Topic: S.P. Gupta vs President Of India And Ors - PIL
S.P. Gupta vs President Of India And Ors
Equivalent citations: AIR 1982 SC 149, 1981 Supp (1) SCC 87, 1982 2 SCR 365 - Bench: A Gupta, D Desai, E Venkataramiah, P Bhagawati, R Pathak, S M Tulzapurkar - 30 December, 1981
P.N. Bhagwati, J.
1. These writ petitions filed in different High Courts and transferred to this Court under Article 139 of the Constitution raise issues of great constitutional importance affecting the independence of the judiciary and they have been argued at great length before us. The arguments have occupied as many as thirty five days and they have ranged over a large number of issues comprising every imaginable aspect of the judicial institution, Voluminous written submissions have been filed before us which reflect the enormous industry and vast erudition of the learned Counsel appearing for the parties and a large number of authorities, Indian as well as foreign, have been brought to our attention. We must acknowledge with gratitude our indebtedness to the learned Counsel for the great assistance they have rendered to us in the delicate and difficult task of adjudicating upon highly sensitive issues arising in these writ petitions. We find, and this is not unusual in cases of this kind, that a considerable amount of passion has been injected into the arguments on both sides and sometimes passion may appear to lend strength to an argument, but, sitting as Judges, we have to be careful to see that passion does not blind us to logic and predilections pervert proper interpretation of the constitutional provisions. We have to examine the arguments objectively and dispassionately without being swayed by populist approach or sentimental appeal. It is very easy for the human mind to find justification for a conclusion which accords with the dictates of emotion. Reason is a ready enough advocate for the decision one, consciously or unconsciously, desires to reach. I will recall the brilliant fling of Shri Arobindo 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.
We have therefore to rid our mind of any pre-conceived notions or ideas and interpret the Constitution as it is and not as we think it ought to be. We can always find some reason for bending the language of the Constitution to our will, if we want, but that would be rewriting the Constitution in the guise of interpretation. We must also remember that the Constitution is an organic instrument intended to endure and its provisions must be interpreted having regard to the constitutional objectives and goals and not in the light of how a particular Government may be acting at a given point of time. Judicial response to the problem of constitutional interpretation must not suffer from the fault of emotionalism or sentimentalism which is likely to cloud the vision when Judges are confronted with issues of momentous importance. We must constantly bear in mind the famous words of Holmes J., in Northern Security Co. v. United States (1903) 193 US 197, where that great illustrious Judge said:
Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment, These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.
With these prefatory words we may now proceed to state the facts of these writ petitions.
2. The first writ petition is that filed by Iqbal Chagla and others in the High Court of Bombay. The petitioners in this writ petition are advocates practising in the High Court of Bombay and they have challenged a circular letter dated 18th March, 1981, addressed by Shri Shiv Shankar, the Law Minister of the Government of India, to the Governor of Punjab and the Chief Ministers of the other States. Since the circular letter has formed the subject matter of heated controversy between the parties and its constitutional validity has been assailed on behalf of the petitioners, it would be desirable to reproduce it in extenso in the words of the author himself:
D. O. No. 66/10/81-Jus.
Ministry of Law, Justice and
Company Affairs, India
New Delhi-110 001.
March 18, 1981.
It has repeatedly been suggested to Government over the years by several bodies and forums including the States Reorganisation Commission, the Law Commission and various Bar Associations that to further national integration and to combat narrow parochial tendencies bred by caste, kinship and other local links and affiliations, one third of the Judges of the High Court should as far as possible be from outside the State in which that High Court is situated. Somehow, no start could be made in the past in this direction. The feeling is strong, growing and justified that some effective steps should be taken very early in this direction.
2. In this context, I would request you to:
(a) obtain from all the Additional Judges working in the High Court of your State their consent to be appointed as permanent Judges in any other High Court in the country. They could, in addition, be requested to name three High Courts, in order of preference, to which they would prefer to be appointed as permanent Judges; and
(b) Obtain from persons who have already been or may in the future be proposed by you for initial appointment their consent to be appointed to any other High Court in the country along with a similar preference for three High Courts.
3. While obtaining the consent and the preference of the persons mentioned in paragraph 2 above, it may be made clear to them that the furnishing of the consent or the indication of a preference does not imply any commitment on the part at the Government either in regard to their appointment or in regard to accommodation in accordance with the preferences given.
4. I would be grateful if action is initiated very early by you and the written consent and preferences of all Additional Judges as well as of persons recommended by you for initial appointment are sent to me within a fortnight of the receipt of this letter.
5. I am also sending a copy of this letter to the Chief Justice of your High Court. With regards.
Sd/- (P. Shivshankar)
