REFERENCE No 1 OF 1978 Under article 1431 of the Constitution of India
section V Gupte Attorney General R N Sachthey and R B Datar for the Attorney General for India
section N Kackar Sol
Genl R N Sachthey and section Markandaya for the Union of India
K D Chattered Adv
Bihar U P Singh for the Adv
Bihar
A K Malik Adv
Genl JK Altaf Ahmed and Brij Behari Singh for the AG JK R N Byra Reddy Adv
Genl section section Ray and A K Sen N Nettar J section Sinha and Mrs Alva Margaret for the A G Karnataka
Abdul Khader Adv
 Kerala and K M K Noir for the AG Kerala R section Bhonsle Adv
Genl Maharashtra V C Kotwal and M N Shroff for the AG Maharashtra
B M Patnaik Adv
Genl Orissa Miss Uma Mehta and R K Mehta for the AG Orissa
491 R K Rastogi Adv
Rajasthan section M Jain and M I Khan for the AG Rajasthan
V P Raman Adv
Tamil Nadu and A V Rangam for the AG Tamil Nadu
O P Rana for the AG UP
section K Acharya Adv
West Bengal Sukumar Basu and section Chatterjee for the AG West Bengal
F R Mridul H K Puri Vijendra Jain Arunashwar Gupta Vivek Sethi and Vijay Behl for the Intervener Mr V C Shukla 
section Wasu and O P Sharma for the Intervener Gyani Zail Singh 
M C Bhandare and O P Sharma of the Intervener Harideo Joshi
A K Sen Bishambar Lal and Miss Manisha Gupta for the Intervener Dhirendra Brahmachari
M C Bhandare Mrs Sunanda Bhandare R Nagarathnan Wazir Singh and Miss Malini Poduval for the Interveners Bansi Lal Shiv Kumar Agarwal and Surinder Singh
A section Bobde M R Barot Mrs Sunanda Bhandare R Nagarathnan Wazir Singh Miss Malini Poduval and R N Mittal for the Intervener C M Stephen
Frank Anothony Mrs section Bhandare M R Barot R N Mittal R Nagarathnam and Miss Malini Poduval for the Intervener Kamlapati Tripathi
P Shiv Shankar and B Goburdhan for the Intervener Pranab Mukherjee 
D D Chawla and N section Das Bahl for the Intervener R K Dhawan 
Shiva Pujan Singh for the Intervener Jagmohan and P section Bhinder 
M C Bhandare N Nettar J section Sinha and Mrs Alva Margaret for the Intervener Dev Raj Urs
A N Karkhanis for the Intervener Narain Dutt Tiwari
A section Bobde 1
N Misra V C Mahajan Ram Lal D Goburdhan for the Interveners Jagannath Misra and Ram Lal
AG Noorani Miss Rani Jethmalani and H N Hingorani for the Intervener Ram Jethamalani P Silva Shankar Frank Anthony P P Rao and G N Rao Interveners for the State of Andhra Pradesh
492 section section Ray P N Ramalingam and A T M Sampath for the applicant Intervener State of JK and for the Advocate General Haryana 
section C Mohanta Adv
Genl Haryana Naubat Singh Dy
Genl R N Sachthey and Girish Chandra for the Advocate General Haryana Chandrachud CJ delivered the Opinion on behalf of Bhagwati Sarkaria and Fazal Ali JJ
and himself
Krishna Iyer Untwalia and Shinghal JJ delivered separate Opinions
CHANDRACHUD CJ
On August 1 1978 the President of India made a reference to this Court under article 1431 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 full text of the reference is as follows WHEREAS certain Commissions of Inquiry appointed by the Central Government under the Central Act 60 of 1952 have submitted reports which indicate that there is reason to believe that various offences have been committed by persons holding high political and public offices during the period of operation of the Proclamation of Emergency dated the 25th June 1975 and the period immediately preceding that Proclamation AND WHEREAS investigations into such offences are being made in accordance with law and are likely to be completed soon AND WHEREAS suggestions have been made that the persons in respect of whom the investigations reveal that a prima facie case has been made out should be tried speedily in Special Courts constituted for that purpose AND WHEREAS a proposal has been made that legislation should be enacted for the creation of an adequate number Or Special Courts for the speedy trial of such offences on the lines of the Bill a copy whereof is annexed hereto hereinafter referred to as the Bill AND WHEREAS doubts have been expressed with regard to the constitutional validity of the Bill and its pro visions AND WHEREAS there is likelihood of the
Constitutional validity of the provisions of the Bill if enacted and any action taken thereunder being challenged in courts of law involving protracted and avoidable litigation 493 AND WHEREAS in view of what has been hereinbefore stated it appears to me that the question of law hereinafter set out is likely to arise and is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court of India thereon NOW THEREFORE in exercise of the powers conferred upon me by clause 1 of Article 143 of the Constitution I Neelam Sanjiva Reddy President of India hereby refer the following question to the Supreme Court of India for consideration and report thereon namely Question 1 Whether the Bill or any of the provisions thereof if enacted would be constitutionally invalid  New Delhi Dated 1st day of August 1978 PRESIDENT OF INDIA Annexed to the order of reference is a copy of the Bill which runs thus THE SPECIAL COURTS BILL 1978 A BILL to provide for the trial of a certain class of offences WHEREAS Commissions of
Enquiry appointed under the Commissions of Enquiry Act 1952 have rendered reports disclosing the existence of prima facie evidence of offences committed by persons who have held high public or political offices in the country and others connected with the commission of such offences during the operation of the Proclamation of Emergency dated 25th June 1975 and during the preceding period commencing 27th February 1975 when it became apparent that offenders were being screened by those whose duty it was to bring them to book AND WHEREAS investigations conducted by the Government through its agencies have also disclosed similar offences committed during the period aforesaid AND WHEREAS the offences referred to in the recitals aforesaid were committed or continued during the operation 494 of the Promulgation of Emergency dated 25th June 1975 during which a grave emergency was clamped on the whole country civil liberties were withdrawn to a great extent important fundamental rights of the people were suspended strict censorship on the press was placed and judicial powers were crippled to a large extent AND WHEREAS it is the constitutional legal and moral obligation of the State to prosecute persons involved is the said offences AND WHEREAS the ordinary criminal courts due to congestion of work and other reasons cannot reasonably be expected to bring those prosecutions to a speedy termination AND WHEREAS it is imperative for the functioning of parliamentary democracy and the institutions created by or under the Constitution of India that the commission of offences referred to in the recitals aforesaid should be judicially determined with the utmost dispatch AND WHEREAS it is necessary for the said purpose to create additional courts presided over by a sitting judge of a High Court in India or a person who has held office as a judge of a High Court in India AND WHEREAS it is expedient to make some procedural changes whereby avoidable delay in the final determination of the guilt or innocence of the persons to be tried is eliminated without interfering with the right to a fair trial BE it enacted by Parliament in the Twenty ninth year of the Republic of India as follows 1
1 This Act may be called the Special Courts Act 1978
2 It shall come into force at once
The Central Government shall by notification create adequate number of courts to be called Special Courts
A Special Court shall take cognisance of or try such cases as are instituted before it or transferred to it as hereinafter provided
1 If the Central Government is of the opinion that there is prima facie evidence of the commission of an offence 495 alleged to have been committed during the period mentioned in the preamble by a person who held high public or political office in India and that in accordance with the guidelines contained in the Preamble hereto the said offence ought to be dealt with under the Act the Central Government shall make a declaration to that effect in every case in which it is of the aforesaid opinion
2 Such declaration shall not be called in question in any court
On such declaration being made any prosecution in respect of such offence shall be instituted only in a Special Court designated by the Central Government and any prosecution in respect of such offence pending in any court in India shall stand transferred to a Special Court designated by the Central Government
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 whether pending or disposed of is itself pending in any court of appeal or revision the same shall stand transferred for disposal to the Supreme Court of India
A Special Court shall be presided over by a sitting judge of a High Court in India or a person who has held office as a judge of a High Court in India and nominated by the Central Government in consultation with the Chief Justice of India
A Special Court shall have jurisdiction to try any person concerned in the offence in respect of which a declaration is made under section 4 either as principal conspirator or abettor and all other offences and accused persons as can be jointly tried therewith at one trial in accordance with the Code of Criminal Procedure 1973
A Special Court shall in the trial of such cases follow the procedure prescribed by the said Code for the trial of warrant cases before a Magistrate and save as otherwise provided in this Act be governed by the said Code
1 Notwithstanding anything in the said Code 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
496 2 Except as aforesaid no appeal or revision shall lie to any court from any judgment or order of a Special Court
After receipt of the reference On August 1 a notice was issued to the Attorney General on the 2nd to appear before the Court on the 4th for taking directions in the matter
On the 4th August upon hearing the Attorney General the Court directed inter alia that 1 Notice of the reference be given to the Union of India and the Advocates General of the States requiring them to submit their written briefs before September 4 1978 2 Notices be published in five newspapers at Bombay New Delhi Calcutta Madras and Bangalore inviting all persons likely to be affected by the passage of the Bill to apply for permission to appear or intervene in the proceedings 3 Interveners will be permitted to submit their written arguments but will not be entitled to be heard orally unless the Court considers it fit and proper to do so 4 Parties concerned shall appear before the Court on August 21 for taking further directions and 5 that the hearing of the reference will commence on September 11 1978 subject to the reasonable convenience of all concerned
Notices were issued by the Registry of this Court on the 4th August itself to the Union of India and Advocates General of 22 States
The newspaper notices were published soon thereafter
By August 21 a large number of applications were received by the Court asking that the applicants should either be impleaded to the reference as parties or in the alternative that they should be allowed to intervene in the proceedings
On August 21 the Court passed an order after hearing all the interested parties that it did not consider it necessary to implead anyone as a formal party to the reference
The Court however granted permission to 18 persons and 2 State Governments to intervene in the proceedings
Those eighteen are Sarvashree V C Shukla Gyani Zail Singh Dhirendra Brahmchari Bansi Lal Harideo Joshi Pranab Mukherjee R K Dhawan Jagmohan P section Bhinder Shiv Kumar Aggarwal Surinder Singh Dev Rai Urs Narain Dutt Tiwari Jagannath Misra Ram Lal Ram Jethmalani C M Stephen and Kamlapati Tripathi
