Union of India (UOI) and Ors.
|Citation||AIR 1982 SC 149|
|Court||Supreme Court of India|
|Case Number||Transferred Case Nos. 2, 6, 19, 20, 21, 22 and 24 of 1981 and W.P. No. 274 of 1981 and SPL (Civil) No. 1509 of 1981|
|Bench||A.C. Gupta, D.A. Desai, E.S. Venkataramiah, P.N. Bhagwati, R.S. Pathak, S. Murtaza Fazal Ali and V.D. Tulzapurkar, JJ.|
|Relevant Section||Article 124, 139, 217 of Indian Constitution|
|Authorities Referred||Halsbury’s Laws of England 4th Edn., Vol. I;|
|Date of Judgement||30th December, 1981|
|Prior History||From the Judgment and Order dated February 2, 1981 of the Patna High Court in C.W.J.C. No. 312 of 1981|
“It is true that the solution suggested is unusual, but unusual situations which pervert the judicial system require unusual and unorthodox remedies.”
-Eminent jurist H.M. Seervai in his book, Constitutional Law of India.
A Seven Judge bench of the Supreme Court judges spent four and a half months deliberating on what was popularly known as a Judges’ transfer case. Described in the course of the arguments as “the second most important case before the Supreme Court” (the first case was the “fundamental rights” case), it was a case of public interest litigation. Well-known lawyers from many parts of the country have put their time and energy into it. It was one of the great historical cases that were discussed in the Supreme Court.
India’s highest judiciary is arguably the most powerful national judiciary in the world.Internationally recognized for its inventive creativity, it fraught with problems. In order to address the problem of corruption in the higher judiciary, the weapon of transferring judges from one high court to another as a disciplinary measure is fashionable.
The judiciary headed by Judge P.N. Bhagwati gave the executive priority over the Supreme Court in appointing and transferring judges. From then on, the judges were appointed by the central government in terms of appointment and transfer, which resulted in the courts being burdened with people close to the government. Successful judges were rewarded with good posts and obligations after retirement. Defiant judges were punished with transfers. In a later case, however, the Supreme Court regained power after almost a decade.
When pronouncing his judgment on this case, popularly known as the Judges Transfer Case, the court found that at a time when the state was expanding its scope through development activities, the public needed judicial guarantees against the violation of their rights. Public interest litigation was in accordance with this law. The Apex court also found that actions of public interest are required to keep the state on alert, particularly in the performance of its duties to citizens.
The Supreme Court further differentiated between public interest litigation and traditional lawsuits. It said: “If the violation of this public obligation cannot be corrected because there is no one who has suffered a particular violation of the law … the violation of this public obligation will remain uncontrolled and promote the lack of respect for the rule of law.” It would also open the door to corruption and inefficiency, as there would be no control over the exercise of public power other than what the political machinery can offer, which at best can only exercise limited control and, at worst, could be a participant in misuse or abuse of power. It would also create new collective social rights … created in favour of private sections … meaningless. “
The basis for the concept of litigation of public interest was originally laid in India by Krishna Iyer J., and the ideal of litigation of “public interest” blossomed in the case of the transfer of judges.
Facts and Issues involved in the Case
The first written request was submitted to the Bombay High Court by Iqbal Chagla and others. The petitioners in this written petition were lawyers practising in the Bombay High Court, and they had contested a circular dated March 18, 1981, that Shri Shiv Shankar, Minister of Justice of the government, addressed to the Governor of Punjab and to the Chief Minister of the other states.
The second written request was issued by V.M. Objectives at the Delhi High Court. The petitioner in this written petition is a high-ranking lawyer who works in the Supreme Court, and he not only questioned the constitutional validity of the circular issued by the Minister of Justice but also questioned the practice used by the central government. by appointing additional judges in various higher courts. The reasons why the constitutional validity of the circular was questioned were the same as in the first petition presented by Iqbal Chagla and others, but as for the complaint about the appointment of additional judges, this is the written request for new forms that do not they were followed up on the first written request.
What made it necessary to include this complaint in the written petition was the fact that three other judges of the Delhi Supreme Court, O.N. Vohra, S.N. Kumar and S.B. Wad, who was originally appointed additional judge for a two-year term beginning March 7, 1979, and whose term expired at midnight on March 6, 1981, was only appointed an additional judge on March 7, for a term of three months. The judges were appointed in 1981 and, in the petitioner’s opinion, these short-term appointments were not justified by Article 224 and, in any case, affected the independence of the judiciary. Therefore, in addition to the declaration that the circular was unconstitutional and void, the petitioner claimed in the written petition a mandamus deed that instructed the central government to convert the positions of additional judges into permanent judges in the various higher courts in accordance with normal affairs. and the arrears in these higher courts, and in particular the conversion of 12 additional judges in the Delhi Supreme Court to permanent seats, taking into account the regular business and large arrears in this higher court.
