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In Re: The Special Courts Bill, 1978
AIR 1979 SC 478, (1979) 1 SCC 380,  2 SCR 476
Hon’ble Judges/Coram: Y.V. Chandrachud, C.J., N.L. Untwalia, P.N. Bhagwati, P.N. Singhal, R.S. Sarkaria, S. Murtaza Fazal Ali and V.R. Krishna Iyer, JJ.
Date of Decision: 01.12.1978
The draft Special Courts Bill 1978 introduced in the Parliament by a private member seeks to create adequate number of courts to be called special courts. The Bill provides that a special court shall take cognizance of or try such cases as are instituted before it or transferred to it in the manner provided therein. If the Central Government is of opinion that there is prima facie evidence of the commission of an offense alleged to have been committed during the period of Emergency by a person who held high public or political office in India and that the said offense ought to be debit with under the Act, it shall make a declaration to that effect in every case in which it is of that opinion. A declaration made by the Central Government cannot be called in question in ;my court. Clause (7) of the Bill provides that a special count shall be presided over by a sitting Judge of a High Court in India or a person who has held the office as a Judge of a High Court in India and nominated by the Central Government in consultation with the Chief Justice of India. Clause 10(1) provides that notwithstanding anything contained in the Code of Criminal Procedure, an appeal shall lie as of right from any judgment or order of a special court to the Supreme Court of India both on fact and on law The President made a reference to the Supreme Court under Art. 143(1) of the Constitution for consideration of the question whether the Special Courts Bill 1978 or any of its provisions, if enacted would be constitutionally invalid. The other side raised the objection regarding the maintainability of the reference by the court.
I. Whether reference for the said bill should be entertained by the Court or not on?
- Has the Parliament legislative competence to provide for the creation of Special Courts as enacted by Clause 2 of the Bill?
- Has the Parliament legislative competence to confer appellate powers on the Supreme Court from judgments and orders of Special Courts as provided in Clause 10(1) of the Bill?
- Is it competent to the Parliament to confer jurisdiction on the Supreme Court to entertain and decide appeals and revisions pending before any other court on the date of declaration, as provided in Clause 6 of the Bill? II. Whether Parliament had the legislative competence to enact the provisions contained in the Special Courts Bill?
III. Whether the Bill or any of its provisions violate the rights guaranteed by Articles 14 and 21 of the Constitution?
Article 143(1) is couched in broad terms which provide that any question of law or fact may be referred by the President for the consideration of the Supreme Court if it appears to him that such a question has arisen or is likely to arise and if the question is of such a nature and of such public importance that it is expedient to obtain the opinion of the Court upon it. It is not necessary that the question on which the opinion of the Supreme Court is sought must have arisen actually. It is competent to the President to make a reference under Article 143(1) at an anterior stage, namely, at the stage when the President is satisfied that the question is likely to arise. The satisfaction is a matter essentially for the President to decide. The plain duty and function of the Supreme Court under Article 143(1) of the Constitution is to consider the question on which the President has made the reference and report to the President its opinion, provided of course the question is capable of being pronounced upon and falls within the power of the Court to decide. If, by reason of the manner” in which the question is framed or for any other appropriate reason the Court considers it not proper or possible to answer the question it would be entitled to return the reference by pointing out the impediments in answering it.
The right of this Court to decline to answer a reference does not flow merely out of the different phraseology used in Clauses (1) and (2) of Article 143, in the sense that Clause (1) provides that the Court “may” report to the President its opinion on the question referred to it, while Clause (2) provides that the Court “shall” report to the President its opinion on the question. Even in matters arising under Clause (2), though that question does not arise in this reference, the Court may be justified in returning the reference unanswered if it finds for a valid reason that the question is incapable of being answered.
A reference in such broad and general terms is difficult to answer because it gives no indication of the specific point or points on which the opinion of the Court is sought. It is not proper or desirable that this Court should be called upon to embark upon a roving inquiry into the constitutionality of a Bill or an Act. The Court should not be driven to imagine a challenge and save it or slay it on hypothetical considerations. The written briefs filed by the parties and the oral arguments advanced before us have, by their fullness and ability, helped to narrow down the legal controversies surrounding the Bill and to crystallize the issues which arise for consideration.
The challenge to the legislative competence of Parliament to provide for the creation of Special Courts is devoid of substance. Entry 11A of the Concurrent List relates to “Administration of justice; Constitution and organisation of all courts, except the Supreme Court and the High Court.’ By virtue of Article 246(2), Parliament has clearly the power to make laws with respect to the Constitution and organisation, that is to say, the creation and setting up of Special Courts. Clause 2 of the Bill is therefore within the competence of the Parliament to enact.