The two State Governments which were allowed to intervene are the State of Karnataka and the State of Andhra Pradesh
The applications of all others for being impleaded as parties or for intervention were rejected
Written briefs were filed by the Union of India the Advocates General the two State Governments and the interventionists
The 497 State of Jammu and Kashmir complained on the date of hearing that its Advocate General had taken a stand in his written brief which did not reflect the view of the State Government on the question referred to the Court by the President
Thereupon the State of Jammu and Kashmir was permitted to file its written brief such as it was advised and through such advocate as it desired
The State Government filed its brief through another advocate
At the commencement of the hearing of the reference on September 19 counsel appearing for some of the interventionists as also some of the Advocates General raised a preliminary objection to the maintainability of the reference contending that for various reason which were mentioned by them in their written briefs the reference was incompetent and invalid and therefore the Court should refuse to answer the question submitted by the President for its consideration and report
As the preliminary objection required for its appreciation and determination an understanding of the case of the Union of India we postponed the consideration of that objection until after the arguments in support of the reference were over
Accordingly we first heard the learned Attorney General the learned Solicitor General who appeared on behalf of the Union of India the Advocates General who supported the reference and Shri Ram Jethmalani one of the interventionists on all conceivable aspects of the reference
Thereafter we heard the other side on all its contentions including the preliminary objection that the reference was not maintainable
We are indebted to the learned counsel on both sides for the able assistance rendered by them through their written briefs and oral arguments
The written briefs facilitated a clearer perception and understanding also their respective points of view and enabled counsel without much persuasion to reduce their oral submissions to reasonable pro portions
We will dispose of the preliminary objection before taking up the other points for consideration
The preliminary objection to the maintainability of the reference is founded on a variety of reasons and circumstances which may be stated as follows Shri A K Sen who appears for the State of Karnataka and for Shri Dhirendra Brahmchari contends that we will be well advised to refuse to answer the reference because it is of a hypothetical and speculative character and is also vague
The reference was made by the President on August 1 1978 which was even before the Special Courts Bill was introduced in the Look Sabha by a Private Member Shri Ram Jethmalani on August 4 1978
The Bill may or may not become a law and even if it is passed by both the Houses of legislature its 498 provisions may undergo fundamental changes during the parliamentary debate
As regards vagueness Shri Sen contends that the President has posed a broad and omnibus question as to whether the Bill if enacted will be constitutionally invalid without particularising the reasons or the grounds on which it may become invalid
A law can be constitutionally invalid either for want of legislative competence or for the reason that it violates any of the fundamental rights conferred by the Constitution
Not only does the reference according to the learned counsel not specify which of these two reasons may invalidate the bill if it becomes an Act but the reference does not even mention the fundamental right or rights which are likely to be violated if the Bill is passed by the Parliament
Reliance was placed in support of these contentions on the judgment of the Privy Council in Attorney General for the Dominion of Canada vs Attorney General for the Provinces of Ontario Quebec and Nova Scotia1 Attorney General for Ontario vs The Hamilton Street Railway Company and others2
Attorney General for the Province of Alberta vs Attorney General for the Dominion of Canada4
In re The Regulation and Control of Aeronautics in Canada4 and Attorney General for Ontario and Others vs Attorney General for Canada and Others
5 Counsel also relied on the decision of the Federal Court in the Estate Duty Bill6 case and on the decisions of this Court in the references relating to The Kerala Education Bill7
The Berubari Union and Exchange of Enclaves8 The Sea Customs Act Bill9 the UP Legislative Assembly10 and the Gujarat Legislative Assembly11 as showing that whenever a reference is made by the President under article 1431 of the Constitution a specific question or questions are referred for the opinion of this Court
Our attention was finally drawn to a judgment of the Canadian Supreme Court 12 in a reference made by the Governor General in Council to the Supreme Court of Canada under section 55 of the Supreme Court Act 1927 regarding the validity of three Bills passed by the Legislative Assembly of the Province of Alberta which were reserved for signification of the Governor General s pleasure
1 2 3 4 5 6 7 1959 SCR 995 8 1960 3 CR 250 9  10 1965 I SCR 413 11 1975 I SCR 504 12 1938 Canada Law Reports 100 SC 499 The learned Advocate General for the State of Karnataka while adopting Shri Sen s arguments on the preliminary objection added that we should refuse to answer the reference because the opinion of the Supreme Court was being sought as if it were a Joint Select Committee of the Parliament a position which it is neither equipped to fill nor one which it ought to acquiesce in
It was contended that article 1431 in sharp contrast with article 1432 uses the word may which leaves a wide margin of discretion to this Court whether or not to answer a reference Shri Mridul who appears for Shri V C Shukla objected to the maintainability of the reference on the additional ground that whereas 1 all references made by the President to the Supreme Court in the past were of institutional significance the present one was an isolated and unique case of a reference of individual significance
Learned counsel contended that the vice of the reference lies in the President seeking the opinion of this Court on a purely political question which ought to restrain the Court from expressing its opinion
Shri Frank Anthony who appears for Shri Kamlapati Tripathi leader of the opposition in the Rajya Sabha opened his argument by contending that there is no such thing as the Special Courts Bill in existence and therefore the reference is incompetent
He said in all solemnity that if anything were to happen to the mover of the Bill in terms of his physical existence the Bill will lapse and then there will be nothing 1 for this Court to answer
It must however be stated in fairness to Shri Anthony that he expressed the hope that the mover of the Bill may live for a hundred years
Learned counsel drew our attention to rule 110 of the Rules of Procedure and Conduct of Business in Lok Sabha relating to withdrawal of Bills which shows that a member in charge of a Bill can normally withdraw the Bill whenever has desires to do so
Counsel expostulated that the Bill which was moved by a public prosecutor was influenced by oblique political motives
We have no power to lift the Bill from the Lok Sabha said the counsel and consider its constitutional validity
Shri M C Bhandare who appears for Shri Bansi Lal and others contended that we should refuse to answer the reference because the expediency which prevailed upon the President to make the reference is political and not constitutional
Counsel further urged that article 1431 cannot be resorted to in a manner which will lead to the virtual abrogation of article 32 of the constitution
Counsel drew copiously on an article by Felix Frankfurter who later became a celebrated Judge of the United States Supreme Court which appeared in the Harvard Law Review
The author says therein that it was extremely 500 dangerous to encourage extension of the device of advisory opinion too constitutional controversies that the Supreme Court of America was not a House of Lords with revisory powers over legislation that the legislature cannot be deprived of its creative function and that if the Supreme Court were called upon tender its advisory opinion on the validity of laws it will lead to weakening of legislative and popular responsibility
After extracting a passage from James Bradley Thayer s Life of Marshall  to the effect that references to courts dwarf the political capacity of the people and deaden its sense of moral responsibility the learned author concludes his article thus It must be remembered that advisory opinions are no merely advisory opinions
They are ghosts that slay
Shri Shiv Shankar who appears for the State of Andhra Pradesh and for Shri Pranab Mukherjee founded his preliminary objection on the ground that since the Parliament is seized of the Bill we should not answer the reference
Shri Bobade who appears for Shri C M Stephen leader of the opposition in the Lok Sabha and for Shri Jagannath Misra contended that article 1053 contains a constitutional bar against our entertaining the reference since it is the power and privilege of the Parliament and not of this Court to decide whether the Bill should become an Act and whether the provisions of the Bill are unconstitutional
Shri O P Sharma who appears for Shri Zail Singh and for Shri Harideo Joshi made a similar argument by contending that notwithstanding our opinion the Parliament would be within its power in passing the Bill after a due discussion of its provisions and therefore we ought not to answer the reference
Shri Shiv Pujan Singh appearing on behalf of Shri Jagmohan and Shri P section Bhinder contended that the reference is incompetent because it violates articles 1071 108 and 111 of the Constitution
His argument is that if we were to answer the reference the powers and privileges of the Parliament and indeed of the President himself which are conferred by the aforesaid provisions of the Constitution shall have been curtailed or encroached upon
Whenever interveners having a common interest m the subject matter of a proceeding appear through different counsel there is unavoidably a certain amount of overlapping in their arguments howsoever each counsel may begin with the assurance and quite genuinely that he will not cover the same ground once over again
Striking a 501 new path when so many who have preceded have already walked on the same field is easier assured than achieved though we cannot deny that counsel before us strove to their utmost to keep to the time schedule and to throw some new light on the question whether the reference is valid and whether we should or should not answer it
Analysing the various points of view converging on the preliminary objection the following contentions emerge for our consideration 1 That the reference is hypothetical and speculative in character  2 that the reference is vague general and omnibus 3 that since the Parliament is seized of the Bill it is its exclusive function to decide upon the constitutionality of the Bill and if we withdraw that question for our consideration and report we will be encroaching upon the functions and privileges of the Parliament 4 that the reference if entertained will virtually supplant the beneficent and salutary provisions of article 32 of the Constitution 5 It is futile for us to consider the constitutionality of the Bill because whatever may be our view it will be open to the Parliament to discuss the Bill and to pass or not to pass it with or without amendment 6 The reference raises a purely political question which we should refrain  from answering and 7 Considering the repercussions of the exercise of advisory jurisdiction both expediency and propriety demand that we should return the reference unanswered
