ObituariesOP. ED.

Former Uttar Pradesh Advocate General and Senior Advocate SP Gupta passed away on January 16, 2022.

SP Gupta was enrolled as a pleader to the Allahabad High Court in 1951 and an advocate in March 1960. He was designated as senior advocate in 1979. He served as the Advocate General for the State of Uttar Pradesh twice.[1]

As the name of the case suggests, Mr SP Gupta played a key role in the case that paved way for Judicial Independence that consequently resulted into creation of the collegium system for appointment of judges. A 7-judge bench of P.N. Bhagawati, A.C. Gupta, Syed Murtaza Fazal Ali, V D. Tulzapurkar, D.A. Desai, R.S. Pathak and E.S. Venkataramiah, JJ decided the case that is famously known as the ‘First Judges Case’ or the ‘Judges Transfer case’.

Here’s a recap of SP Gupta v. Union of India, 1981 Supp SCC 87, the first of the ‘Three Judges Cases’:

Public Interest Litigation:

Justice Bhagwati said that the Court will readily respond even to a letter addressed by such individual acting pro bono publico, thereby, making the procedure of approaching the Court 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.”

Power of appointment of judges:

Justice Venkataramiah, in his verdict, wrote that under the scheme of Article 217 the power to appoint a Judge of a High Court is vested in the President. However, If there are conflicting opinions the President has to weigh them after giving due consideration to each of them and take a decision on the question. 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.”

CJI not being entitled to primacy in case of difference of opinion:

“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 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.” – Justice Bhagwati

Consultation:

“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.” – Justice Desai

It was, however, clarified that the President will have the right to differ from the other constitutional functionaries i.e. Chief Justice of India, Chief Justice of the concerned High Court and the Governor of the State, for cogent reasons and take a contrary view.

Independence of Judiciary:

When it was argued that the Executive should have no voice at all in the matter of appointment of Judges of the superior courts in India as the independence of the judiciary which is a basic feature of the Constitution would be in serious jeopardy if the executive can interfere with the process of their appointment, Justice Venkataramiah 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 for appointment of judges:

It was this case, where the idea of introducing collegium system was first tabled. Justice Bhagwati, in his judgment, wrote:

“We would rather suggest that there must be a collegium to make recommendation to the President in regard to appointment of a Supreme Court or High Court Judge. The recommending authority should be more broad based and there should be consultation with wider interests. If the collegium is composed of persons who are expected to have knowledge of the persons who may be fit for appointment on the Bench and of qualities required for appointment and this last requirement is absolutely 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.”

The other 2 limbs of the ‘Three Judges cases”

The SP Gupta verdict was followed by two more cases that questioned the interference of executive in the appointment of judges.

“The expression “consultation with the Chief Justice of India” in Articles 217(1) and 222(1) of the Constitution of India requires consultation with a plurality of 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 the said articles.”


[1] SP Gupta is new advocate general, TOI, Last updated Mar 19, 2012

Case BriefsHigh Courts

Madras High Court: B. Pugalendhi, J., while refusing to recuse from the present case reminded himself of the harsh criticism of Justice V.R. Krishna Iyer.

Justice V.R. Krishna Iyer had addressed a letter to His Excellency the Governor of Kerala as well as the Chief Justice of Kerala High Court, on the recusal of three Judges of the Kerala High Court from hearing an appeal, stated that every Judge is obliged by his oath of his office to hear every case posted before him and do justice and that not to hear a case or decline to do justice is breach of the solemn obligation vested in them. In fact, His Lordship has also opined that such recusal should invite impeachment by Parliament or dismissal by the President.

Present criminal appeals were filed by the State against the Judicial Magistrates’ Order under Section 256 of Criminal Procedure Code, 1973.

Magistrate had dismissed the District Collector’s complaint about his non-appearance under Section 256 Criminal Procedure Code, 1973 and acquitted the respondents/accused from the charges under Section 4(1-A) read with 21(1) of the Mines and Minerals (Development and Regulation) Act, 1957.

Further complaints were also filed to confiscate the multicolour granite block seized from the accused’s land and dispose of the same.

Aggrieved in view of the above, State preferred the criminal appeals.

