Global Freedom of Expression

S.P. Gupta v. Union of India

Closed Expands Expression

Key Details

  • Mode of Expression
    Public Documents
  • Date of Decision
    December 30, 1981
  • Outcome
    Access to Information Granted
  • Case Number
    (1982) 2 S.C.R. 365
  • Region & Country
    India, Asia and Asia Pacific
  • Judicial Body
    Supreme (court of final appeal)
  • Type of Law
    Constitutional Law
  • Themes
    Access to Public Information, Political Expression
  • Tags
    Official Secrets, Public Interest, Corruption, Public Officials

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Case Analysis

Case Summary and Outcome

The Indian Supreme Court rejected the central government’s claim for protection against disclosure and directed the Union of India to disclose the requested documents. The petitioners sought the disclosure of correspondence between the Law Minister, the Chief Justice of Delhi, and the Chief Justice of India on the appointment and transfer of judges. The Court reasoned that a particular document regarding the affairs of the state is only immune from disclosure when disclosure is clearly contrary to public interest and in this case the appointment and transfer of judges is of immense public interest.


The foregoing case dealt with a number of petitions involving important constitutional questions regarding the appointment and transfer of judges and the independence of judiciary. One of the issues raised was regarding the validity of Central Government orders on the non-appointment of two judges. To establish this claim, the petitioners sought the disclosure of correspondence between the Law Minister, the Chief Justice of Delhi, and the Chief Justice of India.

However, the state claimed privilege against disclosure of these documents under article 74(2) of the Indian Constitution, which provides that the advice tendered by the Council of Ministers to the President cannot be inquired into in any court, and section 123 of the Indian Evidence Act, which provides that evidence derived from unpublished official records on state affairs cannot be given without the permission of the head of the concerned department. Section 162 of the Evidence Act provides that a witness summoned to produce a document before a court must do so, and the court will decide upon any objection to this.

Decision Overview

In a case decided by Justice Bhagwati, the Supreme Court of India rejected the government’s claim for protection against disclosure and directed the Union of India to disclose the documents containing the correspondence. An open and effective participatory democracy requires accountability and access to information by the public about the functioning of the government. Exposure to the public gaze in an open government will ensure a clean and healthy administration and is a powerful check against oppression, corruption, and misuse or abuse of authority. The concept of an open government is the direct emanation from the right to know, which is implicit in the right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Indian Constitution. Therefore, the disclosure of information in regard to government functioning must be the rule and secrecy the exception, justified only where the strictest requirement of public interest demands it.

With respect to the contention involving Article 74(2), the Court held that while the advice by the Council of Ministers to the President would be protected against judicial scrutiny, the correspondence in this case between the Law Minister, the Chief Justice of Delhi, and the Chief Justice of India was not protected merely because it was referred to in the advice.

There are only two grounds on the basis of which the Central Government’s decision regarding appointment and transfer can be challenged: (1) there was no full and effective consultation between the Central Government and the appropriate authorities, and (2) the decision was based on irrelevant grounds. The correspondence in question would be relevant qua both these grounds, which necessitates its disclosure. Public interest lies at the foundation of the claim for protection under the Evidence Act. Under these considerations, the Court must decide whether disclosure of a particular document will be contrary to public interest. It must balance the public interest in fair administration of justice through disclosure with the public interest sought to be protected by nondisclosure, and then decide if the document should be protected.

The correspondence in the present case was found not to be protected. It dealt with appointment and transfer of judges, a matter of great public interest, and its disclosure would not have been detrimental to public interest. The apprehension of an ill-informed or captious public or of political criticism were not enough to justify the protection of the correspondence. After examining the correspondence, the Court decided that the Central Government order regarding non-appointment was justified.

Decision Direction

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Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

The Supreme Court of India recognized the public’s right to information as being included in rights to freedom of speech and expression. It also further narrowed the scope of protection from disclosure afforded government documents.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

  • India, Constitution (1949), art. 19
  • India, Const. art. 74(2)
  • India, Evidence Act, sec. 123
  • India, Evidence Act, sec. 162
  • India, State of Uttar Pradesh v. Narain, (1975) 3 S.C.R. 333
  • India, State of Punjab v. Sodhi Sukhdev Singh, (1961) 2 S.C.R. 371
  • India, Amarchand Butail v. Union of India, Appeal (Civil) 563 of 1963, SC

Other national standards, law or jurisprudence

  • U.K., Burmah Oil Co. Ltd. v. Bank of England, [1980] AC 1090
  • U.K., Conway v. Rimmer, [1968] AC 910
  • U.K., R. v. Lewes J.K. ex parte Home Secretary, [1973] AC 388
  • U.K., Glasgow Corporation v. Central Land Board, [1956] SC (HL) 1
  • U.K., Neilson v. Lougharre, [1981] 1 ALL ER 835
  • U.K., D.V. National Society for the Prevention of Cruelty to Children, [1977] 2 WLR 201
  • U.K., Science Research Council v. Nasse, [1979] 3 All ER 673
  • Austl., Sankey v. Whitlam, [1978] 21 Aus. LR 505
  • Austl., Commonwealth Lanyon Property Ltd. v. Commonwealth, [1974] 129 LR 650

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

Supreme Court decisions are binding on all courts within India.

The decision was cited in:

Official Case Documents

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