We will consider these contentions seriatim
Article 143 of the Constitution under clause 1 of which the President has made this reference to the Supreme Court reads as follows 1431 If at any time it appears to the President that a question of law or fact has arisen or is likely to arise which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it he may refer the question to that Court for consideration and the Court may after such hearing as it thinks fit report to the President its opinion thereon
2 The President may notwithstanding anything in the proviso to article 131 refer a dispute of the kind mentioned in the said proviso to the Supreme Court for opinion and the Supreme Court shall after such hearing as it thinks fit report to the President its opinion thereon
502 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
Though questions of fact have not been referred to this Court in any of the six references made under article 1431 that article empowers the President to make a reference even on questions of fact provided the other conditions of the article are satisfied
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 1431 at an anterior stage namely at the stage when the President is satisfied that the question is likely to arise
The satisfaction whether the question has arisen or is likely to arise and whether it is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it is a matter essentially for the President to decide
The plain duty and function of the Supreme Court under article 1431 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
With these preliminary observations we will consider the contentions set forth above
We are unable to agree that the reference is of a hypothetical or speculative character on the ground that the Bill has yet to become an Act
It is true that the mover of the Bill may withdraw the Bill or the Bill may undergo extensive amendments of a fundamental charac 503 ter before it is passed if it is passed at all
But these considerations cannot affect the validity of the reference on the score that the reference raises questions of a hypothetical or speculative nature
The assumption of every reference under article 143 has to be the continued existence of a context or conditions on the basis of which the question of law or fact arises or is likely to arise
The political life of a nation has but few eternal verities for which reason every aspect and fact of that life can justly be described as transient
But the possibility of a change even of a fundamental change cannot make the exercise of the Presidential jurisdiction under article 143 speculative or hypothetical
The stark facts are that Parliament has before it a Bill called the Special Courts Bill the Bill has been moved by a Private Member and that the Bill consists of ten clauses which provide for the trial of certain offences and offenders
There is no speculation about the present existence of the Bill and there is nothing hypothetical about its contents as they stand today
The Bill may undergo changes in the future but so may the Constitution itself including article 143 under which the President has made the reference to this Court
The former possibility cannot make the reference speculative or hypothetical any more than the latter possibility can make it so
The Special Courts Bill is there in flesh and blood for anyone to see and examine
That sustains the reference which is founded upon the satisfaction of the President that a question as regards the constitutional validity of the Bill is likely to arise and that the question is of such a nature and of such public importance that it is expedient to obtain the opinion of this Court upon it
Three references were made in the past under our Constitution in regard to a contemplated legislation and not in regard to a measure which had already become an Act
In the Estate Duty Case supra the Governor General had made a reference to the Federal Court under section 2131 of the Government of India Act 1935 which corresponds to article 1431 of the Constitution except that under the former provision the power of the Governor General to make a reference to the Federal Court was limited to questions of law
Sir Patrick Spens CJ delivering the majority opinion observed that the fact that the questions referred related to future legislation could not by itself be regarded as a valid objection to the reference particularly because section 213 empowered the Governor General to make a reference even when questions of law were likely to arise
The learned Chief Justice added that instances were brought to the notice of the Court in which references had been made under the corres 504 ponding provision in the Canadian Supreme Court Act when the matter was at the stage of a bill
In the Kerala Education Bill case supra a reference was made by the President under article 1431 of the Constitution regarding the validity of the provisions of a bill which was passed by the State Legislative Assembly but which had not become an Act since the Governor had reserved the bill for the consideration of the President
Das CJ who spoke for the majority Venkatarama Aiyar J dissented on another point relating to the validity of clause 20 of the bill referred approvingly to the view expressed by Sir Patrick Spens CJ in the Estate Duty Bill case supra and adopted his reasoning that the fact that reference was made at the stage of the bill was no impediment to the consideration by the Court of the questions referred to it for its opinion
In the Sea Customs Act Bill supra it was proposed to amend sub section 2 of section 20 of the and sub section 1A of section 3 of the 
The question referred by the President for the opinion of this Court under article 1431 was whether the proposed amendments will be inconsistent with the provisions of article 289 of the Constitution
In Canada the Governor General in Council referred a question to the Supreme Court of Canada under section 55 of the Supreme Court Act 1927 for considering the validity of a Bill which provided for abolition of appeals to the Privy Council and for vesting exclusive ultimate jurisdiction in the Supreme Court of Canada
Notwithstanding the fact that the bill was pending consideration before the Canadian Parliament when the reference was made the Supreme Court of Canada entertained and answered the reference
In appeal the Privy Council confirmed the majority judgment of the Supreme Court of Canada on merits of the reference
Neither the Canadian Supreme Court nor the Privy Council considered that the circumstance that the reference related to a bill and not to an Act affected the validity of the reference
The judgment of the Privy Council is reported in Attorney General for Ontario and others vs Attorney General for Canada and others1 There is another Canadian case which may be referred to as the Three Bills Case2 which is similar to the Kerala Education Bill3 case
Three bills which were passed by the Legislative Assembly of the province of Alberta were reserved by the Lieutenant Governor for the signification of the Governor General s pleasure
1 1947 AC127 2 1938 Canada Law Reports 100
3 1959 SCR 995 505 Doubts having arisen as to whether the legislature of the province of Alberta had legislative jurisdiction to enact the provisions of the bills the Governor General in Council made a reference to the Supreme Court of Canada on the question whether the bills were intra vires of the legislature of the province of Alberta
The fact that the Bills had not yet become Acts was not treated by the Canadian Supreme Court as affecting the validity of the reference
We will discuss in due course some of the other decisions cited by the interventionists who raised the preliminary objection to the maintainability of the reference
But we are unable to hold for reasons aforesaid that the reference is hypothetical or speculative in character and must therefore be returned unanswered
The second objection to the maintainability of the reference is that it is vague general and of an omnibus nature
The question referred by the President to this Court is Whether the Bill or any of the provisions thereof if enacted would be constitutionally invalid  It is true that the reference does not specify with particularity the ground or grounds on which the Bill or any of its provisions may be open to attack under the Constitution
It does not mention whether any doubt is entertained regarding the legislative competence of the Parliament to enact the Bill or whether it is apprehended that the Bill if enacted will violate any of the fundamental rights and if so which particular fundamental right or rights
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
Such a course virtually necessitates the adoption of a process of elimination with regard to all reasonably conceivable challenges under the Constitution
It is not expected of us while answering a reference under Article 143 to sit up and discover article by article
which provision of the Constitution is most likely to be invoked to assailing the validity of the Bill if it becomes a law
The Court should not be driven to imagine a challenge and save it or slay it on hypothetical considerations
As observed in Hamilton Street Railway Company1 speculative opinions on hypothetical questions are worthless and it is contrary to principle inconvenient and inexedient that opinions should be given upon such questions at all
1  529
14 978 SCI78 506 We were at one stage of the arguments so much exercised over the undefined breadth of the reference that we were considering seriously whether in the circumstances it was not advisable to return the reference unanswered
But 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 crystallise the issues which arise for our consideration
We propose to limit our opinion to the points specifically raised before us
It will be convenient to indicate at this stage what those points are The first point raised before us is whether Parliament had the legislative competence to enact the provisions contained in the Special Courts Bill
The second point raised before us is whether the Bill or any of its provisions violate the rights guaranteed by articles 14 and 21 of the Constitution
We propose to limit our opinion to these points
Relying upon the judgments of the Privy Council in Dominion of Canada1 and Regulation and Control of Aeronautics2 it was argued that the reference seeks the opinion of this Court on an abstract question and therefore we should decline to answer it
We are not disposed to agree with the submission that the question referred for our opinion though with and general is in any sense abstract
The question which is referred to us is as regards the constitutionality of the Bill or of any of its provisions
To the extent to which our opinion is sought on the constitutional validity of the Bill it is impossible to say that the question referred to us is of an abstract nature
In the former of the two cases cited above
the Privy Council found it inconvenient to determine in the reference proceedings as to what exactly fell within the ambit of the expression public harbour
It therefore characterised the question in regard thereto as abstract
It was impossible in the circumstances before the Privy Council to attempt an exhaustive definition of the expression public harbour which would be applicable to all cases since it was thought that such a definition was likely to prove misleading and dangerous