The argument of conferring the appellate powers on the Supreme Court from judgments of the Special Courts rests on the plea that the provisions of Chapter IV, Part V of the Constitution are exhaustive and therefore, no more and no greater jurisdiction can be conferred on the Supreme Court than the provisions of that Chapter authorise or warrant. It is impossible to accede to the contention that any such implications can arise out of the provisions of Chapter IV. The contention if accepted will result in the virtual abrogation of the legislative power conferred on the Parliament by Article 246(1) and (2) of the Constitution. Such a construction which renders illusory or nugatory other important provisions of the Constitution must be avoided, especially when it seeks its justification from a mere implication arising out of the fascicules of articles contained in Chapter IV. The provisions of that Chapter must therefore be read in harmony and conjunction with the other provisions of the Constitution and not in derogation thereof.
Once the argument regarding the exhaustiveness of the provisions of Chapter IV of Part V is rejected, Parliament clearly has the competence to provide by Clause 10(1) of the Bill that notwithstanding anything contained in the CrPC, 1973 an appeal shall lie as of right from any judgment or order of a Special Court to the Supreme Court both on fact and on law. A law which confers additional powers on the Supreme Court by enlarging its jurisdiction is evidently a law with respect to the ‘”jurisdiction and powers” of that court.
It must follow as a logical corollary that Parliament also possesses the legislative competence to provide by Clause 6 of the Bill that if at the date of the declaration in respect of any offence, an appeal or revision against any judgment or order in a prosecution in respect of such offence is pending in any court of appeal or revision, the same shall stand transferred to the Supreme Court. The provision contained in Clause 6 falls squarely within the field of legislation delineated by entry 77 of List I. The subject-matter of Clause 6 is the jurisdiction and powers of the Supreme Court. Entry 2 of List III, “Criminal procedure, including all matters included in the CrPC at the commencement of this Constitution” will also take care of Clause 6. Indeed, that entry, giving to it the widest possible meaning, may even support the provision in Clause 10(1).
The conclusion is irresistible that the classification provided for by the Special Courts Bill is valid and no objection can be taken against it. Since the Bill provides for trial before a Special Court of a class of offences and a class of offenders only, the primary question which arises for consideration is whether the Bill postulates a rational basis for classification of whether the classification envisaged by it is arbitrary and artificial. By Clause 5 of the Bill, only those offences can be tried by the Special Courts in respect of which the Central Government has made a declaration under Clause 4(1). That declaration can be made by the Central Government only if it is of the opinion that there is prima facie evidence of the commission of an offence, during the period mentioned in the preamble, by a person who held a high public or political office in India and that, in accordance with the guidelines contained in the preamble to the Bill, the said offence ought to be dealt with under the Act. The classification which Section 4(1) thus makes is both of offences and offenders, the former in relation to the period mentioned in the preamble, that is to say, from February 27, 1975 until the expiry of the proclamation of emergency dated June 25, 1975 and in relation to the objective mentioned in the sixth paragraph of the Preamble that it is imperative for the functioning of parliamentary democracy and the institutions created by or under the Constitution of India that the commission of such offences should be judicially determined with the utmost dispatch; and the latter in relation to their status, that is to say, in relation to the high public or political office held by them in India. It is only if both of these factors co-exist that the prosecution in respect of the offences committed by the particular offenders can be instituted in the Special Court. Offences alleged to have been committed during the period of emergency constitute a class by themselves and so do the persons who are alleged to have utilised the high public or political offices held by them as a cover or opportunity for the purpose of committing those offences. Offences alleged to have been committed during the emergency by persons holding high public or political offices in India stand in a class apart. Thus, persons who are singled out by the Bill for trial before Special Courts possess common characteristics and those who fall outside that group do not possess them.
The next point is whether the classification bears a rational nexus with the object which the Bill seeks to achieve. The object of the Bill is to ensure a speedy trial of the offences and offenders who constitute a single and special class. The close relationship between the basis of the classification and the object of the Bill is clear from the very face, of the Bill. As stated in the 5th paragraph of the Bill’s preamble, ordinary criminal courts, due to congestion of work, cannot reasonably be expected to bring the prosecutions contemplated by the Bill to a speedy termination. The recital of the 6th paragraph of the preamble shows the true nexus between the basis of classification under Clause 4(1) and the object of the Bill. That paragraph says that it is imperative for the functioning of the Parliamentary democracy and the institutions created by or under the Constitution of India that the commission of offences referred to in the preamble should be judicially determined with the utmost dispatch. Longer these trials will tarry, assuming the charges to be justified; greater will be the impediments in fostering democracy, which is not a plant of easy growth. Speedy termination of prosecutions under the Bill is the heart and soul of the Bill.