1. Governor of Punjab
2. Chief Ministers (by name) (Except North-Eastern States.)
It appears that a copy of the Circular letter was sent by Law Minister to the Chief Justice of each High Court and the Chief Minister of each State also forwarded a copy of the circular letter to the Chief Justice of the High Court of his State. We do not know what the Chief Justices of the various High Courts did on receipt of a copy of the circular letter from the Law Minister and from the Chief Ministers of their respective States, but presumably each Chief Justice sent a copy of the circular letter to the additional Judges in his Court with a request to do the needful in view of what was stated in the circular letter. The Chief Justice of Bombay High Court in any event addressed such a communication to each of the additional Judges in his Court. We do not know what was the response of the additional Judges in Bombay to the circular letter but the record shows that out of a total number of additional Judges in the Country, quite a few additional Judges gave their consent to be appointed outside their High Court. The petitioners and other advocates practising on the original as well as appellate side of the High Court of Bombay however took the view that the circular letter was a direct attack on the independence of the judiciary which is a basic feature of the Constitution and hence the Advocates Association of Western India which represents advocates practising on the appellate side, the Bombay Bar Association which represents advocates practising on the original side and the Managing Committee of the Bombay Incorporated Law Society which represents Solicitors practising in the High Court of Bombay, passed resolutions condemning the circular letter as subversive of judicial independence and asking the Government of India to withdraw the circular letter. Since the circular letter was not withdrawn by the Law Minister, the petitioners filed the present writ petition in the High Court of Bombay challenging the constitutional validity of the circular letter and seeking a declaration that if consent has been given by any additional Judge or by any person whose name has been or is to be submitted for appointment as a Judge, consequent on or arising from the circular letter, it should be held to be null and void. There were several grounds on which the constitutional validity of the circular letter was challenged but it is not necessary to set them out at the present stage because we shall have occasion to refer to them in detail when we deal with the rival arguments of the parties. The petitioners impleaded the Law Minister as respondent No. 1, the Union of India as respondent No. 2 and ten additional Judges of the Bombay High Court as respondents Nos. 3 to 12. The writ petition was filed on 20th April 1981 and immediately after filing it, the petitioners applied to the learned single Judge sitting on the original side of the Bombay High Court for admission of the writ petition and interim relief. The admission of the writ petition as also the grant of interim relief were opposed on behalf of respondent Nos. 1 and 2 but the learned single Judge admitted the writ petition and issued a rule and granted interim relief in terms of prayer (e) of the writ petition. The effect of granting the interim relief was that respondents Nos. 1 and 2 were restrained from further implementing the circular letter and acting in any manner upon the consent, if any, obtained from any person following on or arising from the circular letter. Respondents Nos. 1 and 2 thereupon preferred an appeal to a Division Bench of the Bombay High Court under Clause (15) of the Letters Patent but the appeal was dismissed by the Division Bench on 24th April, 1981. The Division Bench fixed the hearing of the writ petition before the learned single Judge hearing writ petitions on 25th June 1981 and also gave directions for tiling of affidavits by the parties. Respondent Nos. 1 and 2 being aggrieved by the order made by the Division Bench dismissing their appeal made an application to this Court on 8th May 1981 for taking up their special leave petition directed against the order of the Division Bench on the same day, but this Court refused to take up the special leave petition for hearing on that day and directed that it may come up for hearing in due course, Respondents Nos. 1 and 2 in the meanwhile filed Transfer Petition No. 24 of 1981 for transfer of the writ petition from the Bombay High Court to this Court under Article 139A of the Constitution and ultimately by an order dated 9th June 1981, the vacation Judge directed that the writ petition be withdrawn from the Bombay High Court to this Court and he also gave directions for filing of affidavits and written briefs. That is how the present writ petition filed by Iqbal Chagla and others has come up for hearing before this Bench of seven Judges constituted by the Hon'ble the Chief Justice of India.
3. The second writ petition is that filed by V.M. Tarkunde in the High Court of Delhi. The petitioner in this writ petition is a senior advocate practising in the Supreme Court and he has not only challenged the constitutional validity of the circular letter issued by the Law Minister but also assailed the practice followed by the Central Govt. in appointing additional Judges in various High Courts. The grounds on which the constitutional validity of the circular letter is challenged are the same as those taken in the first petition filed by Iqbal Chagla and others, but, so far as the complaint in respect of appointment of additional Judges is concerned, this writ petition covers new ground not treaded by the first writ petition. What made it necessary to include this complaint in the writ petition was the fact that three additional Judges of Delhi High Court, namely, O.N. Vohra, S.N. Kumar and S.B. Wad who had originally been appointed as Additional Judges for a period of two years with effect from 7th March 1979, and whose term was expiring on the midnight of 6th March 1981 were further appointed as additional Judges for a period of three months only from 7th March 1981 and these short-term appointments were, according to the petitioner, unjustified by the terms of Article 224 and were in any event subversive of the independence of the judiciary. The petitioner therefore claimed in the writ petition, in addition to the declaration that the circular letter was unconstitutional and void, a writ of mandamus directing the Central Government to convert the posts of additional Judges into permanent Judges in the various High Courts commensurate with the regular business and the arrears in those High Courts and in particular to convert 12 posts of additional Judges in the Delhi High Court into permanent posts having regard to the regular business and the large arrears in that High Court. The petitioner also questioned the validity of short-term appointments of O.N. Vohra, S.N. Kumar and S.B. Wad and claimed that since there was an existing vacancy in a permanent post, O.N. Vohra should be appointed as a permanent Judge to fill that vacancy and so far as S.N. Kumar and S.B. Wad were concerned, they should be appointed for the full term of two years. It appears that the Union of India was the only respondent impleaded in the writ petition as originally filed, but subsequently the Law Minister as also the Joint Secretary, Ministry of Law, Justice and Company Affairs were added as respondents Nos. 2 and 3 to the writ petitions. The High Court of Delhi by its order dated 23rd April, 1981, admitted the writ petition and issued rule upon it. However, since the questions arising in the writ petition were questions of great constitutional importance and the first writ petition had already been filed in the Bombay High Court and another writ petition to which we shall presently refer had also been presented in the High Court of Allahabad raising substantially the same questions, an application was made to this Court on 24th April 1981 for transfer of the writ petition to this Court and by an order dated Ist May, 