S. P. Gupta v Union of India (1981)

It does two very different things, and an answer must keep them apart.

• On judicial appointments it is the First Judges case: it held that consultation with the Chief Justice of India does not mean concurrence, so the Chief Justice's recommendations were not binding on the Government. That holding was overruled in 1993.
• On standing it is the foundation of public interest litigation in India. That part has never been doubted and is the more important half of the case today.

The basic question was the independence of the judiciary, alleged to have been eroded by three things:

1. short-term extensions given to three Additional Judges of the Delhi High Court;
2. the transfer of the Chief Justices of two High Courts; and
3. a circular issued by the Union Law Minister to the Chief Justices of High Courts and to State Chief Ministers.

The circular recited that it had repeatedly been suggested — by bodies including the States Reorganisation Commission, the Law Commission and various Bar Associations — that to further national integration and combat narrow parochial tendencies bred by caste, kinship and other local links and affiliations, one-third of the Judges of a High Court should as far as possible be from outside the State in which that High Court is situated; that no start had been made; and that the feeling that effective steps should be taken was strong, growing and justified.

It then asked each addressee to obtain the written consent of (a) all Additional Judges working in the High Court of the State to be appointed as permanent Judges in any other High Court in the country, naming three High Courts in order of preference; and (b) persons already proposed, or to be proposed in future, for initial appointment, to the same effect. It made clear that furnishing consent or a preference implied no commitment by the Government about appointment or accommodation, and asked for the consents to be sent within a fortnight.

The petitioners were advocates, not persons personally aggrieved by any of the three measures. The Law Minister's counsel took a preliminary objection to their locus standi: a person who had not suffered a legal injury had no standing to maintain a writ petition assailing the constitutional validity of the circular.

The traditional rule

Bhagwati J stated it fairly before dismantling it. Judicial redress is available only to a person who has suffered a legal injury by reason of violation of his legal right or legally protected interest by the impugned action of the State or a public authority or any other person, or who is likely to suffer such injury by reason of a threatened violation. The basis of entitlement is personal injury to property, body, mind or reputation arising from an actual or threatened violation. It 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 existing relaxations

The rule had already been relaxed in three classes of case:

• The ratepayer. A ratepayer of a local authority has standing to challenge its illegal action — for example the grant of a cinema licence — and to challenge misuse of municipal funds. The reason is that his interest in the application of the municipality's money is direct and immediate and he has a close relationship with the municipality.
• The participant. If a person is entitled to participate in the proceedings of the decision-making process culminating in the impugned decision, he has standing to challenge that decision. The authority given is Queen v Bowman, where any member of the public had a right to be heard in opposition to a licence application and, having that right, could ask for mandamus to compel the licensing justices to hear and determine the application according to law.
• The statutory recognition. The statute itself may expressly recognise the applicant's standing even though no legal right of his has been violated; the illustration given is Jasbhai Motibhai Desai v Roshan Kumar, where the Bombay Cinematograph legislation recognised a special interest in persons residing in or concerned with the locality.

The new rule

The strict rule that only a person who has suffered a specific legal injury may sue is relaxed, and a broad rule is evolved which gives standing to any member of the public who is not a mere busybody or a meddlesome interloper but who has sufficient interest in the proceeding.

The three reasons given

First, better administration. The risk of legal action against the State or a public authority by any citizen will induce the State or such authority to act with greater responsibility and care, thereby improving the administration of justice.

Second, the changed function of law. Law is increasingly used as a device of organised social action for the purpose of bringing about socio-economic change. The task of national reconstruction has enormously increased developmental activity; law is being used for social and economic development; and it is creating more and more a new category of rights in favour of large sections of people and imposing a new category of duties on the State and public officials. Individual rights and duties are giving place to meta-individual, collective, social rights and duties of classes or groups. That is not to say individual rights have ceased to matter, but they are practically meaningless in today's setting unless accompanied by the social rights that make them effective and really accessible to all. Among the new socio-economic rights sought to be created in pursuance of the Directive Principles are freedom from indigency, ignorance and discrimination, the right to a healthy environment, the right to social security, and protection from financial, commercial, corporate or even governmental oppression.

Third, the inadequacy of two-party litigation. Conferring such rights and imposing public duties on the State generates situations in which a single human action can be beneficial or prejudicial to a large number of people, making the traditional scheme of litigation as merely a two-party affair entirely inadequate. The examples given are the standard ones: the discharge of effluent into a lake or river may harm all who want to enjoy its clean water; emission of noxious gas may injure large numbers who inhale it; defective or unhealthy packaging may damage all consumers of the goods; and an illegal rise in railway or bus fares may affect the entire public that uses them.

The limit

Standing is not everything. There is a vital distinction between locus standi and justiciability: it is not every default on the part of the State or a public authority that is justiciable, even at the instance of a petitioner who has standing.

On consultation the majority held that the recommendations of the Chief Justice of India were not binding on the Government. Once that decision was rendered, the Government obtained, in effect, a licence to disregard the recommendations of the judiciary. It was a literal interpretation of the word consultation, but it had heavy political consequences, and the recommendation of the Chief Justice was no longer accepted as an invariable rule.

The Court also considered Art. 74(2) — the bar on inquiring into the advice tendered by Ministers to the President — in the context of the Government's claim of privilege over the appointment correspondence.

In 1993 the issue was taken to the Court again and the judgment in S. P. Gupta was overruled by a Bench of nine judges in Supreme Court Advocates-on-Record Association v Union of India, which held that a collegiate opinion of a collective of judges is binding on the Government and established the primacy of the judiciary in appointments. The standing holding was untouched.

• On standing: any member of the public having sufficient interest, who is not a busybody or meddlesome interloper, may move the court where a legal wrong or legal injury is caused to a person or class of persons who cannot approach the court themselves.
• On appointments: consultation under Arts. 124(2) and 217(1) does not mean concurrence — overruled in 1993.

• In a PIL question, give the traditional rule, the three pre-existing relaxations, the new rule in its exact terms, and the three reasons. Then add the justiciability caveat, which distinguishes a good answer.
• In an appointments question, use it only as the first of four stages: S. P. Gupta (1981) — Second Judges (1993) — Third Judges (1998) — NJAC (2015). Never state its holding as the present law.
• Note the irony worth a sentence in an essay: the case that most expanded access to the courts is also the case that most weakened judicial control over who sits in them, and it was the second holding, not the first, that the Court later reversed.