today’s setting unless accompanied by the social rights necessaryto make them effective and really accessible, to all. The new social and economic rights which are sought to be created in pursuance of the Directive Principles of State Policy essentially require active intervention of the State and other public authorities. Amongst these social and economic rights are freedom from indigency, ignorance and discrimination as well as the right to a healthy environment, to social security and to protection from financial, commercial, corporate or even governmental oppression. More and more frequently the conferment of these socio-economic rights and imposition of public duties on the State and other authorities for taking positive action generates situations in which a single human actioncan be beneficial or prejudicial to a large number of people, thus making entirely inadequate the traditional scheme of litigation as merely a two-party affair. For example, the discharge of effluent in a lake or river may harm all who want to enjoy its clean water; emission of noxiousgas may cause injury to large numbers of people who inhale it along with the air; defective or unhealthy packaging may cause damage to all consumers of goods and so also illegal raising of railway or bus fares may affect the entire public which wants to use the railway or bus as a means of transport. In cases of this kind it would not be possible to say that any specific legal injury is caused to an individual or to a determinate class or group of individuals. What resultsin such cases is public injury and it is one of the characteristics of public injury that the act or acts complained of cannot necessarily be shown to affect the rights of determinate or identifiable class or group of persons: public injury is an injury to an indeterminate class of persons. In these cases the duty which is breached giving rise to the injury is owed by theState or a public authority not to any specific or determinate class or group of persons, but to the general public. In other words, the duty is one which is not correlative to any individual
183 S.P. Gupta v. Union of India
rights. Now if breach of such public duty were allowed to go unredressed because there is no one who has received a specific legal injury or who was entitled to participate in the proceedings pertaining to the decision relating to such public duty, the failure to perform suchpublic duty would go unchecked and it would promote disrespect for the rule of law. It would also open the door for corruption and inefficiency because there would be no check on exercise of public power except what may be provided by the political machinery, which at best would be able to exercise only a limited control and at worst, might become a participant in misuse or abuse of power. It would also make the new social collective rights and interests created for the benefit of the deprived sections of the community meaningless and ineffectual.
20. The principle underlying the traditional rule of standing is that only the holder of the right can sue and it is therefore, held in many jurisdictions that since the State representing the public is the holder of the public rights, it alone can sue for redress of public injury or vindication of public interest. We have undoubtedly an Attorney-General as also Advocates General in the States, but they do not represent the public interest generally. They do so in a very limited field; see Sections 91 and 92 of the Civil Procedure Code. But, even if we had a provision empowering the Attorney-General or the Advocate General to take action for vindicating public interest, I doubt very much whether it would be effective. The Attorney- General or the Advocate General would be too dependent upon the political branches of government to act as an advocate against abuses which are frequently generated or at least tolerated by political and administrative bodies. Be that as it may, the fact remains that we have no such institution in our country and we have therefore to liberalise the rule of standing in order to provide judicial redress for public injury arising from breach of public duty orfrom other violation of the Constitution or the law. If public duties are to be enforced and social collective ‘diffused’ rights and interests are to be protected, we have to utilise the initiative and zeal of public-minded persons and organisations by allowing them to move the court and act for a general or group interest, even though, they may not be directly injured in their own rights. It is for this reason that in public interest litigation – litigation undertaken forthe purpose of redressing public injury, enforcing public duty, protecting social, collective, ‘diffused’ rights and interests or vindicating public interest, any citizen who is acting bonafide and who has sufficient interest has to be accorded standing.
What is sufficient interest to give standing to a member of the public would have to be determined by the court in each individual case. It is not possible for the court to lay down any hard and fast rule or any strait-jacket formula for the purpose of defining or delimiting ‘sufficient interest’. It has necessarily to be left to the discretion of the court. The reason is that in a modern complex society which is seeking to bring about transformation of its social and economic structure and trying to reach social justice to the vulnerable sections of the people by creating new social, collective ‘diffuse’ rights and interests and imposing new public duties on the State and other public authorities, infinite number of situations are bound to arise which cannot be imprisoned in a rigid mould or a procrustean formula. The judge whohas the correct social perspective and who is on the same wavelength as the Constitution will be able to decide, without any difficulty and in consonance with the constitutional objectives, whether a member of the public moving the court in a particular case has sufficient interest to initiate the action.