1981 this Court transferred the writ petition to itself from the Delhi High Court. Meanwhile, the further term of O.N. Vohra, S.N. Kumar and S.B. Wad was about to expire on 6th June, 1981 and no decision appeared to have been taken till then for continuing these three additional Judges for a further term and the petitioner apprehended that if these three additional Judges were not continued as additional Judges on the expiration of their term on 6th June, 1981, the writ petition might become infructuous. The petitioner therefore, presented an application to this Court on 4th May 1981, for an order directing that the writ petition be heard and disposed of before 6th June, 1981 and that in any event, the respondents should maintain status quo by extending the period of appointment of additional Judges in the various High Courts till the disposal of the writ petition. Immediately on filing this application the petitioner requested the Court to fix an early date of hearing of the writ petition so that it could be disposed of before 6th June, 1981, but since the Court was closing for the summer vacation from 9th May, 1981, it was not possible to fix the hearing of the writ petition until the reopening of the court after the summer vacation. The petitioner thereupon prayed for an interim order that on the expiration of their term on 6th June, 1981, the additional Judges should be continued and their term extended until the final disposal of the writ petition. But, obviously this was not a prayer which could be granted by the Court because it is for the President and not for the Court to appoint Additional Judges and once the term of an Additional Judge has come to an end by efflux of time, it is not competent for the court to reappoint him for a further term. Since, however, an allegation was made in the application that the appointments of additional Judges for a further term were being made at the last minute and three additional Judges of the Bombay High Court at Nagpur were not informed about the extension of their term until the evening of the last day on which their original term was due to expire, this Court made an order dated 8th May 1981 directing that, since the hearing of the writ petition would not be taking place until the reopening of the Court after the summer vacation, the Union of India should "decide not less than ten days before 6th June, 1981 whether any of the three additional Judges should be reappointed for a further term as additional Judges or they should be appointed as permanent Judges or otherwise". So far as the circular letter was concerned, though no prayer for interim relief was made in the written application, this Court, on an oral application made on behalf of the petitioner, directed that any additional Judge who does not wish to respond to the circular letter may do so until the disposal of the writ petition and he shall not be refused extension nor shall he be refused permanent appointment, as the case may be, on the ground that he has not sent any reply to the circular letter or has not indicated his preference as asked for in the circular letter. Now, according to this order, the Central Government was bound to take its decision in regard to the continuance or otherwise of O.N. Vohra, S.N. Kumar and S.B. Wad on or before 27th May, 1981 but since no such decision was communicated to the three additional Judges, the petitioner, presuming that such decision must not have been reached by the Central Government, preferred an application to this Court on Ist June, 1981 for directing the Central Government to communicate its decision regarding the continuance or otherwise of the three additional Judges. Before this application came up for hearing, the petitioner came to know that a decision had been taken by the Central Government in regard to O.N. Vohra S.N. Kumar and S.B. Wad and while S.B. Wad was continued as an additional Judge for a period of one year from 7th June, 1981, O.N. Vohra and S.N. Kumar were not continued for a further term. The petitioner thereupon preferred another application to this Court on 4th June, 1981 and in this application the petitioner pointed out that there were still large arrears of work in the Delhi High Court and therefore there was no lawful and bona fide reason for the non-continuance of O.N. Vohra and S.N. Kumar and not granting fresh appointments to them was mala fide and unconstitutional and prayed that in the circumstances, an interim order should be made by the Court directing that O.N. Vohra and S.N. Kumar shall continue to function as Judges of the Delhi High Court. Both these applications came up for hearing before the learned Vacation Judge and by an order dated 6th June, 1981, the learned Vacation Judge declined to grant interim relief that O.N. Vohra and S.N. Kumar shall continue as additional Judges but directed that notice be issued to show cause why status quo in respect of these two Judges should not be maintained and continued till the pendency of the writ petition. It appears that no order was thereafter made on the notice, since the writ petition itself was directed to be heard at an early date and in the meanwhile, O.N. Vohra and S.N. Kumar were impleaded as respondent Nos. 4 and 5, to the writ petition. O.N. Vohra did not appear at the hearing of the writ petition but S.N. Kumar appeared through counsel, filed a counter-affidavit and claimed that the decision of the Central Government not to appoint him for a further term was vitiated since it was reached without full and effective consultation with the Chief Justice of India and in any event it was based on irrelevant considerations and that on a proper construction of Article 224 read with Article 217, he must be deemed to have been appointed a permanent Judge and in any event, he was entitled to be appointed as an additional Judge for a further term. The Union of India also filed an affidavit in answer to the writ petition and a further affidavit in reply to the counter-affidavit of S.N. Kumar. The writ petition was thereafter placed for hearing before this Bench of seven Judges along with the writ petition filed by Iqbal Chagla and others.
4. The third writ petition is that filed by J.L. Kalra and others in the High Court of Delhi. The petitioners in this writ petition are advocates practising in the Delhi High Court and they have prayed for the issue of a writ in the nature of mandamus directing the Central Government to make an assessment of the number of permanent and additional Judges required by the Delhi High Court having regard to its current business and the accumulated arrears, to create such number of posts of permanent and additional Judges as may be necessary and to make appointments to these posts. The other reliefs asked for in this writ petition are substantially the same as the reliefs prayed for in the writ petition filed by V.M. Tarkunde. This writ petition was also like the other writ petitions withdrawn and transferred to itself by this Court. Since the issues arising in this writ petition are identical with the issues arising in the other two writ petitions, it was heard by this Bench of seven Judges along with those writ petitions.
5. The fourth writ petition is that filed by S.P. Gupta in the High Court of Allahabad. The petitioner in that writ petition is an advocate practising in the Allahabad High Court and he has filed this writ petition for substantially the same reliefs as the writ petitions of Iqbal Chagla and V.M. Tarkunde, with only this difference that the reliefs claimed by him relate to the appointments of additional Judges in the High Court of Allahabad, The petitioner has inter alia prayed for a declaration that the three additional Judges of the Allahabad High Court, namely, Mr. Justice Murlidhar, Mr. Justice A.N. Verma and Mr. Justice N.N. Mittal must be deemed to have been appointed permanent Judges under the warrants already issued to them and that the circular letter of the Law Minister must be held to be void. This writ petition was also heard along with the other writ petitions by this Bench of seven Judges.
