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Whether Decision of Chief Justice of India Holds Primacy Over Other Judges

S.P. Gupta v. Union of India, AIR 1982 SC 149: (1981) Supp SCC 87: (1982) 2 SCR 365

Facts: In March 1991, the Law Minister of the Union of India addressed a letter dated 18-3-1991 to various Chief Ministers in which he asked them to inquire of additional judges in the High Courts of their states; whether they would consent to their transfer as judges of High Courts outside their states. The validity of this circular was challenged in a number of writ petitions filed in different High Courts. They were ultimately transferred by the Supreme Court to itself. Besides the validity of the circular dated 18-3-1991, the writ petitions raised several other issues namely, independence of judiciary, primacy of the decision of the Chief Justice of India in the appointment of Judges, etc.


  1. Locus standi of lawyers to file writ petitions by way of public interest litigation.
  2. Independence of judiciary.
  3. Validity of the Union Law Minister’s circular dated 18-3-1991.
  4. Nature of power to appoint/transfer High Court Judges and the procedure to be followed in such appointment/transfer.
  5. Validity of transfer of Judges from one High Court to another High Court and the matters to be taken into consideration, viz., public interest, personal inconvenience, regional language, consent of the concerned judge, during such transfer.
  6. Other incidental legal aspects like privileged documents, interpretation of Constitution, constitutional convention, etc.

Judgment: The practicing lawyers have a vital interest in the independence of judiciary and if any unconstitutional or illegal action is taken by the State or any public authority which has the effect of impairing the independence of the judiciary, they would certainly be interested in challenging the constitutionality or legality of such action.

The principle of independence of the judiciary is not an abstract conception but it is a living faith which must derive its inspiration from the constitutional charter and its nourishment and sustenance from the constitutional values. The judiciary has a socio-economic destination and a creative function. If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the rule of law; and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective. The independence of the judiciary is vital for the establishment of real participatory democracy, maintenance of the rule of law as a dynamic concept and delivery to social justice of the vulnerable sections of the community.

There is no legal infirmity or any abuse or misuse of authority on the part of the Law Minister in issuing the circular letter. The circular letter does not violate the provisions of clause (1) of Article 217 or clause (1) of Article 222 nor does it offend against any other constitutional or legal provision in that it is not in the nature of a public order made by a public authority and the letter does not appear to have been issued by the Law Minister in the exercise of any constitutional or legal power.

Article 217(1) provides that the appointment of a High Court Judge shall be made after consultation with the Chief Justice of India, Governor of the state and the Chief Justice of the concerned High Court without assigning superiority to the opinion of one over that of another. The raison d’etre of the provision for consultation enacted in Article 217(1) makes it obvious that the opinion given by the Chief Justice of the High Court must have at least equal weight as the opinion of the Chief Justice of India because ordinarily the Chief Justice of the High Court would be in a better position to know about the competence, character and integrity of the person recommended for appointment as a judge in the High Court. The opinion of the Governor of the State, which means the State Government, would also be entitled to equal weight, not in regard to the technical competence of the person recommended and his knowledge and perception of law on which the Chief Justice of the High Court would be the proper person to express an opinion, but in regard to the character and integrity of such person, his antecedents and his social philosophy and value-system. So also the Chief Justice of India would be valuable because he would not be affected by caste, communal or other parochial considerations and standing outside the turmoil of local passions and prejudices, he would be able to look objectively at the problem of appointment.

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. But it is consultation and not concurrence of the Chief Justice of India that is provided in clause (1) of Article 217.

Transfer of a judge by way of punishment for misbehaviour is clearly outside the purview of article 222(1). Similarly, any transfer with an oblique motive or for an oblique purpose, such as for not toeing the line of the Executive or for rendering decisions unpalatable to the Executive or for having for some reason or the other fallen from the grace of the Executive, would be outside its purview and liable to be struck down, if oblique motive or purpose is established.

The safeguard of public interest read into Article 222(1) is not intended for protecting any black-sheep in the judiciary but for protecting numerous honest, conscientious hard-working judges.

In a proceeding where the transfer of a High Court Judge or Chief Justice of a High Court is challenged, no immunity can be claimed in respect of the correspondence exchanged between the Law Minister and the Chief Justice of India and the notings made by them, since, on the balance, the non-disclosure of these documents would cause greater injury to public interest than what may be caused by disclosure. The concept of an open government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosure of information in regard to the functioning of Government must be the rule and secrecy, an exception justified only where the strictest requirement of public interest so demands.


  1. Locus Standi: As important issues concerning judiciary were involved in the case it was held that lawyers had interest and locus standi to file the petitions and they could not be told off at the gates.
  2. Independence of Judiciary: The power to appoint Judges is executive in nature and the President is bound by the advice of the Cabinet by virtue of Article 74.
  3. Circular of Law Minister dated 18-3-1981: Validity of the circular is upheld by Bhagwati, S.M.F. Ali, Desai and Venkataramiah, JJ. On the other hand, Gupta, Tulzapurkar and Pathak, JJ. took contrary view.
  4. Appointment and extension of term of Additional Judges: All Judges agree that consultation with constitutional functionaries must be meaningful and result-oriented and that the proposal can emanate from any of the constitutional functionaries. It is also unanimously agreed that none of the constitutional functionaries can exercise veto in this matter.

On the question whether the opinion of the Chief Justice of India enjoys primacy over the other constitutional functionaries, Gupta, Tulzapurkar and Pathak, JJ, held that primacy should be given to the opinion of the Chief Justice of India. However, the majority consisting of Bhagwati, Desai, S.M.F. Ali and Venkataramiah, JJ. held against primacy.

Dealing with constitutional convention that has come up for last 25 years that Additional Judge is normally appointed as permanent Judge as and when vacancy occurs, it is held that such convention does not vest any enforceable right in the incumbent though the Addl. Judge is entitled to weightage for being appointed as permanent Judge as compared to any fresh candidate/.

  1. Transfer of Judges: Transfer of a Judge from one High Court to another must be in public interest and not by way of punishment.

Prior consent of the Judge concerned was held not necessary by all Judges except Bhagwati, J.

It was also observed that personal inconvenience, language problem should also be taken into consideration as far as possible.

  1. Privilege in matter of production of certain documents by Government: It is held by majority that no privilege could be claimed in respect of documents which constituted material for forming the opinions in the matter of appointment/transfer of Judges.

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