184 S.P. Gupta v. Union of India
24. But we must be careful to see that the member of the public, who approaches the court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective. Andre Rabie has warned that “political pressure groups who could not achieve theiraims through the administrative process” and we might add, through the political process, “may try to use the courts to further their aims”. These are some of the dangers in public interest litigation which the court has to be careful to avoid.It is also necessary for the court tobear in mind that there is a vital distinction between locus standi and justiciability and it is notevery default on the part of the State or a public authority that is justiciable. The court must take care to see that it does not overstep the limits of its judicial function and trespass into areas which are reserved to the Executive and the Legislature by the Constitution. It is a fascinating exercise for the court to deal with public interest litigation because it is a new jurisprudence which the court is evolving, a jurisprudence which demands judicial statesmanship and high creative ability. The frontiers of public law are expanding far andwide and new concepts and doctrines which will change the complexion of the law and whichwere so far as embedded in the womb of the future, are beginning to be born.
25.Before we part with this general discussion in regard to locus standi, there is one point we would like to emphasise and it is, that cases may arise where there is undoubtedly public injury by the act or omission of the State or a public authority but such act or omission also causes a specific legal injury to an individual or to a specific class or group of individuals. In such cases, a member of the public having sufficient interest can certainly maintain an action challenging the legality of such act or omission, but if the person or specific class or group of persons who are primarily injured as a result of such act or omission, do not wish to claim any relief and accept such act or omission willingly and without protest, the member of the public who complains of a secondary public injury cannot maintain the action, for the effect of entertaining the action at the instance of such member of the public would be to foist a relief on the person or specific class or group of persons primarily injured, which they do not want.
26.If we apply these principles to determine the question of locus standi in the writ petition of Iqbal Chagla in which alone this question has been sharply raised, it will beobvious that the petitioners had clearly and indisputably locus standi to maintain their writ petition. The petitioners are lawyers practicing in the High Court of Bombay. The first petitioner is a member of the Bombay Bar Association, petitioners 2 and 3 are members of theAdvocates Association of Western India and petitioner 4 is the President of the Incorporated Law Society. There can be no doubt that the petitioners have a vital interest in the independence of the judiciary and if any unconstitutional or illegal action is taken by the Stateor any public authority which has the effect of impairing the independence of the judiciary,the petitioners would certainly be interested in challenging the constitutionality or legality of such action. The profession of lawyers is an essential and integral part of the judicial system and lawyers may figuratively be described as priests in the temple of justice. They assist the court in dispensing justice and it can hardly be disputed that without their help, it would be well-nigh impossible for the Court to administer justice. They are really and truly officers of the Court in which they daily sit and practice. They have, therefore, a special interest in
185 S.P. Gupta v. Union of India
preserving the integrity and independence of the judicial system and if the integrity or independence of the judiciary is threatened by any act of the State or any public authority,they would naturally be concerned about it, because they are equal partners with the Judges inthe administration of justice. Iqbal Chagla and others cannot be regarded as mere bystandersor meddlesome interlopers in filing the writ petition. The complaint of the petitioners in the writ petition was that the circular letter issued by the Law Minister constituted a serious threatto the independence of the judiciary and it was unconstitutional and void and if this complaintbe true, and for the purpose of determining the standing of the petitioners to file the writ petition, we must assume this complaint to be correct, the petitioners already had locus standi to maintain the writ petition. The circular letter, on the averments made in the writ petition,did not cause any specific legal injury to an individual or to a determinate class or group of individuals, but it caused public injury by prejudicially affecting the independence of the judiciary.