6. Since these four writ petitions to which we have just referred raise the same issues in regard to the circular letter issued by the Law Minister and the scope and ambit of the power of the Central Government in regard to appointment or non-appointment of additional Judges, it would be convenient to deal with them in a group and we shall hereafter for the sake of convenience refer to them as the first group of writ petitions.
7. The fifth writ petition is that filed by Miss Lily Thomas, an advocate practising in the Supreme Court. This writ petition has challenged the transfer of Mr. Justice M.M. Ismail, Chief Justice of the High Court of Madras 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. This order recited that it was made by the President in exercise of the powers conferred under Clause (1) of Article 222 and after consultation with the Chief Justice of India. Simultaneously with the making of this order, another order of the same date was issued by the President whereby the President in exercise of the powers conferred by Clause (1) of Article 222 after consultation with the Chief Justice transferred Mr. Justice K.B.N. Singh, Chief Justice of the High Court of Patna as Chief Justice of the High Court of Madras with effect from the date he assumed charge of his office. It was the first order of transfer" of Mr. Justice M.M. Ismail as Chief Justice of the Kerala High Court that was challenged by the petitioner in this writ petition. There were several grounds on which the transfer was challenged and they were inter alia that the power of transfer conferred under Clause (1) of Article 222 was confined only to transfer of a High Court Judge and did not cover transfer of the Chief Justice of a High Court, even if the Chief Justice of a High Court could be transferred in exercise of the power conferred under Clause (1) of Article 222, such transfer could be effected only with consent of the Judge sought to be transferred and in any event, even if consent was not necessary, such transfer could be effected only in public interest and after full and effective consultation with the Chief Justice of India and in the case of transfer of Chief Justice M.M. Ismail, none of these conditions was satisfied, since the transfer was not effected with his consent and it was neither in public interest nor after full and effective consultation with the Chief Justice of India. This writ petition was filed by the petitioner under Article 32 of the Constitution and therefore when it came up for admission before a Bench of this Court, the Bench asked the petitioner as to how it was maintainable under Article 32. The Bench was inclined to throughout the petition summarily on the ground that it did not (sic) under Article 32, but the Attorney General of India appearing on behalf of the Union of India submitted that since the writ petition raised important questions of law, it may be entertained by the Court, because in any event, even if this writ petition were rejected on the ground that it was not maintainable under Article 32, a new writ petition for the same reliefs could always be filed under Article 226 and then it could be brought to this Court either by way of transfer under Article 124A or by way of an appeal under Article 136. The Bench therefore decided to admit this writ petition and issued rule nisi. After this writ petition was admitted, there were several interlocutory proceedings taken out by the petitioner, but it is not necessary to refer to them since most of them were rejected. The Union of India filed a counter-affidavit in reply to this writ petition contesting the various grounds urged on behalf of the petitioner. Chief Justice M.M. Ismail who was impleaded as respondent No. 2 in this writ petition, also filed an affidavit but the stand he took was that he had decided not to challenge the legality or validity of the order of the President transferring him as Chief Justice of the Kerala High Court and he did not want anyone to litigate for or against him. Since Chief Justice M.M. Ismail, who was the person to whom legal injury was caused by the order of transfer, did not claim any relief and made it clear that he did not want anyone to litigate for him, this writ petition could not be maintained by the petitioner and it was liable to be dismissed, but since the petitioner who was appearing in person, wanted to make a few submissions in regard to the scope and ambit of the power of transfer, we heard her for sometime. We may point out that whilst this writ petition was pending, Chief Justice M.M. Ismail resigned his office as Chief Justice of the Madras High Court and therefore, all the more, nothing survives in this writ petition.
8. The sixth writ petition is that filed by A. Rajappa an advocate practising in the High Court of Madras. This writ petition was originally filed in the High Court of Madras under Article 226 of the Constitution and in this writ petition the petitioner challenged the constitutional validity of the orders of transfer passed by the President on 19th Jan., 1981 transferring Mr. Justice M.M. Ismail, Chief Justice of Madras High Court as the Chief Justice of Kerala High Court and Mr. Justice K.B.N. Singh, Chief Justice of Patna High Court as the Chief Justice of Madras High Court. The principal grounds on which these two orders of transfer were assailed as unconstitutional and void were substantially the same as those urged in the fifth writ petition filed by Miss Lily Thomas, with only two additional grounds, namely, that the transfers having been effected without prior consultation with the Governors of the States to which the two Chief Justices were transferred, were violative of Clause (1) of Article 217 and so far as the transfer of Chief Justice K.B.N. Singh as Chief Justice of Madras High Court was concerned, it was not in public interest, since Chief Justice K.B.N. Singh did not know the Tamil language. This writ petition was withdrawn and transferred to itself by this Court since it raised substantially the same issues as the fifth writ petition filed by Miss Lily Thomas which was pending in this Court. The Union of India opposed this writ petition by filing a counter-affidavit where it contended that the transfers of both the Chief Justices were effected in public interest and after consultation with the Chief Justice of India who is the only authority required to be consulted whilst exercising the power of transfer under Article 222, Clause (1) and the procedure prescribed by Article 217 Clause (1) had no application in the case of transfer of a Judge or Chief Justice from one High Court to another. This writ petition was also referred to a Bench of seven Judges along with the fifth writ petition and that is how both these writ petitions have come up for hearing before us.
9. The seventh writ petition is that filed by P. Subramanian, an advocate practising in the Madras High Court. This writ petition was originally filed in the Madras High Court under Article 226 and along with the other writ petitions it was transferred to this Court for hearing and final disposal. The averments and prayers made in this writ petition are substantially the same as those in the sixth writ petition filed by A. Rajappa and so also, are the statements made in the counter-affidavit filed on behalf of the Union of India. This writ petition does not therefore need any separate or independent consideration.
