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. These writs were filed in response to the non-
appointment of two judges and the transfer of a judge; it questioned 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 respondent denied
the claim and sought protection of correspondence under Article 74(2) of the Constitution of
India and Section 123 of the Indian Evidence Act, 1872.”

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?

ANALYSIS

The“Supreme Court refused the claim made by the respondents for the protection of the
correspondence from the disclosure under Article 74(2) of the Constitution of India and
Section 123 of the Indian Evidence Act. The Court reasoned that a particular document
regarding the affairs of the state is only immune from disclosure when disclosure is clearly
contrary to public interest, and in this case, the appointment and transfer is of immense public
interest. While deciding the afore-mentioned issues, the Court also discussed Article 217 of
the Constitution, non-entitlement of the Chief Justice of India to primacy in case of difference
of opinion, meaning of consultation under Article 217 and 222 of the Constitution,
independence of judiciary, collegium system, right to know, and public interest litigation.”

“Although, this judgment proved to be a vital point for the future of the independence of the
judiciary, the fact that the Apex Court denied the petitioners what they asked for cannot be
ignored. The Court made no order since there was a majority against granting any one of the
many things sought in the writ petition. For instance, Court did not declare that the Law
Minister’s circular is unconstitutional, the appointment of Additional Judge – Mr. Justice
S.N. Kumar should be renewed or that the transfer of Chief Justice K.B.N Singh from Patna
to Madras was unconstitutional. However, in reaching these conclusions, the members of the
Court passed over much fascinating grounds, giving intriguing insights into the attitudes of
the Indian judiciary towards their own role and that of the Constitution in context of the India
today. Some of the most interesting observations are obiter, but that does not, necessarily,
take away the importance of this case.”

The“very fact that the Supreme Court was prepared to entertain and decide so many facets of
the Indian judiciary indicates the involvement of the Indian courts in questions which in some
countries are reserved for the executive to decide, or in other words, are politically sensitive
to involve the judges. The case being about the judges made the judges stress upon the
independence of the judiciary, which is one of the basic structures of our Constitution.”

Importantly, “the Court took a very broad view of the question of locus standi. This is
because the Court was prepared to hear the petition of members of the Bar on the Law
Minister’s circular, which personally affected none of the petitioners.”

Another“positive aspect that resulted from the ruling of this case is the emphasis laid on the
Right to Know that 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.”

While“this judgment is celebrated on many levels, one cannot turn a blind eye on the fact that
the case has 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.”

CONCLUSION

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. Though, the primacy given to the executive for the appointment of judges in this case
was overruled in Supreme Court Advocate on Record Association v. Union of India, (1993) 4
SCC 441, the S.P. Gupta case is said to have laid the foundation stone for the collegium
system, which, with some modifications in subsequent cases, has been continuing till date.”