The petitioners being lawyers had sufficient interest to challenge the constitutionality of the circular letter and they were, therefore entitled to file the writ petition as a public interest litigation. They had clearly a concern deeper than that of a busybody and they cannot be told off at the gates. We may point out that this was precisely the principle applied by this Court to uphold the standing of the Fertiliser Corporation Kamgar Union to challenge the sale of a part of the undertaking by the Fertiliser Corporation of India in Fertilizer Corporation Kamgar Union v. Union of India [AIR 1981 SC 344]. Justice Krishna lyer pointed out that if a citizen “belongs to an organisation which has special interest in the subject-matter, if he has some concern deeper than that of a busybody, he cannot be told off at the gates, although whether the issue raised by him is justiciable may still remain to be considered”. We must therefore, hold that Iqbal Chagla and others had locus standi to maintain their writ petition. What we have said in relation to the writ petition of Iqbal Chagla and others must apply equally in relation to the writ petitions of S. P. Gupta and J. C. Kaira and others. So far as the writ petition of V. M. Tarkunde is concerned, MrMridul, learned Advocate appearing on behalf of the Law Minister, did not contest the maintainability of that writ petition since S. N. Kumar towhom, according to the averments made in the writ petition, a specific legal injury was caused, appeared in the writ petition and claimed relief against the decision of the Central Government to discontinue him as an Additional Judge. We must, therefore, reject the preliminary objection raised by MrMridul challenging the locus standi of the petitioners in thefirst group of writ petitions.
Disclosure of documents: Privilege
56.We now come to a very important question which was agitated before us at great length and which exercised our minds considerably before we could reach a decision. The question related to the disclosure of the correspondence exchanged between the Law Minister, the Chief Justice of Delhi and the Chief Justice of India in regard to the non-appointment of O.N. Vohra and S.N. Kumar as Additional Judges. The learned counsel for the petitioners and S.N. Kumar argued before us with great passion and vehemence that these documents were
186 S.P. Gupta v. Union of India
relevant to the inquiry before the court and they should be directed to be disclosed by the Union of India. This claim of the petitioners and S.N. Kumar for disclosure was resisted bythe Solicitor-General of India on behalf of the Union of India and MrMridul on behalf of the Law Minister. They contended that so far as O.N. Vohra was concerned his case stood on an entirely different footing from that of S.N. Kumar since, unlike S.N. Kumar who allied himself with the petitioners and actively participated in the arguments almost as if he was petitioner, O.N. Vohra though made a party respondent to the writ petition of V.M. Tarkunde did not appear and participate in the proceedings or seek any relief from the court in regard to his continuance as an Additional Judge. MrMridul on behalf of the Law Minister informed us that in fact O.N. Vohra had started practice in the Delhi High Court and his case could not be considered by us when he himself did not want any relief. So far as the case of S.N. Kumar was concerned the learned Solicitor-General on behalf of the Union of India conceded that thedocuments of which disclosure was sought on behalf of the petitioners and S.N. Kumar were undoubtedly relevant to the issues arising before the Court, but contended — and in this contention he was supported by MrMridul on behalf of the Law Minister — that they were privileged against disclosure for a two-fold reason. One was that they formed part of the advice tendered by the Council of Ministers to the President and hence by reason of Article 74, clause (2) of the Constitution, the Court was precluded from ordering their disclosure and looking into them and the other was that they were protected against disclosure under Section
123 of the Indian Evidence Act since their disclosure would injure public interest. Wepropose to consider these rival arguments in the order in which we have set them out, first in regard to O.N. Vohra and then in regard to S.N. Kumar.
