Criminal Law

CIA III

Justice Kuldip Singh’s Contribution in strengthening the

foundations of Indian Judiciary through his five judgments

Submitted to- Submitted by-

Dr. Ramesh Kumar Jinta Jaimon

Professor 19213015
SLCU, Delhi NCR
Introduction
A judge may come a judge may go but his judgment remains forever. It is believed that a
judge speaks through his judgments. It is evident from the plods of jurists from centuries that
a judge must possess stout common sense and empathetic concern with human qualities while
deciding a case.

Justice Kuldip Singh also known as “the Green Judge” was born on 1 st January 1932. He was
appointed to the Supreme Court on 14 th Dec 1988 and retired on 21st Dec 1996 before that he
had been the Advocate General of Punjab and subsequently the Additional Solicitor General
of India. 
He was one of the Judges in the 2 nd Judges Cases which gave primacy to the opinion of the
Chief Justice of India for appointing judges.

On the turf of environment law Justice Kuldip Singh was one such judge who brought a
revolution by introducing varied concepts such as sustainable development, intergenerational
equity, polluters pay principle etc.

The word “Collegium” means a group of members. Collegia are set up in the higher judiciary
in India viz, the High Courts and the Supreme Court of India for appointment and transfer of
judges in these Constitutional Courts. These collegia have judges as their members. So, in
collegium system of appointment professionals appoint professionals likewise judges appoint
judges.1

S.P Gupta v. Union of India and Ors. AIR 1982 SC 149 on 30th of December, 1981

In this case the Court held that ‘where there is difference of opinion among the Constitutional
functionaries in regard to the appointment of a judge in a High Court, the opinion of none of
the Constitutional functionaries is entitled. The ultimate power of appointment of a Supreme

1
hefactfactor.com/facts/law/civil_law/environmental_laws/polluter-pays-principle/1503/ visited on 24 th April
2022
Court Judge rests with the Central Government and that is in accord with the opinion of the
Chief Justice of India which is in accord with the Constitutional practice prevailing in all
democratic countries.

The court stated that the word “may” in Art 124 only makes it optional for the Central
Government to consult any specific judge. But it is mandatory to consult any judge. The case
also suggests that there should be a collegium of judges for appointment and transfer of
judges. This case upheld the Primacy of Executive in appointment and transfer of Judges.

Second Judges Case: - Supreme Court Advocates on Record Association v. Union of India
(1993) 4 SCC 441 Oct 6 1993

The nine-Judge Bench which included Justice Kuldip Singh overruled S.P. Gupta’s case, and
devised a specific procedure for appointment of Judges of the Apex Court in the interest of
“protecting the integrity and guarding the independence of the judiciary.” For this reason, the
primacy of the Chief Justice of India was held to be essential.

After its judgement, the collegium system was adopted in the appointment of Supreme Court
and High Courts Judges. The nine Judges examined two questions:

1. The position of the Chief Justice of India

2. The justiciability of fixation of judge strength

By overruling the first judges’ case, the second judges case decided that the CJI should
make appointment and proposal but it is not only him but there should be a collegium
consisting of him and two other senior most judges of the Supreme Court for making
proposal and appointment of Judges. The CJI must consult the other members of the
collegium in making proposal for appointment and transfer of judges. The collegium
then should send its proposal to the President for his consent. The bench consisting of
Justice Kuldip Singh ruled that Art 124 and 217 in this regard had to be properly
interpreted. So, this finally set up a collegium of judges as suggested by first judge
case. The three members of the collegium would not see each other when it came to
making proposal and many times the CJI did not accept the recommendation of his
two seniors most colleagues of the collegium. This only meant that the Second judges
 Case upheld the primacy of Chief Justice of India. The three members collegium
didn’t seem to be working well.
 Singh in the Supreme Court bench ruling which gave the judiciary primacy over
the executive in the appointment of judges, disagreed with his colleagues’ view
that the chief justice should be appointed on the basis of seniority, rather than
selection.

Third Judges Case – in Re Special Reference Case AIR 1999 SC 1

Once a proposal sent by the Supreme Court collegium was not accepted by the Executive. The
primacy of the CJI continued which made the executive file a reference under Article 143 of
the Constitution in the name of the President for advisory opinion of the Supreme Court.

The executive didn’t question the correctness of collegiate opinion nor did it question the
judgement in the Second Judges Case. The thing that was improved from the previous case
was to increase the number of the judges in the collegium. The collegium was now to consist
of the CJI and the four other senior most judges of the Supreme Court. This reference case
came to be known as ‘the Third Judges Case’.2

When an advocate is to be appointed as a judge of a High Court, the Chief Justice of that High
Court in consultation with other judges and members of the Bar makes a list of meritorious
persons and sends his proposal to the Supreme Court Collegium for its consent. The SC
collegium selects some among the list and sends its proposal to the President for his assent.

When CJ of a High Court needs to be appointed the Supreme Court collegium makes a list of
judges on its own and sends it to the President for his assent. A judge of one High Court
cannot become Chief Justice of the same High Court.