The petitioner also raised the validity of O.N. Vohra’s short-term appointments. S.N. Kumar and S.B. Wad and claimed that there was a vacancy in a permanent position, O.N. Vohra should be appointed permanent judge to fill this position, and to the extent that S.N. Kumar and S.B. Wad was concerned that they should be appointed for a full two-year term.
The third written request was filed by J. L. Kalra and others at the Delhi High Court. The petitioners in this written petition were lawyers practising in the Delhi Supreme Court and prayed for a letter from mandamus to instruct the central government, an assessment of the number of permanents required by the Delhi Supreme Court. and additional judges, taking into account your current business and accumulated arrears, the court must create and appoint appointments for additional and permanent judges.
The fourth written petition was submitted by S. P. Gupta to the Allahabad High Court. The petitioner in this written petition was an attorney practising at the Allahabad High Court and had filed this written petition for essentially the same facilities as the written petitions of Iqbal Chagla and V.M. Tarkunde, with only this difference that the allegations he made relate to the appointment of additional judges to the Allahabad Supreme Court, the petitioner requested, among other things, an explanation that the three additional judges of the Allahabad Supreme Court, Namely, Mr. Justice Murlidhar, Mr. Justice A.N. Verma and Mr. Justice N.N. Mittal must have been appointed a permanent judge on the basis of the arrest warrants already issued and the circular of the Minister of Justice should be annulled.
The fifth written petition was filed by Ms. Lily Thomas, an attorney practising on the Supreme Court. This written request approved the transfer of Mr. Justice M.M. Ismail, Chief Justice of Madras High Court as the Chief Justice of Kerala High Court.What occasioned the filing of this writ petition was an order dated 19th Jan., 1981 made by the President transferring Mr. Justice M.M. Ismail, Chief Justice of the Madras High Court as Chief Justice of the Kerala High Court with effect from the date he assumed charge of his office.
The sixth petition in the lawsuit is filed by A. Rajappa, a lawyer practising on the Madras High Court. This written request was originally filed with the Madras High Court in accordance with Article 226 of the Constitution, and in this written request the petitioner questioned the constitutional validity of the transfer orders approved by the President on January 19, 1981 transferring Mr. Justice M.M. Ismail, Chief Justice of Madras High Court as the Chief Justice of Kerala High Court and Justice K.B.N. Singh, Chief Justice of Patna High Court as Chief Justice of Madras High Court. The main reasons why these two remittance orders were attacked as unconstitutional and void were essentially the same as those filed in the fifth lawsuit filed by Miss Lily Thomas, with only two additional reasons, namely that the transfers were made without prior consultation of the governors of the states.
In which the two senior judges were transferred, which violated Article 217 clause (1) and regarding the transfer of the Chief Justice K.B.N. Singh as Chief Justice of Madras High Court was concerned, it was not in the public interest since Chief Justice K.B.N. Singh did not know the Tamil language.
The seventh lawsuit is filed by P. Subramanian, a lawyer practising on the Madras High Court. The statements and sentences in this application for an order are essentially the same as in the sixth application for an order submitted by A. Rajappa.
The eighth application for a letter is that from D.N. Pandey and Thakur Ramapati Sinha, two lawyers practising at the Patna High Court. This written application was originally filed with the Patna High Court in accordance with Article 226 and constituted the constitutional validity of the orders transferring M.M. Ismail to the Kerala High Court and the Chief Justice K.B.N. Singh to the Madras High Court.
When these applications for an order reached the judicial hearing, Mr. Mridul lodged a preliminary objection, which appeared on behalf of the Minister of Justice and questioned the place of the petitioners in the application for Iqbal Chagla’s application. He urged that the petitioners in this judicial petition would not have suffered any legal harm from the issue of the circular by the Minister of Justice or the short-term appointments by the central government, and therefore would not have had any locus standi to maintain the written question, which upheld the circular’s constitutional validity or attacks short-term appointments. The legal damage was in any case inflicted on additional judges whose consent was to be sought under the circular or who were appointed for a short period of time, and therefore only they had the right to challenge the constitutionality of the circular and the circular, and not the petitioners.
The basic postulate of the argument was that only a person who has suffered legal harm can maintain an application for redress and no third party can have access to the Court of Justice to request redress for the injured person. Mr. Mridul 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.Regarding the writ petition from V.M. Tarkunde is concerned, Mr. Mridul said that he had the same preliminary objection to the petitioner’s locus standi to maintain this request in writing since the petitioner had not suffered any legal harm, but since S.N. Kumar had appeared, albeit as a defendant, demanding relief from the central government’s decision not to appoint him for another period and requesting redress for the legal harm caused by the decision, the lack of a locus standi of the petitioner was made good and the writ petition was maintainable. Mr. Mridul 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.