In the latter case the Privy Council appreciated the difficulty which the court must experience in endeavouring to answer questions of the kind which were framed for the opinion of the Supreme Court of Canada but all the same the questions were answered since they were not of a kind which it was not possible to answer satisfactorily
1  711
2  66
507 We hope that in future whenever a reference is made to this Court under article 143 of the Constitution care will be taken to frame specific questions for the opinion of the Court
Fortunately it has been possible in the instant reference to consider specific question as being comprehended within the terms of the reference but the risk that a vague and general reference may be returned unanswered is real and ought to engage the attention of those whose duty it is to frame the reference
Were the Bill not as short as it is it would have been difficult to infuse into the reference the comprehension of the two points mentioned by us above and which we propose to decide
A long Bill would have presented to us a rambling task in the absence of reference on specific points rendering it impossible to formulate succinctly the nature of constitutional challenge to the provisions of the Bill
The third contention betrays a total lack of awareness of the scheme of division of powers under our Constitution
The first limb of the argument under this head is that since the Parliament is seized of the Bill it is its exclusive function to decide upon the constitutionality of the provisions of the Bill
There are a few people here as elsewhere who contending against the powers of judicial review of legislation argue that it is the legislature which possesses and ought to possess the right to interpret the Constitution and that the legislative interpretation should not be open to attack in courts of law
But we are concerned not with fanciful theories based on personal predilections but with the scheme of our Constitution and the philosophy underlying it
Our federal or quasi federal Constitution provides by a copious written instrument for the setting up of a judiciary at the Union and State levels
Article 124 which occurs in Chapter IV of the Constitution called The Union Judiciary provides for the establishment of the Supreme Court of India
Its powers and functions as defined in article 322 article 129 articles 131 to 140 and in article 143 of the Constitution
Likewise article 214 provides subject to article 231 for the establishment of a High Court for each State
Article 226 confers powers on the High Courts to issue certain writs while article 227 confers upon them the power of superintendence over all courts subordinate to their appellate jurisdiction
These provisions show that the power of reviewing the constitutional validity of legislations is vested in the Supreme Court and the High Courts and in no other body
The British Parliament being supreme no question can arise in England as regards the validity of laws passed by it
The position under our Constitution is fundamentally different because the validity of laws passed by the Indian Legislatures has to be tested 508 having regard to the scheme of distribution of legislative powers and on the anvil of other constitutional limitations like those contained in article 13 of our Constitution
The right of the Indian judiciary to pronounce a legislation void if it conflicts with the Constitution is not merely a tacit assumption but is an express avowal of our Constitution
The principle is firmly and wisely embedded in our Constitution that the policy of law and the expediency of passing it are matters for the legislature to decide while interpretation of laws and questions regarding their validity fall within the exclusive advisory or adjudicatory functions of Courts
The function of courts in that be half is not The Great Usurpation  as some American critics of the power of judicial review called it after the American Supreme Court rendered its decision in Dred Scott1 in 1856
Rather
the true nature of that function is what President Lincoln described it We believe as much as Judge Douglas perhaps more in obedience to and respect for the judicial department of government
We think its decisions on constitutional questions when fully settled should control not only the particular cases decided but the general policy of the country subject to be disturbed only by amendments of the Constitution as provided in that instrument itself
More than this would be revolution but we think the Dred Scott decision is erroneous
We know the court that made it has often overruled its own decisions and we shall do what we can to have it overrule this
We offer no resistance to it
The second limb of the contention is that if we withdraw the question of validity of the Bill for our consideration while the Bill is pending consideration before the Parliament we will be encroaching upon the functions and privileges of the Parliament
In the first place
in dealing with the reference we are not withdrawing any matter from the seizin of the Parliament much less lifting the Bill from the Lok Sabha as was argued by one of the counsel
The President has made a reference to this Court in exercise of the powers conferred upon him by article 1431 and we are under a constitutional obligation to consider the reference and report thereon to the President as best as we may
Secondly it is difficult to appreciate which particular function or privilege of the Parliament is wittingly or unwittingly
encroached upon by our consideration of the constitutional validity of the Bill
As we have just said the question whether the provisions of the Bill suffer from any constitutional invalidity falls 1 15 Lawyers  Edition 691
509 within the legitimate domain of the courts to decide
Parliament can undoubtedly discuss and debate that question while the Bill is on the anvil but the ultimate decision on the validity of a law has to be of the court and not of the Parliament
Therefore we will not be encroaching upon any parliamentary privilege if we pronounce upon the validity of the Bill
We must also mention that though it was argued that the privileges of the Parliament are being encroached upon none of the counsel was able to specify which particular parliamentary privilege was involved in our consideration of the reference
May s Parliamentary Practice was not even mentioned
Article 1053 of the Constitution on which a passing reliance was placed provides that the powers privileges and immunities of each House of Parliament and of the members and the committees of each House shall be such as may from time to time be defined by Parliament by law and until so defined shall be those of the House of Commons of the Parliament of the United Kingdom and of its members and committees at the commencement of the Constitution
In the absence of any text or authority showing what are the privileges of the British Parliament in regard to the kind of matter before us it is impossible to hold that there is a violation of the Parliament s privileges
We also see no substance in the argument that there is any violation of the Parliament s powers under articles 1071 108 and 111 of the Constitution
The reference then is said to be a virtual abrogation of article 32 of the Constitution an argument which we find to be equally untenable
Article 321 confers a fundamental right on all persons to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III of the Constitution
That right is available to persons whose fundamental rights are encroached upon
In the proceeding before us the question is whether the bill which is pending before the Parliament contains provisions which are open to a constitutional challenge
If we hold that the Bill is valid the Parliament may proceed with it and we suppose that if we hold that the Bill is invalid the Parliament will not spend any time over passing a constitutionally invalid Bill
The proceeding under article 321 being of an entirely different nature from the proceeding contemplated by article 143 1 of the Constitution there is neither supplanting nor abrogation of article 32 if we pronounce upon the question referred to us by the President
Learned counsel for the interveners who oppose the reference urged as one of the planks of attack on the reference that it is futile 510 for us to consider the constitutional validity of the Bill because whatever view we may take it will still be open to the Parliament to discuss the Bill and to pass or not to pass it as it pleases
This argument proceeds upon an unrealistic basis its assumption being that the Parliament will not act in a fair and proper manner
True that nothing that we say in this opinion can deter the Parliament from proceeding with the Bill or dropping it
That is because no court will issue a writ or order restraining the Parliament from proceeding with the consideration of a bill pending before it
But we cannot assume what seems to us to be unfair to that august body that even if we hold that the Bill is unconstitutional the Parliament will proceed to pass it without removing the defects from which it is shown to suffer
Since the constitutionality of the Bill is a matter which falls within the exclusive domain of the courts we trust that the Parliament will not fail to take notice of the court s decision
We are also not disposed to accept the submission that the reference raises a purely political question
The policy of the Bill and the motive of the mover may be to ensure a speedy trial of person holding high public or political offices who are alleged to have committed certain crimes relating to the period of emergency
The President however has not asked us to advise him as to the desirability of passing the Bill or the soundness of the policy underlying it
Whether special courts should be established or not whether political offenders should be prosecuted or not and whether for their trial a speedy remedy should be provided or not are all matters which may be said to be of a political nature since they concern the wisdom and policy underlying the Bill
But the question whether the Bill or any of its provisions are constitutionally invalid is not a question of political nature which we should restrain ourselves from answering
the question referred by the President for our opinion raises purely legal and constitutional issues which is our right and function to decide
The last submission which requires consideration the 7th is that considering the repercussions of the exercise of advisory jurisdiction we should in the interest of expediency and propriety refuse to answer the reference
The dissenting opinion of Zafrulla Khan J in Estate Duty Bill1 contains as scatching a criticism of reference jurisdiction as can possibly be imagined
The learned Judge has referred to the history of advisory jurisdiction the laws of various countries which provide for advisory jurisdiction the approach of the courts of those countries to matters concerning advisory jurisdiction the opinion of 1  322
511 eminent writers like Prof Felix Frankfurter who later became a judge of the American Supreme Court and Prof Carleton Kemp Allen and to various decisions of the Privy Council and the House of Lords In short every possible criticism which can be made against the exercise of advisory jurisdiction has been noticed and made by Zafrulla Khan J in his dissenting opinion
But after referring to texts and authorities the leaned Judge observed that in spite of all that the British Parliament had before it it thought it wise to incorporate section 213 in the Government of India Act 1935
Eventually the learned Judge held that if the proposal was cast in a form which does not give rise to difficulties the court might find it possible to pronounce upon it and added that one precaution which might be taken in that behalf was to attach to the reference a draft of the bill which was proposed to be placed before the legislature