When Supreme Court judges have to be appointed, the Supreme Court collegium prepares its
own list of meritorious persons and send its proposal for the assent of the President.

The Chief justice of India is always appointed on the seniority basis meaning senior most
judge of the Supreme Court shall be appointed as the Chief Justice of India.
2
Indian kanoon.org
So far, the collegium system has been working well keeping the independence of judiciary
intact. However, there has to be more transparency in the appointment and transfer of judges.
The collegium must have the aim of appointing the best judges in the higher judiciary of India.
The dispute between the executive and the judiciary is only because both the constitutional
functionaries don’t have this aim. They are not acting Bonafede. It’s only when all the
constitutional functionaries act bonafide and in cooperation with each other that this country
will produce the best judges in the world and will have the best judiciary in the world.
Soon after the judiciary took over the task of what came to be known as “judges appointing
judges”, cracks began to appear. Nepotism and opacity were alleged against Collegium as the
legal fraternity lamented the fall in standards of judiciary.

M.C Mehta v. Kamal Nath & Ors

Span Motels had built a motel on the bank of the “River Beas”. This was leased by
the Central Government in 1981. Apart from the main land that was being used for
construction of the Motel, Span Motels had also encroached upon an additional area of land
adjoining the leasehold area which was also leased out to them. The use of earthmovers and
bulldozers had devastating effects on the adjoining River Beas. It was discovered that Kamal
Nath the Minister of Environment and Forest regularized forest land encroachment that was
being conducted by Span Motels.

 The doctrine of public trust was coined by Justice Kuldip Singh. In the Span
Motels case involving dubious leases granted by former environment minister
Kamal Nath3, he ruled that the Government was merely the custodian of natural
resources and no functionary had any business using them as private property.

Vellore Citizens Welfare Forum v. Union of India

  Vellore Citizens Welfare Forum filed a PIL under Article 32 of the Constitution
of India. The petition was filed due to the excessive pollution caused by River
Palar pollutants by the tanneries and other industries in the State of Tamil Nadu.
Palar River is the main source of drinking and bathing water for the people living
nearby. The Tamil Nadu Agricultural University Research Centre, Vellore
3
https://indianlegalsolution.com/justice-kuldip-singh-green-judge-know-your-judges/ visited on 24 th April 2022
 discovered that approximately 35,000 hectares of agricultural land have turned
either entirely or partially unsuitable for cultivation. In this case the Supreme
Court critically analysed the relationship between environment and industrial
development. The court held that a contamination control device must be set up
in every tannery. It was J Kuldip Singh who coined the term polluter pays and
precautionary principle in environment law, which put the onus of
environmental protection squarely on the industrial sector. “He was bold in
protecting the right to life,” says Mr. M.C. Mehta the environmental lawyer.

 “The system of judicial appointments should be more and more transparent,”

says the former judge, who likes to have a national debate on the issue. He states
that the chief justice controls the high courts and lower courts by virtue of their
power to appoint and transfer judges. The exercise of this power must be
completely transparent.

 The judge dismisses politicians’ increasing fear of judicial activism and their
threats to curb it. “Parliament is supreme. If they make a law, the judiciary has to
accept it. But if the law is unconstitutional, the Supreme Court will strike it
down…the power of judicial review cannot be taken away from the court.” 4 He
disapproves of the lower courts’ tendency to make “extrajudicial comments”
about politicians.

 He asked the high courts to set up “green benches” to tackle local ecological
hazards created by certain industries.

 “I do not believe it is being misused. It is the Supreme Court judge who decides
whether to act on a PIL or not, so where is the question of arbitrariness?” If
nothing else, Singh certainly livened up the social lives of his fellow judges

Retired Justice Kuldip Singh became known as the “green judge” after he presided over a
number of PILs on environmental issues. Till his retirement from the Supreme Court in 1996,

4
https://indianlegalsolution.com/justice-kuldip-singh-green-judge-know-your-judges/ visited on 24 th April 2022
he passed crucial judgments on air pollution, including specifying norms for industries
around the Taj Mahal.  
  
His boldness and innovative use of law provoked critics to accuse him of passing off-the-cuff
orders. But there was a method in the apparent madness, says Mehta. Whether it was putting
the lid on pollution around the Taj Mahal or ejecting hazardous factories from Delhi, he was
pragmatic. For months, he coaxed, bullied and threatened the Gas Authority of India (GAIL)
into giving pollution-free natural gas to the industries around the Taj.5

Bureaucrats were often threatened with jail for late implementation of orders. At his
struggling best while dealing with human rights violations he produced unprecedented
compensations of Rs 10 lakh to victims and their families.

Conclusion

We can see how Justice Kuldip Singh with a bold and steady heart worked towards
strengthening the judicial democracy of the country and was undeterred in stating his
thoughts on appointments of Judges to the Supreme Court and in the Collegium. His interest
in environment related matters made him a Green Judge. We need to learn how J Kuldip
Singh used law as a tool to remove all the loopholes in the democracy and the injustice faced
by the people and nature.

5
ibid