58.That takes us to the case of S.N. Kumar which stands on a totally different footing, because S.N. Kumar has appeared in the writ petition, filed an affidavit supporting the writ petition and contested, bitterly and vehemently, the decision of the Central Government not to continue him as an Additional Judge for a further term. Since S.N. Kumar has claimed relief from the Court in regard to his continuance as an Additional Judge, an issue is squarely joined between the petitioners and S.N. Kumar on the one hand and the Union of India on the other which requires to be determined for the purpose of deciding whether relief as claimed in the writ petition can be granted to S.N. Kumar. Now, as we have already pointed out while discussing the scope and ambit of Article 217, there are only two grounds on which the decision of the Central Government not to continue an Additional Judge for a further term canbe assailed and they are, firstly, that there has been no full and effective consultation between the Central Government and the constitutional authorities required to be consulted under that Article and, secondly, that the decision of the Central Government is based on irrelevant grounds. It was on both these grounds that the petitioners and S.N. Kumar impugned the decision of the Central Government not to appoint S.N. Kumar as an Additional Judge for a further term and there can be no doubt that the correspondence exchanged between the Law Minister, the Chief justice of Delhi and the Chief Justice of India would be relevant qua both these grounds. The learned Solicitor-General on behalf of the Union of India and MrMridulon behalf of the Law Minister, with the usual candour and frankness always shown by them; did not dispute the relevance of these documents to the issues arising in the writ petition in regard to S.N. Kumar, but contended that they were protected against disclosure under Article74, clause (2) of the Constitution as also Section 123 of the Indian Evidence Act. This
187 S.P. Gupta v. Union of India
contention raised an extremely important question in the area of public law particularly in the context of the open society which we are trying to evolve as part of the democratic structure and it caused great concern to us, for it involved a clash between two competing aspects of public interest, but ultimately after inspecting these documents for ourselves and giving our most anxious thought to this highly debatable question, we decided to reject the claim for protection against disclosure and directed that these documents be disclosed by the Union of India. We now proceed to give our reasons for this decision taken by us by a majority of six against one.
59. The first ground on which protection against disclosure was claimed on behalf of the Union of India and the Law Minister was based on Article 74, clause (2) of the Constitution. It is clear from the constitutional scheme that under our Constitution the President is a constitutional Head and is bound to act on the aid and advice of the Council of Ministers. This was the position even before the amendment of clause (1) of Article 74 by the Constitution (42nd Amendment) Act, 1976, but the position has been made absolutely explicit by the amendment and Article 74, clause (1) as amended now reads as under:
There shall be a Council of Ministers with the Prime Minister at the Head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice.
What was judicially interpreted even under the unamended Article 74, clause (1) has now been given Parliamentary recognition by the constitutional amendment. There can therefore be no doubt that the decision of the President under Article 224 read with Article 217 not to appoint an Additional Judge for a further term is really a decision of the Council of Ministers and the reasons which have weighed with the Council of Ministers in taking such decision would necessarily be part of the advice tendered by the Council of Ministers to the President. Now clause (2) of Article 74 provides:
The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any Court.
The court cannot, having regard to this constitutional provision, embark upon an inquiry as to whether any and if so what advice was tendered by the Council of Ministers to the President and since the reasons which have prevailed with the Council of Ministers in taking a particular decision not to continue an Additional Judge for a further term would form part of the advice tendered to the President, they would be beyond the ken of judicial inquiry. But the Government may in a given case choose to disclose these reasons or it may be possible to gather them from other circumstances, in which event the Court would be entitled to examine whether they bear any reasonable nexus with the question of appointment of a High Court Judge or they are constitutionally or illegally prohibited or extraneous or irrelevant. But if these reasons are not disclosed by the Government and it is otherwise not possible to discover them, it would be impossible for the Court to decide whether the decision of the Central Government not to appoint an Additional Judge for a further term is based on irrelevant grounds. There would however not be much difficulty by and large in cases of this kind to gather what are the reasons which have prevailed with the Central Government in taking the decision not to continue an Additional Judge. Article 217 requires that there must be full and
188 S.P. Gupta v. Union of India