Since the bill on which the Governor General had made the reference to the Federal Court was a fiscal measure the learned Judge thought that attaching a copy of the bill to the reference was indispensable and in the absence of the bill it was not possible to answer the reference
The ultimate conclusion to which the learned Judge came was that in the State of the material made available to the court no useful purpose could be served by attempting to answer the questions referred to the court
We have pointed out during the course of our discussion of the various facets of the preliminary objection that since the question referred for our opinion by the President raises a purely constitutional issue and since it is possible to limit the consideration of the reference the two points mentioned by us it is neither difficult nor inexpedient to answer the reference
The difficulty pointed out by Zafrulla Khan T in Estate Duty Bill  has been removed in this reference by supplying to us a copy of the Special Courts Bill which is annexed to the reference
It is no answer then that the Bill might eventually emerge from the legislature in a shape very different from that in which it has been considered by us
As observed by Zafrulla Khan J page 343 in such a case the opinion of the court will always be read with reference to the proposal placed before it and there will be no danger of its being read with reference to the form which the legislation finally takes
We will only add that the Constituent Assembly having thought fit to enact article 143 of the Constitution it is not for us to refuse to answer the reference on the ground that it is generally inexpedient to exercise the advisory jurisdiction
The argument relating to the inexpediency of advisory jurisdiction was known to the eminent architects of the Constitution and must be deemed to have been considered and rejected by them
The difficulty of answering a reference in a 1  322
512 given case by reason of the defective frame of questions msufficiency of data or the like is quite another matter which as we have indicated presents no insurmountable difficulty in this reference
We do not consider it necessary to discuss the American decisions like Baker vs Carr1 and Powell vs McCormack2 which were cited in support of the argument that the Court ought not to answer hypothetical questions
We have already disposed of that contention by pointing out that there is nothing hypothetical or speculative about the reference made by the President in this case
But apart from that the American decision have no application because of three main considerations the American Constitution  does not contain any provision under which the President can make a reference to the American Supreme Court for obtaining its opinion
Secondly there is a rigid separation of powers under the American Constitution and thirdly article III section 21 of the American Constitution provides that the judicial power of the United States which by section1 1 of that article is vested in the Supreme Court shall extend to all cases and to controversies to which the United States shall be a party to controversies between two or more States between a State and citizens of another State between citizens of different States and between a State or the citizens thereof and foreign States citizens or subjects
In matter arising under the advisory jurisdiction where there is no lis property so called there is neither a case nor a controversy between party and party
That is why the American Supreme Court has taken the view that The rule that the United States Supreme Court lacks appellate jurisdiction to consider the merits of a moot case is a branch of the constitutional command that the judicial power extends only to cases or controversies a case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome 3 That disposes of the preliminary objection to the maintainability of the reference
For reasons above mentioned we over rule that objection and proceed to answer the reference limiting our opinion to the two points mentioned earlier
Out of the two principal questions which we propose to consider in this reference the first pertains to the legislative competence of the Parliament to enact certain provisions of the Bill
The main argument on legislative competence was made by Shri Shiv Shankar who appears 1  2  3  491 493 513 on behalf of the State of Andhra Pradesh
Since the contentions of A the other counsel on that question only highlight different facets of that argument it will be enough to sit out and deal with the main argument
The attack on Parliament s power to legislate on matters contained in the Bill raises three issues  I  Has the Parliament legislative competence to provide for the creation of Special Courts as enacted by 1 clause 2 of the Bill  2 was the Parliament legislative competence to confer appellate powers on the Supreme Court from judgments and orders of Special Courts as provided in clause 101 of the Bill  and 3 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  To recapitulate briefly clause 2 of the Bill provides that the Central Government shall by notification create adequate number of courts to be called Special Courts
Clause 101 of the Bill provides that notwithstanding anything contained in the Code of Criminal Procedure 1973 an appeal shall lie as of right from any judgment or order of the Special Court to the Supreme Court both on fact and on law
By clause 6 of the Bill 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 itself pending in any court of appeal or revision the same shall stand transferred for disposal to the Supreme Court
Shri Shiv Shanker s argument runs thus a Articles 124 to 147 which occur in Chapter lV Part V of the Constitution called The Union Judiciary contain an exhaustive enumeration of the class of matters over which the Supreme Court possesses or may be empowered to exercise jurisdiction
Article 131 confers original jurisdiction on the Supreme Court in certain matters articles 132 133 and t34 confer appellate powers upon it in civil criminal and other proceedings article 135 saves its jurisdiction and powers until Parliament by law otherwise provides with respect to any matter to which the provisions of articles 133 and 134 do not apply if jurisdiction and powers in relation to that matter were exercisable by the Federal Court immediately before the commencement of the Constitution under any existing law article 136 empowers it to grant in its discretion 514 special leave to appeal from any judgment decree determination sentence or order in any cause or matter passed or made by any court or tribunal in India other than a court or tribunal constituted by or under any law relating to the Armed Forces article 137 confers upon it the power to review any judgment pronounced or order made by it article 139A confers upon it the power in certain circumstances to withdraw cases pending before the High Court for its own decision article 1422 confers upon it the power inter alia in regard to investigation or punishment of any contempt of itself and finally article 143 confers upon it advisory jurisdiction in matters mentioned therein
The jurisdiction of the Supreme Court whether appellate or of any other kind cannot be extended to matters other than those expressly enumerated in these articles
Clause 10 of the Bill which confers appellate power on the Supreme Court from judgments and orders of Special Courts is therefore unconstitutional
Chapter IV Part V empowers the Parliament by various articles to pass laws for the purpose of confer ring further jurisdiction on the Supreme Court in addition to that conferred upon it expressly by the other provisions of that Chapter
For example article 1333 provides that notwithstanding anything contained in the article no appeal shall lie to the Supreme Court from the judgment decree or final order of one Judge of a High Courtin a civil proceeding unless Parliament by law otherwise provides
The Parliament thus is given the power to pass a law providing that in civil proceedings an appeal shall lie to the Supreme Court from the judgment decree or final order of one Judge of a High Court
Article 1342 empowers the Parliament to confer by law on the Supreme Court any further powers than those conferred by clause 1 of the article to entertain and hear appeals from any judgment final order or sentence in a criminal proceeding of a High Court subject to such conditions and limitations as may be specified in such law
By article 1381 the II Supreme Court shall have such further Jurisdiction and powers with respect to any of the matters in the union List as Parliament may by law confer
By 515 article 1382 the Supreme Court can exercise such A further jurisdiction and powers with respect to any matter as the Government of India and the Government of any State may by special agreement confer if Parliament by law provides for the exercise of such jurisdiction and powers by the Supreme Court
Article 139 empowers the Parliament by law to confer on the Supreme Court power to issue directions orders or writs for any purposes other than those mentioned in article 322
Under article 140 Parliament may make a law for conferring upon the Supreme Court such supplemental powers not inconsistent with any of the provisions of the Constitution as may appear to be necessary or desirable for the purpose of enabling the Court more effectively to exercise the jurisdiction conferred upon it by or under the Constitution
These provisions being exhaustive of the cases and circumstances in which additional powers or jurisdiction may be conferred on the Supreme Court Parliament has no competence to pass a law confer ring upon the Supreme Court appellate powers against the judgments and orders of Special Courts which is a matter neither envisaged nor covered by any of the aforesaid provisions of Chapter IV
Clause l O of the Bill is therefore beyond the legislative power of the Parliament to enact
c Though Parliament has the power and exclusively to legislate on matters enumerated in List I that power as provided in article 2451 is subject to the provisions of the Constitution
Accordingly the power of Parliament to legislate on matters mentioned for example in entry 77 of List I Constitution organisation jurisdiction and powers of the Supreme Court   entry 95  jurisdiction and powers of all courts except the Supreme Court with respect to any of the matters in List I   and entry 97 any other matter not enumerated in List II or List III   has to be exercised consistently with and subject to the other provisions of the Constitution
The law made by the Parliament by virtue of its power to legislate on matters enumerated in Lists I and III will not be valid if it contravenes any other 516 provision of the Constitution apart from the provisions of Part III on Fundamental Rights
d Considering the width of the provisions contained in article 1361 it might have been open to the Parliament to provide that the Supreme Court may in its discretion grant special leave to appeal from any judgment or order of the Special Court
But since the outer limits of the Supreme Court s powers are exhaustively dealt with in that article and in the other articles which occur in Chapter IV Part V of the Constitution Parliament cannot confer upon my person the right to file an appeal to the Supreme Court from judgments or orders of Special Courts
e By parity of reasoning the provision contained in clause 6 of the Bill for the transfer of pending appeals and revisions to the Supreme Court is ultra vires the provisions of Chapter IV Part V of the Constitution