10. The eighth writ petition is that filed by D.N. Pandey and Thakur Ramapati Sinha, two advocates practising in the High Court of Patna. This writ petition was originally filed in the High Court of Patna under Article 226 and it challenged the constitutional validity of the Orders transferring Chief Justice M.M. Ismail to the Kerala High Court and Chief Justice K.B.N. Singh to the Madras High Court. The averments and prayers made in the writ petition are substantially the same as those made in the fifth, sixth and seventh writ petitions filed respectively by Miss Lily Thomas, A. Rajappa and P. Subramanian and it is therefore not necessary to repeat them. Suffice it to state that this writ petition was also transferred to this Court along with the other writ petitions under Article 124A. Whilst this writ petition was pending, Chief Justice K.B.N. Singh, who was originally impleaded as respondent No. 3 in the writ petition, applied for being transposed, as petitioner No. 3 and since the original petitioners had no objection to Chief Justice K.B.N. Singh joining them as co-petitioner, this Court made an Order on 17th Sept., 1981 transposing Chief Justice K.B.N. Singh as petitioner No. 3. Chief Justice K.B.N. Singh thereafter filed an affidavit setting out in extenso what transpired between him and the Chief Justice of India in regard to the proposal for his transfer and detailing the various grounds on which he contended that the order transferring him as Chief Justice of the Madras High Court was unconstitutional and void. Chief Justice K.B.N. Singh contended inter alia that the order transferring him as Chief Justice of the Madras High Court was passed by the President by way of punishment and it was based on irrelevant and insufficient grounds and was not in public interest and in any event, it was not preceded by full and effective consultation with the Chief Justice of India. The averments made by Chief Justice K.B.N. Singh in his affidavit were disputed by the Union of India in an affidavit sworn by K.C. Kankan, Deputy Secretary, Department of Justice, Ministry of Law, Justice and Company Affairs and the Chief Justice of India also filed a counter-affidavit in reply to the affidavit of Chief Justice K.B.N. Singh. The counter-affidavit of the Chief Justice of India prompted two affidavits in rejoinder, one by Chief Justice K.B.N. Singh and the other by petitioners Nos. 1 and 2. We shall have occasion to refer to these various affidavits when we deal with the rival arguments advanced on behalf of the parties.
11. These last four writ petitions challenging the constitutional validity of Orders of transfer of Chief Justice M.M. Ismail and Chief Justice K.B.N. Singh raised identical issues and we would therefore dispose them of together in one group. They may for the sake of convenience be referred as the second group of writ petitions.
12. We may also at this stage refer to S. L. P. No. 1509 of 1981, filed by Ripudaman Prasad Sinha in this Court. This petition for special leave is directed against an order passed by the High Court of Patna rejecting the writ petition of the petitioner challenging the constitutional validity of the order of transfer of Chief Justice K.B.N. Singh, on the ground that the petitioner had not been able to produce the documents on which he wanted to place reliance. This is hardly a ground on which the writ petition should have been rejected by the High Court in limine and we would have therefore, ordinarily granted special leave to appeal against the decision of the High Court, but in view of the fact that the issues sought to be raised by the petitioner have already been agitated in the other writ petitions, it is not necessary to grant special leave and hence we do not propose to make any order on the special leave petition
13. When these writ petitions reached hearing before us, a preliminary objection was raised by Mr. Mridul, appearing on behalf of the Law Minister, challenging the locus standi of the petitioners in Iqbal Chagla's writ petition. He urged that the petitioners in that writ petition had not suffered any legal injury as a result of the issuance of the Circular by the Law Minister or the making of short term appointments by the Central Government and they had therefore no locus standi to maintain the writ petition assailing the constitutional validity of the Circular or the short term appointments. The legal injury, if at all, was caused to the additional Judges whose consent was sought to be obtained under the Circular or who were appointed for short terms and they alone were therefore entitled to impugn the constitutionality of the Circular and the short term appointments and not the petitioners. The basic postulate of the argument was that it is only a person who has suffered legal injury who can maintain a writ petition for redress and no third party can be permitted to have access to the Court for the purpose of seeking redress for the person injured. The same preliminary objection was urged by 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. So far as the writ petition of V.M. Tarkunde is concerned, Mr. Mridul said that he would have had the same preliminary objection against the locus standi of the petitioner to maintain that writ petition because the petitioner had suffered no legal injury, but since S.N. Kumar had appeared, albeit as a respondent, and claimed relief against the decision of the Central Government not to appoint him for a further term and sought redress of the legal injury said to have been caused to him as a result of such decision, the lack of locus standi on the part 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. This preliminary objection urged by Mr. Mridul raised a very interesting question of law relating to locus standi, or as the Americans call it 'Standing', in the area of public law. This question is of immense importance in a country like India where access to justice being restricted by social and economic constraints, it is necessary to democratise judicial remedies, remove technical barriers against easy accessibility to Justice and promote public interest litigation so that the large masses of people belonging to the deprived and exploited sections of humanity may be able to realise and enjoy the socio-economic rights granted to them and these rights may become meaningful for them instead of remaining mere empty hopes.
