A New Forum For Judicial Appointments
1. Whether power to transfer under Art. 222
and as interpreted by SC in Sankal Chand
Gupta's case has a:ted as a dampener "
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S.P. Gupta vs Union Of India & Anr on 30 December, 1981
Supreme Court Advocates-On-Record ... vs Union Of India on 16 October, 2015
The issue was
referred to the Bench of 9-Judges on account of doubts having arisen as to
the correctness of the view expressed in S.P. Gupta vs. Union of
India[736] (First Judges’ case), laying down that primacy in the matter of
appointment of judges rested with the Central Government[737]. The basis
of the said decision was that the word ‘consultation’ used in Articles 124,
217 etc. implied that the views of the consultee need not be treated as
binding as the ultimate power of appointment rested with the Central
Government. It was held that the views of the CJI or other Judges who were
consulted may be entitled to great weight but the final view in case of
difference of opinion could be taken by the Central Government. The word
‘consultation’ could not be read as ‘concurrence’.
Supreme Court Advocates-On-Record ... vs Union Of India on 16 October, 2015
“Then the question which comes up for consideration is, can there be an
independent judiciary when the power of appointment of judges vests in
the executive? To say yes, would be illogical. The independence of
judiciary is inextricably linked and connected with the constitutional
process of appointment of judges of the higher judiciary. ‘Independence of
Judiciary’ is the basic feature of our Constitution and if it means what we
have discussed above, then the Framers of the Constitution could have
never intended to give this power to the executive. Even otherwise the
Governments - Central or the State - are parties before the Courts in large
number of cases. The Union Executive have vital interests in various
important matters which come for adjudication before the Apex Court. The
executive - in one form or the other - is the largest single litigant before the
courts. In this view of the matter the judiciary being the mediator -
between the people and the executive - the Framers of the Constitution
could not have left the final authority to appoint the Judges of the Supreme
Court and of the High Courts in the hands of the executive. This Court in
S.P. Gupta case proceeded on the assumption that the independence of
judiciary is the basic feature of the Constitution but failed to appreciate
that the interpretation, it gave, was not in conformity with broader facets of
the two concepts - ‘independence of judiciary’ and ‘judicial review’ -
which are interlinked.”676
In view of this, there can be no doubt that the Government of India is a major
litigant and for a Cabinet Minister to be participating (and having a veto) in
the actual selection of a judge of a High Court or the Supreme Court is
extremely anomalous.677
675
Paragraph 327
676
Paragraph 335
677
The position that the State is a major litigant in the country remains the same even today.
Subhash Chandra Agrawal vs Supreme Court Of India on 14 August, 2020
Nevertheless, the definition of the applicability of the clause of fiduciary
relationship i.e. exemption u/s 8(1)(e) dwelt in detail by the Hon'ble Justice
RavinderBhat in W.P. No. 288/09, quoted above, will now have the effect of
overriding any earlier decision of this Commission in this regard. The question is
that will this definition apply in the present case, a fact that has been challenged
by respondents. It is without doubt that the detailed exemption on the question of
the fiduciary relationship in the above decision does not pertain to the kind of
disclosure that has been sought in the present appeal since that was regarding
disclosure of information regarding property statements whereas in the present
case the issue is one of personnel administration. Nevertheless, as will be clear
from the judgment that we have deliberately taken some pains to describe in
detail above would clearly show its applicability over a much larger canvas than
only a particular Writ Petition itself in the context of which it has been arrived at.
The principles on which the fiduciary relationship can be relied on to seek
exemption have been clearly laid down. In the present case excluding personal
information, which in any case will be deleted under the severability clause in any
disclosure order, the recommendation of appointment of justices is decidedly a
public activity conducted in the overriding public interest. Hence the plea of
seeking exemption under the definition of fiduciary relationship cannot stand, and
even if accepted in technical terms, will not withstand the test of public interest.
Udit Chandra And Others vs Union Of India Thru' Secy.Min. Of ... on 21 July, 2011
Certain doubts emerged in the mind of the President relating to the interpretation of the law laid down by the Supreme Court with regard to transfer and appointment of judges. Questions were of great public importance as such the President thought that it was expedient to obtain the opinion of the Supreme Court exercising powers under Article 143 of the Constitution. Accordingly, reference was made framing 9 questions. The questions as framed and mentioned in the Presidential Reference dated 23.07.1998 read as follows :
State Of West Bengal vs Union Of India And Others on 21 March, 1995
In the case of State of
W.B. v. Swapan Kr. Guha (Sanchaita case) which was
subsequent to the pronouncement of the
judgment in S. P. Gupta's case the Supreme Court after finding that the
firm concerned was in the brink of financial
disaster and would be unable to pay back the
deposit raised, from its depositors, assuming
the jurisdiction under Art. 32 of the Consti
tution, passed different orders to meet the
exigencies of the situation even nullifying the
decrees obtained by third parties and .even
superseding the suit which was then pending
in the original side of this Court at the
instance of the parties who are not parties
before the Supreme Court. In the said case the
Supreme Court also appointed a Commis
sioner investing him with immense power to
attach properties which are prima facie in the
opinion of the said Commissioner belonged
to said firm Sanchaita and/or of its partner,
agent, or benamidar, etc. and even to sell such
properties.
Shri Subhash Chandra Agrawal vs Supreme Court Of India (Sci) on 24 November, 2009
Nevertheless, the definition of the applicability of the clause of fiduciary
relationship i.e. exemption u/s 8(1)(e) dwelt in detail by the Hon'ble Justice
Ravinder Bhat in W.P. No. 288/09, quoted above, will now have the effect of
overriding any earlier decision of this Commission in this regard. The question is
that will this definition apply in the present case, a fact that has been challenged
by respondents. It is without doubt that the detailed exemption on the question of
the fiduciary relationship in the above decision does not pertain to the kind of
disclosure that has been sought in the present appeal since that was regarding
disclosure of information regarding property statements whereas in the present
case the issue is one of personnel administration. Nevertheless, as will be clear
from the judgment that we have deliberately taken some pains to describe in
detail above would clearly show its applicability over a much larger canvas than
only a particular Writ Petition itself in the context of which it has been arrived at.
The principles on which the fiduciary relationship can be relied on to seek
exemption have been clearly laid down. In the present case excluding personal
information, which in any case will be deleted under the severability clause in any
disclosure order, the recommendation of appointment of justices is decidedly a
public activity conducted in the overriding public interest. Hence the plea of
seeking exemption under the definition of fiduciary relationship cannot stand, and
even if accepted in technical terms, will not withstand the test of public interest.
Union Of India vs Central Information Commission & Anr. on 11 July, 2012
42. The learned counsel for the respondents had laid lot of emphasis
on S.P.Gupta (supra) however, the said case was not about what advice
was tendered to the President on the appointment of Judges but the
dispute was whether there was the factum of effective consultation.
Consequently the propositions raised on behalf of the respondents on
the basis of the ratio of S.P.Gupta will not be applicable in the facts and
circumstances and the pleas and contentions of the respondents are to
be repelled.
214Th Report On Proposal For Reconsideration Of Judges Case I, Ii And Iii - S P Gupta ...
1. From what has been stated above it is clear
that an entire reconsideration I, II & III
judges cases - S.P. Gupta Vs UOI reported in
AIR 1982 Supreme Court 149, Supreme Court
Advocates on Record Association Vs UOI
reported in 1993(4) SCC 441 and Special
Reference 1 of 1998 reported in 1998(7) SCC
49
739, is urgently and immediately called for in
order to bring about clarity and consistency
in the process of Appointment of Supreme Court
and High Court Judges.
Amit Patel vs High Court Of Madhya Pradesh on 3 May, 2024
61. Thus, coming to the issue of locus in the light of the decision
rendered by the Apex Court in S.P.Gupta versus Union of India &
Another (supra), the ratio of law is that a member of the Public, who
complains of a secondary public injury cannot maintain the action but
here the complainant is not a member of the public complaining of a
secondary public injury but is a member of the Madhya Pradesh High
Signature Not Verified
Signed by: AMIT JAIN
Signing time: 03-05-
2024 20:00:20
43
Court Bar Association claiming alternative relief of either cancellation
of allotment or in the alternative allow the use of the allotted premises
in the hands of all the members of the Bar practising at the High Court
inasmuch as the exclusive access to a premises by a particular class of
Association causes prejudice to the interest of a common man and,
therefore, the ratio laid down by the Apex Court in S.P.Gupta versus
Union of India & Another (supra) has no application to the facts and
circumstances of the present case.