The constitutional scheme contained exhaustively in Chapter IV does not contemplate the exercise of revisional jurisdiction by the Supreme Court anl there fore the conferment of that jurisdiction by clause 6 is beyond the Parliament s competence
If revisions transferred to the Supreme Court are considered as falling within the special jurisdiction of the Supreme Court under article 1361 clause 6 of the Bill will offend against the provisions of that article because the pre requisite for the exercise of the jurisdiction under that article is the grant of special leave by the Supreme Court
The main plank of the reply of the learned Attorney General and the learned Solicitor General in answer to these contentions is that the provisions of Chapter IV Part V of the Constitution are not exhaustive of the class of matters in which the Supreme Court possesses jurisdiction or in which the Parliament by law can confer jurisdiction upon it
The provisions of Chapter IV it is argued cannot override the power conferred by the Constitution on the Parliament to legislate on matters which fall within Lists I and III of the Seventh Schedule
That is to say Chapter I of Part XI of the Constitution which deals with Distribution of Legislative Powers  must be permitted to have its full sway and nothing containing in Chapter lV Part V can be construed as derogating from that power
No implications can arise from the provisions of that Chapter so as to nullify the legislative competence 517 the Parliament to legislate on matters which fall within the Union h and the Concurrent Lists
Therefore it is argued Parliament s power by to enlarge the jurisdiction of the Supreme Court quantitatively and qualitatively is unquestionable so long as the law creating or conferring that jurisdiction is with respect to matters enumerated in l in I or List III
Learned counsel rely on the provisions of article 1381 and article 2461 and on entries 77 and 97 of List I for sustaining the Parliament s power to enact clauses 6 and 101 of the Bill
As regards the power to enact clause 2 reliance is placed on entry 11A of list III as supporting Parliament s competence to provide for the creation of Special Courts
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 2462 Parliament has clearly the power to ma1e laws with respect to the constitution and organisation that is to say the creation and setting up of Special Courts
Clause 2 of the n Bill is therefore within the competence of the Parliament to enact
The field of legislation covered by entry 11A of List III was originally a part of entry 3 of List II
By section 57b iii of the 42nd Amendment Act 1976 which came into force on January 3 1977 that part was omitted from entry 3 List II and by clause c of section 57 it was inserted into list III as item 11A
This transposition has lel to the argument that the particular amendment introduced by section 57b iii and c is invalid since it destroys a basic feature of the Constitution as originally enacted namely federalism
We are unable to appreciate how the conferment of concurrent power on the Parliament in place of the exclusive power of the States with respect to the constitution and organisation of certain courts affects the principle of federalism in the form in which our Constitution has accepted and adopted it
But assuming for the sake of argument that vesting of such power in the States was a basic feature of the Constitution we hare to take the Constitution as we find it for the purposes of this reference
The plainest implication of the question referred to us by the President is whether on the basis of the existing constitutional provisions the Bill or any of its provisions
if enacted would be invalid We cannot therefore entertain any argument in this proceeding that a constitutional provision introduced by an amendment of the Constitution is invalid
Having seen that the Parliament has legislative competence to create Special Courts the next branch of the argument which falls falls consideration is whether it is competent to the Parliament to confer 518 appellate jurisdiction on the Supreme Court so as to enable or require it to hear appeals from judgments and orders of Special Courts
The argument put in another form is that it is not competent to the Parliament to confer upon a litigant the right of right an appeal to the Supreme Court from the judgment or order of a Special Court
the provision for appeal it is contended might at the highest have been made subject to the pre condition of the grant of special leave to appeal by the Supreme Court as under article 136 of the Constitution 
The very foundation of this argument is fallacious
The argument 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 especial when it seeks its justification from a more implication arising out of the fasciculus Or articles contained in Chapter IV
The Constitution does not pro vide that notwithstanding anything contained in article 2461 and2 the Parliament shall have no power or competence to enlarge the jurisdiction of the Supreme Court quantitatively or qualitatively except in accordance with and to the extent to which it is permissible to it to do so under any of the provisions of Chapter IV Part V
The provisions of that Chapter must therefore be read in harmony and con junction with the other provisions of the Constitution and not in derogation thereof
A pertinent question was posed by Shri Shiv Shanker or this aspect of the matter
He asked If Parliament is to be conccded the power to enlarge the jurisdiction of the Supreme Court in the manner impugned herein what was the object and purpose behind provisions like those contained in articles 1333 134f2 1381  138  139 and article 140 What these articles empower the Parliament to do could with equal competence and validity have been done by the Parliament in the exercise of its powers under article 2461 and 2
The reason why according to the learned counsel the framers of the Constitution thought it necessary to incorporate special provisions in the Constitution empowering or enabling the Parliament to pass laws in respect of the Supreme Court s jurisdiction was to limit its powers 519 in that behalf to specific matters and circumstances mentioned expressly in those special provisions
In other words the contention is that specific provisions of the Constitution under which the jurisdiction of the Supreme Court can be enlarged must override the general provisions under which Parliament can pass laws in respect of matters enumerated in Lists I and III of the Seventh Schedule We consider it impossible to accept the argument that the conferment of power to pass laws on specific matters limits the Parliament s power to pass laws to those matters only and takes away its power to pass laws on matters which are otherwise within its legislative competence
The language of article 2461 and 2 is clear and explicit and admits of no doubt or difficulty
It must therefore be given its due effect
In the first place therefore no implication can be read into the provisions of Chapter IV Part V of the Constitution which their language does not warrant and secondly the attempt has to be to harmonize the various provisions Or the Constitution and not to treat any part of it as otiose or superfluous
Some amount of repetitiveness or overlapping is inevitable in a Constitution like ours which unlike the American Constitution is drawn elaborately and r runs into minute details
There is therefore all the greater reason why while construing our constitution care must be taken to see that powers conferred by its different provisions are permitted their full play and any one provision is not by construction treated as nullifying the existence and effect of another
Indeed
is it be correct that the specific powers conferred by some of the articles in Chapter IV Part V are exhaustive of matters in which Parliament can confer jurisdiction on the Supreme Court it was wholly inappropriate and unnecessary to provide by article 1381 that the Supreme Court shall have such further jurisdiction and powers with respect to any of the matters in the Union List as Parliament may by law confer
this article is relied upon heavily as showing that if even without it it was competent to the Parliament by virtue of its power under article 2461 and 2 to enlarge the Supreme Court s jurisdiction no purpose could be served and nothing gained by enacting that article
The answer to this contention is two fold as indicated above
Besides the object of article 1381 is to further enlarge the Parliament s power to confer jurisdiction on the Supreme Court even in matters already dealt with specifically in Chapter IV Part V
For example article 1362 provides that nothing in clause I shall apply to any judgment determination sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces
But by virtue of article 1381 read with entry 2 and entry 93 of List I it may be competent to the 520 Parliament to remove the fetter on the Supreme Court s jurisdiction to grant special leave and extend that jurisdiction to the judgment determination sentence or order passed or made by any court or tribunal constituted by ar under any law relating to the Armed Forces
Likewise acting under article 138 1 the Parliament may enlarge the n original jurisdiction conferred upon the Supreme Court by article 131
Even assuming that article 1381 may not have been intended to achieve any purpose as aforesaid its object could at least be to empower the Parliament to confer any special kind of jurisdiction and powers on the Supreme Court with respect to a matter in the Union List
If the argument regarding the exhaustiveness of the provisions contained in Chapter IV Part V were correct by parity of reason not it will be in competent to the Parliament to pass a law in respect of matter mentioned in entry 72 of List I Election to the offices of President and Vice President  by reason of the fact that article 71 of the Constitution empowers the Parliament specifically to regulate by law any matter relating to or connected with the election of a President or Vice President including the grounds on which such election may be questioned
Article 71 as indeed many other articles shows that there are overlapping provisions in our Constitution
The Parliament therefore has the competence to pass laws in respect of matters enumerated in Lists I and III notwithstanding the fact that by such laws the jurisdiction of the Supreme Court is enlarged in a manner not contemplated by or beyond what is contemplated by the various articles in Chapter IV Part V Preventive detention for example is the subject matter of entry 3 in List III
As _contended by Shri Ram Jethmalari it is competent to the Parliament to legislate upon that topic by virtue of its powers under article 2462 and also to provide by virtue of its powers under article 246 1 read with entry 77 of List I that an appeal shall lie to the Supreme Court from an order of detention passed under a law of preventive detention
What now remains to be seen is whether there is any entry in list I or List III of the Seventh Schedule which covers the subject matter of the jurisdiction of the Supreme Court so that Parliament can have the competence to pass a law with respect to that matter
This question hardly presents any difficulty
Entry 77 of List I reads thus Constitution organisation jurisdiction and powers of the Supreme Court including contempt of such Court and the fees taken therein persons entitled to practise before the Supreme Court
521 Once the argument regarding the exhaustiveness of the provisions A 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 Code of Criminal Procedure 1973 an appeal shall lie a of right from any judgment or order of 2 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