Certain observations that were made by the Magistrate:

  • Anshul Mishra, I.A.S, the then-District Collector who had filed the complaints in his official duty as the District Collector was on the date of complaint he was not the District Collector and hence committed the offence under Sections 181, 182, 193 and 199 of Penal Code, 1860.
  • Special Public Prosecutors also aided the complainant in the said offence.

In view of the above observations, Anshul Mishra, I.A.S, the then-District Collector filed the Crl. OP (MD) Nos. 7655 & 7656 of 2016 to expunge the remarks made against him.

Grievance

Petitioner stated that on receiving the complaints in regard to illegal mining, transportation and storage of minerals, he formed a special team to conduct a comprehensive, scientific, systematic inspection in all the granite quarries in Madurai.

Based on the special teams report District Collector took action in accordance with the Mines and Minerals (Development and Regulation) Act, by filing the complaints before the competent Court under Section 200 CrPC read with Section 22 of the Mines and Minerals (Development and Regulation) Act.

Analysis

“Nowadays, if anybody, reminds the duty, they are viewed differently. As an individual person, everybody expects their servants to be loyal and sincere to them, but, at the same time, if the Government servant does his duty sincerely and diligently, it is viewed in a different manner, as a sin. This is how our values have evolved.”

Respondents / Accused have pressurised this Court to get away from the cases.

Bench stated that,

“…though the respondents / accused pointed out in their complaint that as a Government Counsel I appeared against these respondents / accused in certain proceedings for more than 200 occasions, they did not point out any single instance, where I misled or wrongly projected the case of the respondents / accused, in those proceedings.”

Judicial Independence

Court added that “Judicial Independence” is defined as a pre-requisite to the rule of law and a fundamental guarantee of fair proceedings.

A Judge shall exercise the judicial function independently on the basis of the Judge’s assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.

In the Supreme Court’s decision of Trishala v. M.V. Sundar Raj, (2010) 15 SCC 714, it was held that simply because the Judge whilst at the Bar was a Standing Counsel for the Municipal Corporation, it cannot be held that he is precluded either in law or on propriety from hearing any case in which a Corporator is a party in his personal capacity; more so, when the relevant facts were not brought to his notice.

Order of Acquittal

In the present matter, with no complicated legal issue, appeals have been pending for 3 years, respondents/accused are enjoying the acquittal for 3 years even without a trial and they may intent to retain this favourable order of acquittal for some more time. But the Advocates, being the Officers of the Court, owe certain duties not only to their clients, but also to the Court.

Mud on the Judge

The Advocates before throwing mud on the Judge must realise that by doing so, they are attacking themselves and the Institution. As a Judge and an Advocate, we command certain respect and privileges in the society and the same is derived from this Institution and its judgment.

Non-Appearance of Complainant

Appeals are arising out of an order passed under Section 256 CrPC for the non-appearance of the complainant. The grievance of the State in the appeals is without providing an opportunity to adduce evidence, the learned Judicial Magistrate adopted a shortcut method to acquit the accused.

“The parties, who are enjoying favourable orders, will not come forward to proceed with the case and the other side are the ultimate sufferer.”

“District Collector/petitioner in Criminal Original Petitions is vindicated for having discharged his duty diligently. He is waiting for justice for the past four years. But the petitions could not be taken up for hearing, one way or the other. “

Judicial Magistrate’s Order has not followed the basic principles in deciding the issue.

Court added that, most of the Government servants lose their sincerity since their salary is assured, even if they do not work. At present, very few officials are working with honesty, integrity and sincerity and even those officers are afraid of the consequences and avoid their duties.

Illegal Mining Activities

Object for which the amendments were made in the Mines and Minerals (Development and Regulation) Act, by introducing the provisions under Sections 4(1A), 21, 21(4A) and 23(C) by Act 38 of 1999 is only to curb the rampant illegal mining activities.

Bench stated that,

The Tamil Nadu Prevention of Illegal Mining, Transportation and Storage of Minerals and Mineral Dealers Rules, 2011, was framed by the State only on the powers conferred under Section 23(C) and it cannot override the provisions under Section 4(1-A), 21 and 21(4-A) of the Act.