14. The traditional rule in regard to locus standi is that judicial redress is available only to a person who has suffered a legal injury by reason of violation of his legal right or legal protected interest by the impugned action of the State or a public authority or any other person or who is likely to suffer a legal injury by reason of threatened violation of his legal right or legally protected interest by any such action. The basis of entitlement to judicial redress is personal injury to property, body, mind or reputation arising from violation, actual or threatened, of the legal right or legally protected interest of the person seeking such redress. This is a rule of ancient vintage and it arose during an era when private law dominated the legal scene and public law had not yet been born. The leading case in which this rule was enunciated and which marks the starting point of almost every discussion on locus standi is Ex parte Sidebotham (1980) 14 Ch D 458. There the Court was concerned with the question whether the appellant could be said to be a 'person aggrieved' so as to be entitled to maintain the appeal. The Court in a unanimous view held that the appellant was not entitled to maintain the appeal because he was not a 'person aggrieved' by the decision of the lower Court. James, L. J. gave a definition of 'person aggrieved' which, though given in the context of the right to appeal against a decision of a lower Court, has been applied widely in determining the standing of a person to seek judicial redress, with the result that it has stultified the growth of the law in regard to judicial remedies. The learned Lord Justice said that a 'person aggrieved' must be a man "who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something." Thus definition was approved by Lord Esher M. R. in In Re Reed Bowen & Co. (1887) 19 QBD 174 and the learned Master of the Rolls made it clear that when James L. J. said that a person aggrieved must be a man against whom a decision has been pronounced which has wrongfully refused him of something, he obviously meant that the person aggrieved must be a man who has been refused something which he had a right to demand. There have been numerous subsequent decisions of the English Courts where this definition has been applied for the purpose of determining whether the person seeking judicial redress had locus standi to maintain the action. It will be seen that, according to this rule, it is only a person who has suffered a specific legal injury by reason of actual or threatened violation of his legal right or legally protected interest who can bring an action for judicial redress. Now obviously where an applicant has a legal right or a legally protected interest, the violation of which would result in legal injury to him, there must be a corresponding duty owed by the other party to the applicant. This rule in regard to locus standi thus postulates a right-duty pattern which is commonly to be found in private law litigation. But, narrow and rigid though this rule may be, there are a few exceptions to it which have been evolved by the Courts over the years.
15. In the first place a rate payer of a local authority is accorded standing to challenge an illegal action of the local authority. Thus, a rate payer can question the action of the municipality in granting a cinema licence to a person, vide : K.R. Shenoy v. Udipi Municipality . Similarly, the right of a rate payer to challenge
misuse of funds by a municipality has also been recognised by the Courts vide : Varadarajan v. Salem Municipality. .
The reason for this liberalisation of the rule in the case of a tax payer of a municipality is that his interest in the application of the money of the municipality is direct and immediate and he has a close relationship with the municipality. The Courts in India have, in taking this view, followed the decisions of the English Courts. Secondly, if a person is entitled to participate in the proceedings relating to the decision making process culminating in the impugned decision he would have locus standi to maintain an action challenging the impugned decision. Vide : Queen v. Bowman (1898) 1 QB 663 where it was held that any member of the public had a right to be heard in opposition to an application for a licence and having such right, the applicant was entitled to ask for mandamus directing the licensing Justices to hear and determine the application for licence according to law. Thirdly, the statute itself may expressly recognise the locus standi of an applicant, even though no legal right or legally protected interest of the applicant has been violated resulting in legal injury to him. For example, in J.M. Desai v. Roshan Kumar , this Court noticed that the Bombay Cinematograph Act. 1918 and the Bombay Cinema Rules, 1954 made under that Act, recognised a special interest of persons residing, or concerned with any institution such as a school, temple, mosque etc, located within a distance of 200 yards of the site on which the cinema house is proposed to be constructed and held that as the petitioner, a rival cinema owner, did not fall within the category of such persons having a special interest in the locality, he had no locus standi to maintain the petition for a writ of certiorari to quash the No Objection Certificate granted by the District Magistrate, to respondents Nos. 1 and 2. It is obvious from the observations made at page 72 (of SCR) : (at p. 586 of AIR of the Report that if the petitioner had been a person falling within this category of persons having a special interest in the locality, he would have been held entitled to maintain the petition. There is also another decision of this Court illustrating the situation where a statute expressly gives locus standi to persons to complain against a public wrong and that is the decision in Ratlam Municipality v. Vardhi Chand . The statutory provision which came up for
consideration in this case was Section 133 of Criminal P. C. which empowers a Magistrate on receiving the report of a police officer or other information to make an order for remedying a public nuisance. What happened in this case was that the Ratlam Municipality filed to carry out its statutory duty of constructing a drain pipe to carry the filth etc. on a particular road. The local residents decided to invoke Section 133 of Criminal P. C. against the Municipality. The Magistrate made an order requiring the Municipality to construct drain pipes and this order was confirmed in appeal by this Court. The Municipality pleaded lack of funds but this was not accepted as a valid defence. However, to have a viable scheme keeping in view the financial position of the Municipality, this Court examined the three schemes submitted to it and directed the Municipality to implement one of them. The standing of the local residents to move the Magistrate was recognised since Section 133 of Criminal P. C. expressly conferred such right on them.