Entry 77 of List I presents as contended by the learned Attorney General a striking contrast with entry 95 of List I entry 65 of List II and entry 46 of List III
The operation of the three last mentioned entries is expressly limited by a qualifying clause which limits the field of legislation to the matters mentioned in the particular list in which the entry appears
Entry 95 of List I relates to jurisdiction and powers of all courts except the Supreme Court with respect to any of the matters in this List
Entry 65 of List II relates to jurisdiction and powers of all courts except the Supreme Court with respect to any of the matters in this List Entry 46 of List III relates to jurisdiction and powers of all courts except the Supreme Court with respect to any of the matters in this List 
A reference may also be made m passing to article 323B to which Shri Ram Jethmalani drew our attention which provides that the appropriate Legislature may by law provide for the adjudication or trial by tribunals of any disputes complaints or offences with respect to all or any of the matters specified in clause 2 with respect to which such Legislature has power to make laws
Entry 77 of List I stands out in its uniqueness amongst cognate entries in the legislative Lists by its wide and unqualified language
The field of legislation covered by it is not circumscribed by the qualification with respect to any of the matters in this List that is List 5
This contrast emphasises that the power of the Parliament to legislate with respect to a matter contained in entry 77 which in the instant case is jurisdiction and powers of the Supreme Court can be exercised without reference to any of the matters contained in List I or in any other List
There can be no justification to revert to the argument already disposed of by us f curtailing the amplitude of the Parliament s power in relation to the subject matter of entry 77 by reason of anything contained in Chapter IV Part V
The problem is of a twin variety and has two interlaced facets
If there is power in the parliament to establish a new court as undoubtedly there is by virtue of article 2462 read with entry 11A of List III 15 9 78SCI78 522 it would be strange that the Parliament should not possess the whole some power to provide for an appeal to the Supreme Court from the decision of that Court
Loopholes and lacunae can conceivably exist in any law or Constitution but as pointed out by us above our Constitution has not only provided for the power to create new Courts but it has taken care to confer upon the Parliament the power to provide that an appeal shall lie from the decision of such court directly to the Supreme Court
In the exercise of its power to establish a new Court Parliament may by reasons of exigency consider it necessary to create a Court which does not conform to an established pattern in the hierarchy of existing courts
The status of the newly created Court may by such by reason of its composition or the nature of matters which may come before it that an appeal can justly be provided from its judgment and orders to the Supreme Court only
That explains the justification for the amplitude of the legislative field covered by entry 77 List I 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 Code of Criminal Procedure 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 101
In view of our conclusion that Parliament has the legislative competence to enact clauses 6 and 101 of the Bill it is unnecessary to consider the argument of the learned Solicitor General that everything else failing
Parliament would have the competence to legislate upon the jurisdiction and powers of the Supreme Court by virtue of article 2481 read with entry 97 of List I
The residuary power of legislation can be resorted to only if any particular matter on which it is proposed to legislate is not enumerated in the Concurrent or State List
To sum up we are of the opinion that clauses 2 6 and 101 of the Bill are within the legislative competence of the Parliament
That to say Parliament has the competence to provide for the creation 523 of Special Courts as clause 2 of the Bill provides to empower the A supreme Court to dispose of pending appeals and revisions as provided for by clause 6 of the Bill and to confer jurisdiction on the Supreme Court by providing as is done by clause 101 that 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
Though the Parliament s legislative competence to create Special Courts for the purpose in the instant case of trying criminal cases cannot be denied for reasons set out above it is necessary to advert to an offshoot of the argument to the effect that in any event Parliament has no power to create a court outside the hierarchy of Courts recognized by the Constitution
It was suggested during the course of arguments on the question of legislative competence that the Constitution contains a complete code of judicial system which provides for the Supreme Court at the apex and for the High Courts the District Courts and subordinate courts next in order of priority
Article 124 provides that there shall be a Supreme Court of India article 214 that there shall be a High Court for each State article 2311 that Parliament may by law establish a common High Court for two or more States or for two or more States and a union territory while Chapter VI of Part VI of the Constitution provides by articles 233  234 for the District Courts and courts subordinate thereto
To complete the picture article 236 a defines a district judge to include the judge of a city civil court additional district judge joint district judge assistant district judge chief judge of a small cause court chief presidency magistrate additional chief presidency magistrate
sessions judge additional sessions judge and assistant sessions judge
Finally article 237 empowers the Governor to apply the provisions of chapter VI and any rules made thereunder to any class or classes of magistrates
The Constitution having provided so completely and copiously for a hierarchy of Courts
it is urged that it is impermissible to the Parliament to create a court or a class of courts which does not fall within or fit in that scheme
An important limb of this argument which requires serious consideration is that the creation of a trial court which is not subject to the control and superintendence of the High Court is detrimental to the Constitutional concept of judicial independence particularly when the Bill empowers the Central Government by clause 5 to designate the Special Court in which a prosecution shall be instituted or to which a pending prosecution shall be transferred
We are unable to accept this argument
What is important in the first place is to inquire whether the Parliament has legislative competence 524 to create Special Courts
If it has the next question is whether there is anything in the Constitution which limits that power to the setting up of yet another Court of the same kind and designation provided for in the Constitution s hierarchical system of courts
We see nothing in the Constitution which will justify the imposition of such a limitation on the Parliament s power to create Special Courts
Indeed the argument partakes of the same character as the one that no greater or different powers can be conferred on the Supreme Court than are to be found of provided for in chapter IV part V of the Constitution
The implications of the Constitution ought not to be stretched so far and wide as to negate the exercise of powers which have been expressly and advisedly conferred on the Parliament
The words of entry 11A of the Concurrent List which relates to Administration of Jutice constitution and organisation of all courts except the Supreme Court and the High Court are sufficiently wide in their amplitude to enable the Parliament not merely to set up Courts of the same kind and designation as are referred to in the provisions noticed above but to constitute and organize that is to say create new or Special Courts subject to the limitation mentioned in the entry as regards the Supreme Court and the High Courts
It is true that the Special Courts created by the Bill will not have the Constitutional status which High Courts have because such courts
are not High Courts as envisaged by the Constitution
Indeed there can but be one High Court only for each State though two or more States or two or more States and a union territory can have a common High Court
It is also true to say that the Special Courts are not District Courts within the meaning of article 235 with the result that the control over them will not be vested in any High Court
But we do not accept that by reason of these considerations the creation of Special Courts is calculated to damage or destroy the constitutional safeguards of judicial independence
Our reasons for this view will become clearer after we deal with the questions arising under articles 14 and 21 but suffice it to say at this stage that the provision in clause 10 1 of the Bill for an appeal to the Supreme Court from every judgment and order of a Special Court and the provision for transfer of a case from one Special Court to another which the Bill does not contain but without which as we will show the Bill will be invalid are or will be enough to ensure the independence of Special Courts
Coupled with that will be the consideration as we will in course of our judgment point out that only sitting judges of the High Courts shall have to be appointed to the Special Courts
A sitting judge of the High Court though appointed to the Special 525 Court will carry with him his constitutional status rights privileges and obligations
There is no reason to apprehend that the mere change of venue will affect his sense of independence or lay him open to the influence of the executive
One may also not be unmindful of the benign presence of article 226 of the Constitution which may n appropriate cases be invoked to ensure justice
Equally important as the Parliament s legislative competence to enact these provisions and of greater social significance is the question whether the Bill violates the guarantee of equality contained in article 14 of the constitution
That article provides The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India
Several objections from sublime to not so sublime have been taken against the provisions of the Bill in the context of article 14
But broadly that challenge is directed against the validity of the classification which the Bill makes and the lack of relationship between the basis of that classification and the object of the Bill
The Bill it is further contended creates administrative tribunals for trying offences which is against the basic tenet of the guarantee of equality
The Bill leaves it open to the executive to discriminate between persons situated similarly by picking and choosing some of them for being tried by the Special Courts leaving others to be tried by the regular hierarchy of courts
The procedure prescribed by the Bill for trial before the Special Courts is alleged to be onerous in comparison with the procedure which ordinary courts generally adopt subjecting thereby a class of persons left to be chosen by the executive with an evil eye to hostile and unfavourable treatment
The Bill it is contended furnishes no guidance for making the declaration under section 41 for deciding who and for what reasons should be sent up for trial to the Special Courts and such guidelines as it purports to lay down are vague and indefinite