effective consultation between the President, that is, the Central Government on the one hand and the Chief Justice of the High Court, the Governor, that is, the State Government and the Chief Justice of India on the other and the “full and identical facts” on which the decision of the Central Government is based must be placed before the Chief Justice of the High Court, the State Government and the Chief Justice of India. The reasons which the Central Government is inclined to take into account for reaching a particular decision have therefore necessarily to be communicated to the Chief Justice of the High Court, the State Government and the Chief Justice of India and in the circumstances, it should ordinarily be possible for theCourt to gather from such communication, the reasons which have persuaded the Central Government to take its decision. Of course there may be cases where there are several reasonsdiscussed between the Central Government and the three constitutional authorities and someof these reasons may be relevant, while some others may be irrelevant and without inquiring into the advice given by the Council of Ministers to President, it may not be possible to determine as to what are the reasons, relevant or irrelevant, which have weighed with the Central Government in taking its decision and in such a case, the Court may not be able to pronounce whether the decision of the Central Government is based on irrelevant grounds.But ordinarily the correspondence exchanged between the Central Government, the Chief Justice of the High Court, the State Government and the Chief Justice of India would throw light on the question as to what are the reasons which have impelled the Central Government to take any particular decision regarding the continuance of an Additional Judge. This correspondence would also show whether the “full and identical facts” on which the decision of the Central Government is based were placed before the Chief Justice of the High Court,the State Government and the Chief Justice of India before they gave their opinion in the course of the consultative process. Of course if the communication between the Central Government, the Chief Justice of the High Court, the State Government and the Chief Justice of India has not taken place by correspondence but has been the subject-matter of only oral talk or discussion, it would become impossible for the Court to discover the reasons which have weighed with the Central Government in taking the decision not be continue the Additional Judge for a further term, unless of course the Central Government chooses to disclose such reasons and it would also become extremely difficult for the Court to decide whether the “full and identical facts” on which the decision of the Central Government is based were placed before the other three constitutional authorities and there was full and effective consultation as required by Article 217. The court would then have to depend onlyon such affidavits as may be filed before it and the task of the court to ascertain the truth would be rendered extremely delicate and difficult, as it has been in the writ petitions challenging the transfer of Mr Justice K.B.N. Singh, Chief Justice of Patna High Court. It is not at all desirable that when the Chief Justice of the High Court or the Chief Justice of India has to communicate officially with the State Government or the Central Government in regardto a matter where he is discharging a constitutional function, such communication should be only by way of oral talk or discussion unrecorded in writing. We think it absolutely essential that such communication must, as far as possible, be in writing, whether by way of a note or by way of correspondence. The process of consultation, whether under Article 217 or under Article 222, must be evidenced in writing so that if at any point of time a dispute arises as to whether consultation had in fact taken place or what was the nature and content of such
189 S.P. Gupta v. Union of India
consultation, there must be documentary evidence to resolve such dispute and an ugly situation should not arise where the word of one constitutional authority should be pitted against the word of another and the Court should be called upon to decide which of them is telling the truth. Oral talk or discussion may certainly take place between the Central Government and any other constitutional authority required to be consulted but it must be recorded immediately either in a note or in correspondence. Besides eliminating future dispute or controversy, the practice of having written communication or record of oral discussion ensures greater care and deliberation in expression of views and considerably reduces the possibility of improper or unjustified recommendations or unholy confabulations or conspiracies which might be hidden under the veil of secrecy if there were no written record. Moreover, such a practice would tend to promote openness in society which is the hallmark of a democratic polity. It would indeed be highly regrettable if, instead of following this healthy practice of having a written record of consultation, the Central Government or theState Government or the Chief Justice of the High Court or the Chief Justice of India were to carry on the consultation process either on the telephone or by personal discussion without recording it. But we find that fortunately .in the present case, unlike K.B.N. Singh’s case which falls for determination in the second batch of writ petitions, there was correspondence exchanged between the Law Minister, the Chief Justice of Delhi and the Chief Justice of Indiain regard to the continuance of S.N. Kumar and the question is whether this correspondence forms part of the advice tendered by the Council of Ministers to the President so as to be protected against disclosure by reason of clause (2) of Article 74.
