LexS.P. GUPTA & ORS. ETC. ETC. versus UNION OF INDIA & ORS. ETC. ETC.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A.
SP. GUPTA & ORS. ETC. ETC.
v.
UNION OF INDIA & ORS. ETC. ETC.
December 28, 1981
[ P.N. BHAGWATI, A.C. GUPTA, S. MURTAZA FAZAL Au
V.D. TULZAPURKAR, D.A. DESAI, R.S. PATHAK AND
E.S. VENKATARAMIAH, JJ. ]
365
1, Independence of Judiciary, scope and limitations of the concept-Basic.
structure of the Constitution-Constitution of India, 1950, Preamble, Articles 124,
216, 217 222 and 224.
2. Public interest litigation-Right to challenge executive order/action os
affecting the independence of judiciary by persons other than the aggrieved party-
Locus standi of lawyers to raise issues like fixation of strength of Judges in each
High Court, appointment and re-appointments, of addtiona/ Judges, short term
appointments, transfer, etc. by means of petitions either under Article 226 or 32
of the Constitution of India, explained.
3. Public law-Protection against
disclosure
of documents claiming
privilege-Evidence Act, sections 123 and 162, difference in-Whether the Union
of India could claim privilege in respect of the correspondence between the high
dignitaries which formed the opinion regarding transfer of Judges/gram of exten-
sion to the additional Judges-Constitution of India, Articles 19(1) (a), 14, 217
and 224.
4. Freedom of the press-Disc11ssions based on the disclosed materials on
the grounds on which recommendations were made to the President for not grant-
ing extension to the additional Judges, when the matter is sub-judice tan/amounts
'\
to trial by press, not authorised by law-Constitution of India, Articles 19( /)(a)
and 32.
5.
Consent to be appointed to any of the three preferred High Courts, as a
J11dge, by the proposed appointee and the sitting additional Judges-Validity of
such a circular letter requiring consent, dated March
18, 1981, of the Law
Minister-Constitution of India, 1950, Articles 217 and 222.
A
B
c
D
E
F
G
6.
Constitution of India, Articles 216, 224, and 226-Appointm~nt of High
H
Court Ju1ge<-Difference between sitti~.~ flcdifi!ional Jl!d!{e·I q~rf proposed appointee
for initial recruitment. explained.
366
SUPRBMB COURT REPORTS
(1982] 2 s.c.R'
A
7. Transfer of a Judge from one High Court to another-Constitution of
B
c
India, 1950, Articles 222-Notification dated January 19, 1981 issued by the
President of India transferring Mr. K.B.N. Singh, Chief Justice of Patna to Madras,
validity of.
8. Constilution of India, Article 222(1)-Legal effect of an order of transfer
of a Judge from one High Court to another.
9. High Courts-Inter se-status-All High Courts have same
status-
Constitution of India, Articles 224 ( 4), 139A (2), 214 (2) & ( 3) before deletion in
1956, 222, 366(14) 376, Schedule VII List I Entry 78, discussed.
10. Constitution of India, Article 222 (])-Power to transfer a Judge,
nature and extent of use, explained.
11. Constitution of India, Article 222, power to formulate general po/icy of
transfers of Judges or Chief Justices from one High Court to another-Article 222
vests such power.
12. Constitution of India, Article 222 (/)-The word "Chief Justice" is
included in the expression "a Judge of the High Court"-Transfer of Chief Justice
D
of High Court from one State to another, therefore, falls within the purview or
Article 222( 1) of the Constitution.
13. Constitution of India, Articles 215, 216 and Proviso (c) to Arlicle 217
(1)-Whether Judges of lhe High Court constitute a single All India cadre for
purpose of appointment and transfer.
E
14. Constitution of India, Article 222-Proposal for transfer of a Judge or
F
G
H
Chief Justice of a High Court-The provisions of Article 222 must necessarily be
complied wir!z irrespective of the fact which authority initiates the proposal.
15. Constitution of India, Article 222 (2)-Transfer of a High Court Judge/
Chief Justice-Simultaneous fixation of compensatory allowance-Transfer order
and an order fixing compensatory allowance need not be simultaneous.
16. Constitution of India, Article 217 (/} proviso (e) and Article 222-
Distinction between "transfer" and "appointment"-Taking afresh oath by a trans·
feree Judge does not make a transfer a fresh appoil1tment.
· 17. Onus probandi-Constitution of India, Article 222 (1) read with Evi·
dence Act, sections JOI to 104-0nus of justifying transfer of a Judge is upon the
State.
18. Constitution of India, Article 222 (1)-Transfer of a Judge-Advice
tendered by the Chief Justice of India must, ordinarily, be accepted by Excerpt shown. Read the full judgment & AI analysis in Lexace.