16. There is also another exception which has been carved out of this strict rule of standing which requires that the applicant for judicial redress must have suffered a legal wrong or injury in order to entitle him to maintain an action for such redress. It is clear that, having regard to this rule, no one can ordinarily seek judicial redress for legal injury suffered by another person; it is only, such other person who must bring action for judicial redress. It is on this principle that the Supreme Court of the United States held in United States v. James Griggs Raines. (1960) 362 US 17 : 4 L Ed 2d 524 that a litigant may only assert his own constitutional rights or immunities and save in exceptional cases, no person can claim standing to vindicate the constitutional rights of a third party. But it must now be regarded as well settled law where a person who has suffered a legal wrong or a legal injury or whose legal right or legally protected interest is violated, is unable to approach the Court on account of some disability or it is not practicable for him to move the Court for some other sufficient reasons, such as his socially or economically disadvantaged position, some other person can invoke assistance of the Court for the purpose of providing judicial redress to the person wronged or injured, so that the legal wrong or injury caused to such person does not go un-redressed and justice is done to him. Take for example, the case of a minor to whom a legal wrong has been done or a legal injury caused. He obviously cannot on his own approach the Court because of his disability arising from minority. The law therefore provides that any other person acting as his next friend may bring an action in his name for judicial redress vide : Order XXXII of Civil P. C. So also where a person is detained and is therefore not in a position to move the Court for securing his release, any other person may file an application for a writ of habeas corpus challenging the legality of his detention. Of course, this Court has ruled in a number of cases that a prisoner is entitled to address a communication directly to the Court complaining against his detention and seeking release and if he addresses any such communication to the Court, the Superintendent of the prison is bound to forward it to the Court and, in fact, there have been numerous instances where this Court has acted on such communication received from a prisoner and treating it as an application for a writ of habeas corpus, called upon the detaining authority to justify the legality of such detention and on the failure of the detaining authority to do so, released the prisoner. But since a person detained would ordinarily be unable to communicate with the outside world, the law presumes that he will not be able to approach the Court and hence permits any other person to move the Court for judicial redress by filing an application for a writ of habeas corpus. Similarly, where a transaction is entered into by the Board of Directors of a company which is illegal or ultra vires the company, but the majority of the shareholders are in favour of it and hence it is not possible for the company to sue for setting aside the transaction, any shareholder may file an action impugning the transaction. Here it is the company which suffers a legal wrong or a legal injury by reason of the illegal or ultra vires transaction impugned in the action, but an individual shareholder is permitted to sue for redressing such legal wrong or injury to the company, because otherwise the company, being under the control of the majority shareholders would be without judicial redress. Vide: Atwood v. Merry Weather (1867) 5 Eq 464. The Judicial Committee of the Privy Council also affirmed this exception to the strict rule of standing in Durayappah v. Fernando (1967) 2 AC 337. There what happened was that the Jaffna Municipal Council was dissolved by the Minister of Local Government without giving it an opportunity to be heard. The order of dissolution was therefore voidable at the instance of the Council, but the Council did not complain. The appellant was a mayor at the time of the dissolution and he petitioned for a writ in the nature of certiorari to quash the order of dissolution. Lord Upjohn speaking on behalf of the Judicial Committee denied standing to the appellant in the following words:
The appellant was no doubt mayor at the time of its dissolution but that does not give him any right to complain independently of the Council. He must show that he is representing the Council or suing on its behalf or that by reason of certain circumstances, such, for example, as that the council could not use its seal because it is in the possession of the Municipal Commissioner, or for other reasons it has been impracticable for the members of the council to meet to pass the necessary resolutions, the council cannot be the plaintiff.
The Judicial Committee thus clearly laid down that for a legal wrong or legal injury caused to the council, it is only the council which can sue but if a member of the council can show that for some sufficient reasons it is not possible for the council to take action for challenging the order of dissolution, he can file an application for a writ to assert the right of the council and to redress the legal wrong or injury done to the council. We find that in the United States of America also this exception has been recognised and the strict rule of standing has been liberalised in the interest of justice. In Barrows v. Jackson (1952) 346 US 249 3 97 Law Ed 1586, the defendant was sued for breach of a restrictive covenant binding the defendant not to sell his property to non-cancacians and claiming damages. The defendant raised the plea that the judgment of the Court allowing damages for breach of the covenant would constitute denial of the equal protection clause to non-cancacians, because a prospective seller of restricted land would either refuse to sell to non-cancacians or else would require non-cancacians to pay a higher price to meet the damages which the seller may have to pay. The argument put forward in answer to this plea was that the defendant was not entitled to plead in defence the constitutional rights of non-Caucasians. But the Supreme Court of the United States negative his argument observing : "We are faced with a unique situation in which it is an action of the State Court which might result in a denial of constitutional rights and in which it would be difficult if not impossible for the persons whose rights are asserted to present their grievance before any Court". Even in our own country we have recognised this departure from the strict rule of locus standi in cases where there has been a violation of the constitutional or legal rights of persons who by reason of their socially or economically disadvantaged position are unable to approach the Court for judicial redress. We have in such cases permitted a member of the public to move the Court for enforcement of the constitutional or legal rights of such persons and judicial redress for the legal wrong or legal injury caused to them. Take for example, the decision of this Court in Sunil Batra v. Delhi Administration where
this Court accepted the habeas corpus petition of a prisoner complaining of brutal assault by a head warden on another prisoner. It may be incidentally mentioned and this is a point of some importance in the area of judicial remedies -- that in this case the Court broadened the scope of habeas corpus by making it available to a prisoner, not only for seeking his liberty, but also for the enforcement of a constitutional right to which he was lawfully entitled even in confinement. Similarly, in Dr. Upendra Baxi v. State of U. P. (1981) 3 Scale 1137 when it was found that the inmates of the Protective Home at Agra were living in inhuman and degarding conditions in blatant violation of Article 21 of the Constitution and by reason of their socially and economically disadvantaged position, they were not in a position to move the Court for judicial redress, two law professors of the Delhi University addressed a letter, to this Court seeking enforcement of the constitutional right of the inmates under Article 21 by improvement of the living conditions in the Protective Home, so that the inmates can live with human dignity in the Protective Home. This Court treated the letter as a writ petition and permitted the two law professors to maintain an action for an appropriate writ for the purpose of enforcing the constitutional right of the inmates of the Protective Home and providing judicial redress to them. This Court has also entertained a letter addressed by a journalist claiming relief against demolition of hutments of pavement dwellers by the Municipal Corporation of Bombay and this letter has been treated as a Writ Petition by a Bench presided over by the Chief Justice of India and interim relief has been granted to the pavement dwellers.