Mr. Mridul’s preliminary objection raised a very interesting legal issue regarding locus standi or, as the Americans call it ‘Standing’, in public law. This issue is of immense importance in a country like India, where access to justice is restricted by social and economic restrictions. It is necessary to democratize legal resources, remove technical barriers to facilitate access to justice and promote public interest litigation so that the great masses of people who are among the most disadvantaged and exploited parts of humanity can benefit from socio-economic aspects. that are granted to them. Realize and enjoy the rights, and those rights may be important to them rather than just empty hopes.
Question of Law
The issue raised was regarding the validity of Centre Government orders on the non-appointment of two judges and the disclosure of letter of communication between the Law Minister, the Chief Justice of Delhi High Court and the Chief Justice of India.
The judgement in the case related to the augmentation of the rule of locus standi, given by Bhagwati, J., is as follows and it was actually a landmark judgement in itself:
These petitions, which have been filed with various Supreme Courts and referred to this Court in accordance with Article 139 of the Constitution, raise questions of great constitutional importance that relate to the doctrine of location law and the independence of the judiciary and have been discussed in detail before us.
The reason is a lawyer who is adequately prepared for the decision that you want to make consciously or subconsciously. I will remember Sri Aurobindo’s brilliant adventure in his poem “Savitri”.
An inconclusive play is Reason’s toil; each strong idea can use her as its tool; accepting every brief she pleads her case, Open to every thought she cannot know.
The traditional rule regarding locus standi is that legal remedies are only available to a person who has suffered legal harm to another person due to violation of his or her right or interest legally protected by the contested act of the state or authority or other person or who is likely to suffer legal damages due to the imminent violation of their right or their legally protected interest by said act. The basis of the right to judicial remedies is a personal injury to the property, body, mind or reputation that results from a real or imminent violation of the legal right or the legally protected interest of the person requesting said remedies. This is an old-year rule and it came at a time when private law dominated the legal scene and public law was not yet born.
This extension of the Locus-Standi rule was largely responsible for the development of public law, as only the availability of an enforcement remedy endows the law with meaning and purpose, otherwise the law would only remain a scroll. on paper, an illusion of joke and one Promise of unreality. It is only through the liberalization of the regulation of the site that it is possible to effectively monitor the corridors of powers and prevent violations of the law.
Any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision. This is absolutely essential for maintaining the rule of law, furthering the cause of justice and accelerating the pace of realisation of the constitutional objective.
“Any member of the public who has a sufficient interest may bring an action for judicial redress for public damage resulting from a breach of a public duty or a breach of a provision of the Constitution or the law, and the fulfilment of this public duty and their Strive for compliance with such a constitutional or legal provision. This is imperative to uphold the rule of law, advance the cause of justice, and speed up the achievement of the constitutional goal.”-Iyer, J.
However, we must ensure that the member of the public who comes to the Court in such cases acts in good faith and not for personal or personal reasons or for political or other reasons. The Court of Justice must not allow its process to be misused by politicians and others to delay legitimate administrative measures or achieve a political objective. Political interest groups that have been unable to achieve their goals through the administrative process could try to use the courts to achieve their goals. These are some of the dangers in public interest litigation that the court must carefully avoid.
Before we part with this general discussion on the locus standi, we would like to emphasize one point, and there may be cases where there is no doubt that the act or omission of the state or agency, but such act, is a public violation, is present or omission also leads to a certain violation of the law of a person or a certain class or group of people. In such cases, a member of the public with a sufficient interest can certainly uphold an act that questions the legality of that act or omission, but whether the particular person or class or group of persons is primarily a consequence of such act or omission I do not want to claim relief and I voluntarily accept such act or omission without protest. The member of the public who complains of a secondary public injury cannot sustain the demand to entertain the act at the request of said member of the public, it would be the person or a particular class or group of people who suffered injuries are mainly imposing relief that does not they want.
In this case, the Court ruled that “in the event of any dispute between constitutional officials regarding the appointment of a judge to a High Court, the opinion of one of the constitutional officials is justified. However, the Indian government has to decide for itself what opinion to accept when appointing a particular person to the judge. If a High Court judge is appointed, the Chief Justice of India,again, this is not consent, it is the only consultation, and the central government is under no obligation to act in accordance with the opinion of the Chief Justice of India. The central government has the maximum power to appoint, and this is in line with constitutional practice in all democratic countries.
According to the petitioners, the word “may” have been used in Article 124 (2) and therefore the central government may or may not consult the High Court and Supreme Court judges when appointing judges. And if not, the opinion of the Chief Justice of India should be final. The Court explained that the word “may” in the article only makes it optional for the central government which judge should consult it. It is not optional for the central government to consult or not. The central government must therefore consult, but ultimately the power to appoint must lie with the central government. The case also suggested that there should be a college of judges for the appointment and transfer of judges. This case confirmed the executive’s priority in appointing and transferring judges.
In a case ruled by Judge Bhagwati, the Indian Supreme Court denied the government’s request for protection against disclosure and ordered the Union of India to disclose the documents containing the correspondence. An open and effective participatory democracy requires accountability and public access to information about how government works. Contact with the public in open government guarantees a clean and healthy administration and is an effective control against oppression, corruption and abuse or abuse of authority. The concept of an open government is the direct emanation of the right to knowledge, which is contained in the right to freedom of expression and expression guaranteed by Article 19, clause 1, letter an of the Indian Constitution. Therefore, the disclosure of information related to the operation of the government should be the rule and confidentiality of the exception, which is only justified when the strictest public interest requirement requires it.
With respect to the dispute with Article 74 (2), the Court ruled that although the advice of the Council of Ministers to the President was protected from judicial review, the correspondence in this case between the Minister of Justice, the President of the Supreme Court Delhi and the President of the Supreme Court of India was not only protected because he was mentioned in the council.
There are only two reasons why the central government’s decision on appointment and transfer are often challenged: (1) there was no full and effective consultation between the central government and the competent authorities, and (2) the decision was based on that decision irrelevant reasons The correspondence in question would be relevant for both reasons, which would require its disclosure. The public interest underlies the right to protection under the Evidence Law. From this point of view, the Court of Justice has to decide whether the disclosure of a particular document is against the public interest. You must reconcile the public interest in the fair administration of justice with the public interest to be protected by secrecy, and then decide whether the document should be protected.
Correspondence in the present case was found to be unprotected. It dealt with the appointment and transfer of judges, a matter of great public interest, and its disclosure would not have affected the public interest. Arresting poorly informed or captive public or political criticism was not enough to warrant the protection of correspondence. After examining the correspondence, the Court ruled that the central government order regarding non-designation was warranted.
Importance of the Case
Following this landmark decision, the Apex Court may have removed all obstacles to social justice and litigation of public interest has become an important justice strategy for the weaker segments of the US society. It is not only limited to the violation of fundamental rights, but also to the correction of legal errors or violations that are actually caused or threatened.
Because of this case, the judges of the Supreme Court of India have removed any preconceived notions or ideas and interpreted the constitution as it is and not as they had imagined it. They could have found a reason to change the language of the constitution at will if they wanted to, but that would have translated the constitution into an interpretation.
“Big cases like heavy cases make bad laws. In large cases, they are said to be large, not because of their real importance in shaping the law of the future, but because of an immediately overwhelming accident of interest that appeals to feelings and distorts the judgment. These immediate interests exert a kind of hydraulic pressure. what makes the previously clear seem doubtful and before which even established legal principles will bend. “- Holmes, J.
Although the judges of the Apex Court observed this statement, the importance of this case cannot be overshadowed. The extension of the locus standi doctrine is the fundamental and most important advantage of this case.
Although this case established the supremacy of the executive, the guidelines offered by this case in the area of litigation of public interest were large.
The investigation of litigation of public interest cannot be completed without the investigation of this case.
In this case, taking into account the constitutional mandate and the changing trends in Indian society, the judiciary has developed a new strategy to offer social justice to the poor anddisadvantaged who have been oppressed and exploited over the years.
The main social justice problems have been brought to justice in the context of public interest litigation, such as prison atrocities, women’s suffering, worker injustices, child exploitation, the plight of Harijans, drug abuse problems and cases of administrative errors or excesses. etc.
Courts undoubtedly do a good job for societies in general and the neglected and oppressed poor in particular through public interest litigation and apparently such cases, but in the absence of an effective enforcement mechanism, one really, wonders what his fruitful purpose is. Simple statements will hardly heal the victim’s wounds.
Despite some difficulties, the fact is that it has created a ray of hope in the area of justice and facing countless different problems in Indian society. It can be useful as a candle in the darkness of injustice.
An observation by David Hume is remarkable at the end:
“The compensation of a great state of society, be it monarchical or republican, according to the general laws is a work of such great difficulty that no human genius, however extensive it may be, can influence it for the mere reason and Reflection: The judgments of many should be united in this work, Experience must guide their work, time must bring it to perfection, and the feeling of discomfort must correct the mistakes that inevitably involve themselves in their first attempts and experiments. “
- DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA, Volume-1&2 (14th ed., 2010).
- M P JAIN, INDIAN CONSTITUTIONAL LAW, VOLUME-1, (7 ed., 2018).
- Dr. J.N. PANDEY, CONSTITUTION LAW OF INDIA, (44th ed., 2007)
BLACK LAW DICTIONARY
Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461.
S. P. Gupta v Union of India A.I.R. 1982 S.C. 149