60. The argument of the learned Solicitor-General was that this correspondence formed part of the advice tendered by the Council of Ministers to the President and he sought to support this argument by adopting the following process of reasoning. He said that theCouncil of Ministers cannot advise the President to appoint or not to appoint an Additional Judge for a further term without consulting the Chief Justice of the High Court and the Chief Justice of India. It is only after consulting them that appropriate advice can be tendered by theCouncil of Ministers to the President. When advice is tendered by the Council of Ministers to the President, it is open to the President under the proviso to clause (1) of Article 74 not to immediately accept such advice but to require the Council of Ministers to reconsider the advice generally or otherwise. If in a given case the President finds that advice has been givenby the Council of Ministers without consulting either the Chief Justice of the High Court orthe Chief Justice of India or both or that there has been no full and effective consultation with them as required by the Constitution, he may, and indeed he must, send the case back to the Council of Ministers and require them to reconsider the advice after carrying out full and effective consultation with the Chief Justice of the High Court and the Chief Justice of India. Now how can the President satisfy himself in regard to the fulfillment of the constitutional requirement of consultation with the Chief Justice of the High Court and the Chief Justice of India, unless the views expressed by the two Chief Justices are placed before him along with the advice tendered by the Council of Ministers. The exercise of the power of the President to appoint or not to appoint an Additional Judge is so integrally connected with the
190 S.P. Gupta v. Union of India
constitutional requirement of full and effective consultation with the Chief Justice of the High Court and the Chief Justice of India that at no stage can it be delinked from the views expressed by them on consultation and it would not be possible for the President to exercise this executive power in accordance with the Constitution unless the views of the two Chief Justices are placed before him. On the basis of this reasoning and as a logical consequence of it, argued the learned Solicitor-General, the view of the Chief Justice of Delhi and the Chief Justice of India obtained on consultation must be regarded as forming part of the advice tendered by the Council of Ministers to the President. The learned Solicitor-General sought to draw support for his argument from the decision of a Constitution Bench of this Court in the State of Punjabv.SodhiSukhdev[AIR 1961 SC 493]. We shall presently refer to this decision but before we do so, let us examine the argument of the learned Solicitor-General on principle.
61.There can be no doubt that the advice tendered by the Council of Ministers to the President is protected against judicial scrutiny by reason of clause (2) of Article 74. But can it be said that the views expressed by the Chief Justice of the High Court and the Chief Justice of India on consultation form part of the advice. The advice is given by the Council of Ministers after consultation with the Chief Justice of the High Court and the Chief Justice of India. The two Chief Justices are consulted on “full and identical facts” and their views are obtained and it is after considering those views that the Council of Ministers arrives at its decision and tenders its advice to the President. The views expressed by the two Chief Justices precede the formation of the advice and merely because they are referred to in the advice which is ultimately tendered by the Council of Ministers, they do not necessarily become part of the advice. What is protected against disclosure under clause (2) or Article 74 is only the advice tendered by the Council of Ministers. The reasons which have weighed withthe Council of Ministers in giving the advice would certainly form part of the advice, as held by this Court in State of Rajasthanv.Union of India [AIR 1977 SC 1361]. Vide the observations of Beg, C.J. at page 46, Chandrachud, J. (as he then was) at page 61, Fazal Ali,
J. at pages 120 and 121, where all the three learned Judges took the view that by reason of clause (2) of Article 74 the Court would be barred from inquiring into the grounds which might weigh with the Council of Ministers in advising the President to issue a proclamation under Article 356, because the grounds would form part of the advice tendered by the Councilof Ministers. But the material on which the reasoning of the Council of Ministers is based andthe advice is given cannot be said to form part of the advice. The point we are making may be illustrated by taking the analogy of a judgment given by a Court of Law. The judgment would undoubtedly be based on the evidence led before the Court and it would refer to suchevidence and discuss it but on that account can it be said that the evidence forms part of the judgment? The judgment would consist only of the decision and the reasons in support of it and the evidence on which the reasoning and the decision are based would not be part of the judgment. Similarly the material on which the advice tendered by the Council of Ministers is
191 S.P. Gupta v. Union of India
based cannot be said to be part of the advice and the correspondence exchanged between the Law Minister, the Chief Justice of Delhi and the Chief Justice of India which constituted the material forming the basis of the decision of the Central Government must accordingly be held to be outside the exclusionary rule enacted in clause (2) of Article 74.