Thus, both the tests are fulfilled in the instant case, namely, that (1) the classification is founded on an intelligible differentia which distinguishes those which are grouped together from others who are left out and (2) the said differentia has a rational relation with the object sought to be achieved by the Bill, namely, speedy termination of prosecutions initiated in pursuance of the declaration made under Clause 4(1) of the Bill.
Therefore, the classification provided for by Clause 4(1) of the Bill is valid to the limited extent to which the Central Government is empowered to make the declaration in respect of offences alleged to have been committed during the period of emergency, by persons holding high public or political offices.
Article 21 is the only other provision of the Constitution which is apposite in this context. It provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. By Clause 9 of the Bill, an accused put up for trial before the Special Court has to be tried by the procedure prescribed by the Code for the trial of warrant cases before a magistrate. The trial, save as otherwise prescribed has to be governed by the said Code. The provisions of the Bill appear to be unfair and unjust in three important respects. In the first place, there is no provision in the Bill for the transfer of cases from one Special Court to another. The manner in which a Judge conducts himself may disclose a bias, in which case the interest of justice would require that the trial of the case ought to be withdrawn from him. There are other cases in which a Judge may not in fact be biased and yet the accused may entertain a reasonable apprehension on account of attendant circumstances that he will not get a fair trial. It is of the utmost importance that justice must not only be done but must be seen to be done. The absence of provision for transfer of trials in appropriate cases may undermine the very confidence of the people in the Special Courts as an institution set up for dispensing justice.
The second infirmity from which the procedural part of the Bill suffers is that by Clause 7, Special Courts are to be presided over either by a sitting Judge of a High Court or by a person who has held office as Judge of a High Court to be nominated by the Central Government in consultation with the Chief Justice of India. Unquestionably they occupy a position of honour and respect in society. But one cannot shut one’s eyes to the constitutional position that whereas by Article 217, a sitting Judge of a High Court enjoys security of tenure until he attains a particular age, the retired Judge will hold his office as a Judge of the Special Court during the pleasure of the Government. The pleasure doctrine is subversive of judicial independence. Yet another infirmity from which the procedure prescribed by the Bill suffers is that the only obligation which Clause 7 imposes on the Central Government while nominating a person to preside over the Special Court is to consult the Chief Justice of India. This is not a proper place and it is to some extent embarrassing to dwell upon the pitfalls of the consultative process though, by hearsay, one may say that as a matter of convention, it is in the rarest of rare cases that the advice tendered by the Chief Justice of India is not accepted by the Government. But the right of an accused to life and liberty cannot be made to depend upon pious expressions of hope, howsoever past experience may justify them. It is of the greatest importance that in the name of fair and unpolluted justice, the procedure for appointing a Judge to the Special Court, who is to be nominated to try a special class of cases, should inspire the confidence not only of the accused but of the entire community. These, in our opinion, are the three procedural infirmities from which the Bill suffers and which are violative of Article 21 of the Constitution, in the sense that they make the procedure prescribed by the Bill unjust and unfair to the accused.
The Parliament has the legislative competence to create Special Courts and to provide that an appeal shall lie as of right from any judgment or order of a Special Court to make a declaration under Clause 4(1) of the Bill in respect to the Supreme Court. Clauses 2 and 10(1) of the Bill are, therefore, within the Parliament’s legislative competence and the classification provided for in Clause 4(1) of the Bill is valid to the extent to which the Central Government is empowered to make a declaration in respect of offences alleged to have been committed during the period of Emergency by persons who held high public or political offices in India. Persons who are alleged to have committed offence prior to the declaration of Emergency cannot validly be grouped along with those who are alleged to have committed offences during the period of Emergency. Lastly, the procedure prescribed by the Bill for the trial of offences in respect of which a declaration can be validly made by the Central Government under Clause 4(1) of the Bill is just and fair except in regard to the provision in Clause 7 of the Bill, under which a retired Judge of the High Court can be appointed as a Judge of the Special Court, the provision in Clause 7 under which the appointment of a Judge to the Special Court can be made by the Central Government in consultation with but without the concurrence of the Chief Justice of India; and the absence of a provision for transfer of a case from one Special Court to another.
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