17. It may therefore now be taken as well established that where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case of breach of any fundamental right of such person or determinate class of persons, in this Court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons. Where the weaker sections of the community are concerned, such as under-trial prisoners languishing in jails without a trial inmates of the Protective Home in Agra or Harijan workers engaged in road construction in the Ajmer District, who are living in poverty and destitution, who are barely eking out a miserable existence with their sweat and toil, who are helpless victims of an exploitative society and who do not have easy access to justice, this Court will not insist on a regular writ petition to be filed by the public spirited individual espousing their cause and seeking relief for them, This Court will readily respond even to a letter addressed by such individual acting pro bono publico. 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 Today a vast revolution is taking place in the judicial process; the theatre of the law is fast changing and the problems of the poor are coming to the forefront. The Court has to innovate new methods and devise new strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights and to whom freedom and liberty have no meaning. The only way in which this can be done is by entertaining writ petitions and even letters from public spirited individuals seeking judicial redress for the benefit of persons who have suffered a legal wrong or a legal injury or whose constitutional or legal right has been violated but who by reason of their poverty or socially or economically disadvantaged position are unable to approach the Court for relief. It is in this spirit that the Court has been entertaining letters for Judicial redress and treating them as writ petitions and we hope and trust that the High Courts of the country will also adopt this pro-active, goal-oriented approach. But we must hasten to make it clear that the individual who moves the Court for judicial redress in cases of this kind must be acting bona fide with a view to vindicating the cause of justice and if he is acting for personal gain or private profit or out of political motivation or other oblique consideration, the Court should not allow itself to be activised at the instance of such person and must reject his application at the threshhold, whether it be in the form of a letter ad-dressed to the Court or even in the form of a regular writ petition filed in Court. We may also point out that as a matter of prudence and not as a rule of law, the Court may confine this strategic exercise of jurisdiction to cases, where legal wrong or legal injury is caused to a determinate class or group of persons or the constitutional or legal right of such determinate class or group of persons is violated and as far as possible, not entertain eases of individual wrong or injury at the instance of a third party, where there is an effective legal aid organisation which can take care of such cases.
18. The types of cases which we have dealt with so far for the purpose of considering the question of locus standi are those where there is a specific legal injury either to the applicant or to some other person or persons for whose benefit the action is brought, arising from violation of some constitutional or legal right or legally protected interest. What is complained of in these cases is a specific legal injury suffered by a person or a determinate class or group of persons. But there may be cases where the State or a public authority may act in violation of a constitutional or statutory obligation or fail to carry out such obligation, resulting in injury to public interest or what may conveniently be termed as public injury as distinguished from private injury. Who would have standing to complain against such act or omission of the State or public authority? Can any member of the public sue for judicial redress? Or is the standing limited only to a certain class of persons? Or there is no one who can complain and the public in-Jury must go unredressed. To answer these questions it is first of all necessary to understand what is the true purpose of the Judicial function. This is what Prof. Thio states in his book on "Locus Standi and Judicial Review";
Is the judicial function primarily aimed at preserving legal order by confining the legislative and executive organs of government within their powers in the interest of the public (Jurisdiction de droit objectif) or is it mainly directed towards the protection of private individuals by preventing illegal encroachments on their individual rights (jurisdiction de droit subjectif)? The first contention rests on the theory that Courts are the final arbiters of what is legal and illegal ....Requirement? of locus standi are therefore unnecessary in this case since they merely impede the purpose of the function as conceived here. On the other hand, where the prime aim of the judicial process is to protect individual rights, its concern with the regularity of law and administration is limited to the extent that individual rights are infringed.
We would regard the first proposition as correctly setting out the nature and purpose of the judicial function, as it is essential to the maintenance of the rule of law that every organ of the State must act within the limits of its power and carry out the duty imposed upon it by the Constitution or the law. If the State or any public authority acts beyond the scope of its power and thereby causes a specific legal injury to a person or to a determinate class or group of persons, it would be a case of private injury actionable in the manner discussed in the preceding paragraphs. So also if the duty is owed by the State or any public authority to a person or to a determinate class or group of persons, it would give rise to a corresponding right in such person or determinate class or group of persons and they would be entitled to maintain an action for judicial redress. But if no specific legal injury is caused to a person or to a determinate class or group of persons by the act or omission of the State or any public authority and the injury is caused only to public interest, the question arises as to who can maintain an action for vindicating the rule of law and setting aside the unlawful action or enforcing the performance of the public duty. If no one can maintain an action for redress of such public wrong or public injury, it would be disastrous for the rule of law, for it would be open to the State or a public authority to act with impunity beyond the scope of its power or in breach of a public duty owed by it. The Courts cannot countenance such a situation where the observance of the law is left to the sweet will of the authority bound by it, without any redress if the law is contravened. The view has therefore been taken by the Courts in many decisions that whenever there is a public wrong or public injury caused by an act or omission of the State or a public authority which is contrary to the Constitution or the law, any member of the public acting bona fide and having sufficient interest can maintain an action for redressal of such public wrong or public injury. The strict rule of standing which insists that only a person who has suffered a specific legal injury can maintain an action for judicial redress is relaxed and a broad rule is evolved which gives standing to any member of the public who is not a mere busy-body or a meddlesome interloper but who has sufficient interest in the proceeding. There can be no doubt that the risk of legal action against the State or a public authority by any citizen will induce the State or such public authority to act with greater responsibility and care thereby improving the administration of justice. Lord Dip-lock rightly said in Rex v. Inland Revenue Commrs. (1981) 2 WLR 722 at p. 740:
It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a single public-spirited taxpayer, were prevented by out-dated technical rules of locus standi from bringing the matter to the attention of the Court to vindicate the rule of law and get the unlawful conduct stopped.... It is not, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a Court of Justice for the lawfulness of what they do, and of that the Court is the only judge.
This broadening of the rule of locus standi has been largely responsible for the development of public law, because it is only the availability of judicial remedy for enforcement which invests law with meaning and purpose or else the law would remain merely a paper parchment, a teasing illusion and a promise of unreality. It is only by liberalising the rule of locus standi that it is possible to effectively police the corridors of powers and prevent violations of law. It was pointed out by Schwartz and H.W.R. Wade in their book on "Legal Control of Government" at page 354: