Whether the correspondence between the Law Minister, Chief Justice of Delhi and Chief Justice of India, and the relevant notes made by them in regard to the non-appointment of a judge for a further term and the transfer of a High Court Judge privileged from disclosure

• JUDGMENT SUMMARY: S. P. Gupta Vs. President Of India And Others.
• DATE OF JUDGEMENT: 30 December, 1981
• JUDGES: A Gupta, D Desai, E Venkataramiah, P Bhagawati, R Pathak, S M Ali, V Tulzapurkar, P.N. Bhagwati, J.

SUBJECT:

The Indian Apex Court rejected the union government’s claim for security against disclosure and directed the Union of India to reveal the asked archives.

The Court contemplated that a specific report with respect to the affairs of the state is just safe from revelation when revelation is clearly contrary to public interest and for this case the appointment and transfer of judges is of immense public interest.

FACTS:

• The case dealt with various petitions involving significant constitutional inquiries with respect to the appointment and transfer of judges and the freedom of judiciary.
• One of the issues raised was with respect to the validity of Central Government orders on the non-appointment of two judges. To build up this case, the applicants looked for the disclosure of correspondence between the Law Minister, the Chief Justice of Delhi, and the Chief Justice of India.
• In any case, the state claimed benefit against revelation of these reports under article 74(2) of the Indian Constitution, which gives that the counsel offered by the Council of Ministers to the President cannot be asked into in any court, and section 123 of the Indian Evidence Act, which gives that evidence inferred from unpublished official records on state issues cannot be given without the authorization of the head of the concerned department.

IMPORTANT PROVISIONS:

The constitution of India:

1. Article 19(1)(a): All citizens shall have the right to freedom of speech and expression.
2. Article 74(2): The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.

The Indian Evidence Act, 1872:

1. Section 123: Evidence as to affairs of State.—No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.
2. Section 162: Production of documents.

ISSUES:

1. Whether the correspondence between the Law Minister, Chief Justice of Delhi and Chief Justice of India, and the relevant notes made by them in regard to the non-appointment of a judge for a further term and the transfer of a High Court Judge privileged from disclosure?

ANALYSIS OF THE JUDGEMENT:

• The Supreme Court of India rejected the government’s claim for assurance against divulgence and ordered the Union of India to reveal the records containing the correspondence. An open and successful participatory majority rule government system requires responsibility and access to data by the public around the working of the government.
• Introduction to the public gaze in an open government will guarantee a clean and healthy administration and could be a effective check against persecution, corruption, and abuse or misuse of authority. The concept of an open government is the coordinate emanation from the right to know, which is understood within the right to freedom of speech and expression ensured under Article 19(1)(a) of the Indian Constitution.
• Hence, the revelation of data in respect to government working must be the rule and secrecy the special case, defended only where the strictest necessity of public interest demands it.
• With regard to the dispute including Article 74(2), the Court held that whereas the counsel by the Council of Ministers to the President would be secured against judicial investigation, the correspondence in this case between the Law Serve, the Chief Equity of Delhi, and the Chief Equity of India was not secured simply because it was referred to in the advice.

CONCLUSION:

The concept of autonomy of the judiciary may be a respectable concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic nation. In case there's one guideline which runs through the whole texture of the Structure, it is the guideline of the rule of law under the Constitution, it is the judiciary which is entrusted with the assignment of keeping each organ of the State within the limits of the law subsequently making the run the show of law meaningful and effective.