Hence, the Judicial Magistrates’ order referring the provisions under the Tamil Nadu Prevention of Illegal Mining, Transportation and Storage of Minerals and Mineral Dealers Rules, 2011, when the complaint itself was filed for taking cognizance under the Mines and Minerals (Development and Regulation) Act, was not proper.

In view of the above, the impugned order cannot be maintained.

“Condemnation of the petitioner without giving him an opportunity of being heard was a complete negation of the fundamental principle of natural justice.”

The following directions were passed by the Court:

  • Matter to be remitted back to the trial court.
  • Observations made by the Judicial Magistrate as against the District Collector and Special Public Prosecutors stand expunged.
  • District Collector shall appear before the trial court within a period of 2 months.

Before parting, Court expressed with pain that even for answering 1+1= 2, at times, it has to explain in detail. [Anshul Mishra v. District Collector, 2020 SCC OnLine Mad 1725, decided on 12-08-2020]

Hot Off The PressNews

Supreme Court: After hearing Attorney General KK Venugopal, appearing for the Supreme Court and advocate Prashant Bhushan, appearing for the RTI activist Subhash Chandra Agarwal, the 5-judge bench of Ranjan Gogoi, CJ and N V Ramana, D Y Chandrachud, Deepak Gupta and Sanjiv Khanna, JJ reserved the verdict in the matter where an RTI Activist had sought disclosure of information on appointment of judges, thereby bringing collegium under RTI.

For the past decade, the Supreme Court has refused to divulge information under RTI about the collegium’s confidential communications with the government. The collegium recommends judges for the High Courts and the apex court. The Supreme Court, after losing legal battles before the Central Information Commission (CIC) and the Delhi High Court, finally had to appeal to itself to protect the collegium’s workings.

AG’s submission

AG represented the Supreme Court’s Central Public Information Officer (CPIO), who is the authority tasked to respond to RTI queries related to the court. He argued before the Court that opening up the “highly-sensitive” correspondence of the Supreme Court’s collegium and its workings to the Right to Information(RTI) regime would make judges and the government “shy” and “destroy” judicial independence. He also asserted that if the RTI will be applied to the collegium, its member judges would not be able to sit back and have a free and frank discussion for fear that their confidential views may later come into the public domain.

He said,

“If reasons for his rejection come into public domain, will a judge be able to function independently? The entire future of the judge is ruined. The public, litigants lose their confidence in him. A judge whose integrity has been questioned and overlooked for appointment or elevation, is handicapped. He cannot go to the press to clear the air. Disclosure of highly sensitive communication under RTI will risk the very existence of the judicial way of functioning. So, the information should be kept confidential.”

Acknowledging that the right to know was part of the right to free speech, AG said the right to free speech was, however, subject to reasonable restrictions.

On the question of disclosure of personal assets of judges, AG argued even  under RTI was an “unwarranted intrusion” into their privacy.

Prashant Bhushan’s Submissions

Arguing on behalf of RTI activist Subhash Chandra Agarwal, advocate Prashant Bhushan said that the Court has always been on forefront of right to information and transparency. He said that even in SP Gupta judgment, the 7-judge bench said that non disclosure of information would cause greater harm to public interest. He further argued that even in the absence of RTI Act, the Court has held that candidates contesting elections should disclose their criminal antecedents.

He said,

“You have asked centre to follow transparency in appointment in other wings of the Government. You can’t claim exemption from disclosure of information relating to appointment of judges.”

He also said that people are entitled to know about appointment of judges in a democracy. He told the Court,

“you have given judgments on transparency but deny information when it comes to you.”

He also said,

“An honest officer making a decision will not be cowed down by the fear that his reasoning or decision will become public tomorrow.”

When the bench said that a person may not want the information relating to his sexual orientation to be disclosed or the fact that he/she is suffering from schizophrenia, Bhushan agreed and said that Section 10 of RTI Act that provides exemption will be applicable in such cases.

On the issue of disclosure of assets of the judges, Bhushan said that  the RTI applicant is merely which judges submitted there asset details to CJI. 

(With inputs from The Hindu)