62. We may now refer to the decision of the Constitution Bench of this Court in the State of Punjabv.SodhiSukhdev Singhon which the greatest reliance was placed by the learned Solicitor-General in support of his plea based on clause (2) of Article 74. The respondent who was the District and Sessions Judge in the erstwhile State of PEPSU was removed from service by an order dated April 7, 1953 passed by the President who was then in charge of the Administration of the State. The respondent made a representation against the order ofremoval which was considered by the Council of Ministers of the State as in the meantime thePresident’s rule had come to an end and the Council of Ministers expressed its views in a Resolution passed on September 28, 1955. But before taking any action it invited the Reportof the Public Service Commission. On receipt of the Report of the Public Service Commission, the Council of Ministers considered the matter again and ultimately on August 11, 1956 it reached the final conclusion against the respondent and in accordance with the conclusion, the order was passed to the effect that the respondent must be re-employed on some suitable post. The respondent thereupon instituted a suit against the successor State of Punjab for a declaration that his removal from service was illegal and in that suit he filed an application for the production of certain documents which included inter alia the proceedings of the Council of Ministers dated September 28, 1955 and August 11, 1956 and the Report of the Public Service Commission. The State objected to the production of these documents and ultimately the matter came before this Court. Gajendragadkar, J. (as he then was) speaking on behalf of the majority of the Court upheld the claim of privilege put forward on behalf of the State and so far as the Report of the Public Service Commission was concerned, the learned Judge held that it was protected against disclosure both under clause (3) of Article 163, and Section 123 of the Indian Evidence Act. We are at present concerned only with the claim for protection under clause (3) of Article 163 because that is an Article which corresponds to clause (2) of Article 74 insofar as advice by the Council of Ministers to the Governor is concerned. The learned Judge speaking on behalf of the majority, accorded protection to the report of the Public Service Commission under clause (3) of Article 163 on the ground that it formed part of the advice tendered by the Council of Ministers to the Rajpramukh. This view taken by the majority does appear prima facie to support the contention of the learnedSolicitor-General, but we do not think we can uphold the claim for protection put forward by the learned Solicitor-General by adopting a process of analogical reasoning from the majority view in this decision. In the first place, we do not know what were the circumstances in whichthe majority Judges came to regard the report of the Public Service Commission as forming part of the advice tendered to the Rajpramukh. There is no reasoning in the judgment of the learned Judge showing as to why the majority held that the report of the Public Service Commission fell within the terms of clause (3) of Article 163. The learned Judge has merely set out his ipse dixit, without any reasons at all, saying in just one sentence: “The same observation falls to be made in regard to the advice tendered by the Public Service Commission to the Council of Ministers.” It is elementary that what is binding on the court in
192 S.P. Gupta v. Union of India
a subsequent case is not the conclusion arrived at in a previous decision but the ratio of that decision, for it is the ratio which binds as a precedent and not the conclusion. Secondly, we may point out that we find it difficult to accept the view taken by the majority in this case. Weare unable to appreciate how the report of the Public Service Commission which merely formed the material on the basis of which the Council of Ministers came to its decision as recorded in the proceedings dated August 11, 1956 could be said to form part of the advice tendered by the Council of Ministers to the Rajpramukh. We do not think the learned Solicitor-General can invoke the aid of this decision in support of his claim for protection under clause (2) of Article 74.