These arguments are met by the learned Attorney General the learned Solicitor General the various Advocates General and Shri Ram Jethmalani by pointing out that the Bill is not by any manner an instance of class legislation that it provides for making a classification with reference to the nature of the offences the public position occupied by the offenders and the extraordinary period during which the offences are alleged to have been committed that the provisions f the Bill and the recitals of the preamble provide sufficient and 526 definite guidance for making the requisite declaration for deciding who should be sent up for trial to the Special Courts that in the context the Bill does not vest arbitrary or uncanalised power in the Government to pick and choose persons for being tried by Special Courts that the procedure prescribed by the Bill for trial before the Special Courts
far from being more onerous than the ordinary procedure is in certain important respects more beneficial to the accused and since in any event the procedure of the Special Courts is not more onerous than the ordinary procedure the provisions of the Bill involve no discrimination violative of article 14
A brief resume of the decisions of this court bearing on laws which provided for the creation of special courts will facilitate a clearer perception of the true position and a better appreciation of the points for and against the Bill
The written brief of the Union Government contains a pithy account of Special Courts from which it would appear that such courts were set up during the British regime on a number of occasions moire especially under what may broadly be termed as Security laws like the Rowlatt Act 1919 the Bengal Provincial Law Amendment Act 1925 the Sholapur Martial Law Ordinance 1930 the Bengal Criminal Law Amendment Acts 1930 and 1932 the Bihar Maintenance of Public Order Act the Bombay Public Safety Measures Act 1947 the CP and Berar Public Safety Act and the UP Maintenance of Public Order Act
These laws were draconian in nature and were characterised by a denial of the substance of a fair trial to those who had the misfortune to fall within the sweep of the truncated procedure prescribed by them
They provided a summary procedure for deprivation of the right to life and liberty without affording to the aggrieved person the opportunity to carry an appeal to the High Court for a dispassionate examination of his contentions
Special Courts were set up under these laws mostly to suppress the freedom movement in India
They were not set up purportedly to save a democracy in peril
Therefore they inevitably acquired a sinister significance and odour
After the advent of independence and the enactment of our Constitution Special Courts were set up under various laws to deal with threats to public order and to prevent corruption amongst public servants
In the years following upon the inauguration of the Constitution in 1950 this Court had to consider the validity of laws under which various State Governments were empowered by the State Legislatures to set up Special Courts for the trial of such offences or classes of offences or cases or classes of cases as the State Governments may by general or special order in writing direct
The earliest 527 case after the Constitution came into force which refers to the setting up of special Tribunals is Janardan Reddy  Others vs State of Hyderabad  Others1 in which the Military Governor of Hyderabad by virtue of the powers delegated to him by the Nizam constituted Special Tribunals which consisted of three members appointed by him for trying offences referred to them by the Governor by a general or special order
But the decision in that case turned on the question whether the judgment of the Hyderabad High Court which was pronounced before January 26 1950 and which had acquired a finality could be reopened before the Supreme Court under the provisions of the Constitution
That question was answered in the negative and no argument arose or was made regarding the violation of article 14
The contention that the special procedure prescribed for trial before Special Courts violated the guarantee of equality conferred by article 14 was raised specifically and was considered by this Court in The State of West Bengal vs Anwar Ali Sarkar 2 Kathi Raning Rawat vs The State of Saurashtra3 Lachmandas Kewalram Ahuja  Anr
vs The State of Bombay4 Syed Qasim Razvi vs The State of Hyderabad  Ors5 Habeeb Mohamed vs The State of Hyderabad6 Rao Shiv Bahadur Singh  Anr
vs The State of Vindhya Pradesh7 Kedar Nath Bajoria vs The State of West Bengal8 and Asgarali Naizarali Singaporawalla vs The State of Bombay 9 the procedure prescribed by the various laws in these cases was almost without exception held to be discriminatory about which no serious dispute could reasonably be raised
Since the special procedure was more harsh and onerous than the ordinary procedure prescribed for the trial of offences the further question which this Court was required to consider was whether the classification permissible under the particular laws was valid
If the classification was valid persons who were grouped together and who were distinguished from others who were left out of the group on an intelligible differentia could legitimately be tried by a different procedure even if it was more onerous provided the differentia had a rational relation to the object sought to be achieved by the statute in question
1  2  3  4  5 6  7  8  9  528 In Anwar Ali Sarkar supra it was held by the majority that section 51 of the West Bengal Special Courts Act 1950 was wholly void since it conferred arbitrary powers on the Government to classify offences or cases at its pleasure and the Act did not lay down any policy or guidelines for the exercise by the Government of R its discretion to classify cases or offences
It may be mentioned that the Act was a verbatim copy of the Ordinance which was framed before the Constitution had come into force and as observed by Fazal Ali J 
page 308 article 14 could not have been present to the minds of those framed the Ordnance
As regards the reference in the preamble to the necessity for speedier trial of offences it was held that even if the words of the preamble were read into section 51 the expression speedier trial was too vague uncertain and elusive to afford a basis for rational classification
Das J held the section to be partially void in so far as it empowered the Government to direct cases as distinguished from classes of cases to be tried by a Special Court
According to the learned Judge the provision for speedier trial of certain offences was the object of the Act which was a distinct thing from the intelligible differentia which had to be the basis for the classification
The differentia and the object being different elements the object by itself could not be the basis for classification of offences or cases
Speedier trial was indeed desirable in the disposal of all cases or classes of offences or classes of cases
Patanjali Sastri CJ in his dissenting judgment upheld the validity of the entire section on the view that it was impossible to say that the State Government had acted arbitrarily or with a discriminatory intention in referring the cases to the Special Court since there were special features which marked off the particular group of cases as requiring speedier disposal than was possible under the ordinary procedure
Kathi Raning Rawatsupra was decided by the same bench as Anwar Ali Sarkar
The two cases were heard partly together but the former was adjourned to enable the State Government to file an affidavit explaining the circumstances which led to the passing of the particular Ordinance
Section 11 of the Saurashtra State Public Safety Measures Third Amendment Ordinance 1949 which was impugned in Kathi Raning Rawat supra was similar to section 51 of the West Bengal Special Courts Act 1950
It referred to tour distinct categories namely offences classes of offences cases and classes of cases and empowered the State Government to direct any one or more of these categories to be tried by the Special Court constituted under the Ordinance
It was held by the majority 529 that the preamble to the Ordinance which referred to the need to provide for public safety maintenance of public order and the preservation of peace and tranquillity in the State of Saurashtra together with the affidavit filed by the State Government explaining the circumstances under which the impugned order was passed afforded a basis for distinguishing the case from Anwar Ali Sarkarsupra since it was clear that the Government had sufficient guidance for classifying offences classes of offences or classes of cases for being tried by the Special Procedure
Therefore according to the majority Section 11 of the Ordinance in so far as it authorized the State Government to direct offences classes of offences or classes of cases to be tried by the Special Court was not violative of article 14 and the notification which was issued under that part of the Ordinance was not invalid or ultra vires Mukherjee J and Das J who delivered two out of the four majority judgments pointed out the distinction between the notification issued in Anwar Ali Sarkarsupra and that issued in Kathi Raning Rawatsupra see pages 454 455 and page 470
Whereas the former was issued under that part of section 51 of the West Bengal Special Courts Act which authorized the State Government to direct particular cases to be tried by the Special Court the latter was issued under that part of section 11 of the Saurashtra Ordinance which authorized the State Government to direct offences classes of offences or classes of cases to be tried by the Special Court
In Lachmandas Ahujasupra a Bank dacoity case was referred for trial to a Special Judge by the Bombay Government under section 12 of the Bombay Public Safety Measures Act 1947 which was precisely in the same terms as section 51 of the West Bengal Act and section 11 of the Saurashtra Ordinance
The question was squarely covered by the ratio of the decisions in Anwar Ali Sarkar and Kathi Raning Rawat supra by the application of which the majority held that on a parity of reasoning section 12 was unconstitutional to the extent to which it authorized the Government to direct particular cases to be tried by a Special Judge
Patanjali Sastri 1  C J did not differ from the majority on this aspect of the matter
He held that granting that the particular part of section 12 was discriminatory in view of the decision in Anwar Ali Sarkarsupra the trial which had already started could not be vitiated by the Constitution coming into force subsequently
Indeed the learned Attorney General who appeared for the State of Bombay II did not controvert the legal position regarding the invalidity of the relevant part of section 12
530 IN Syed Qasim Razvi Habeeb Mohamed and Rao Shiv Bahadur Singhsupra the trials had commenced prior to the date when the constitution came into force
It was held by the majority in the first of these cases and by a unanimous Court in the other two that article 13 of the Constitution had no retrospective effect that a pre Constitution law must be held to be valid for all past transactions l and therefore the Special Tribunal or Special Court had validly taken cognizance of the cases before them
What remained of the trial after the Constitution came into force was held not to deviate from the normal standard in material respects so as to amount to a denial of the equal protection of laws within the meaning of article 14
In Kedar Nath Bajoria supra the case of the appellant and two others was allotted by the State Government to the Special Court which was constituted by the Government under section 3 of the West Bengal Criminal Law Amendment Act 1949
The trial commenced on January 3 1950 and nine prosecution witnesses were examined in chief before January 26 when the Constitution came into force
The order of conviction was recorded by the Special Court on August 29 1950 under sections 120B and 420 of the Penal Code and section 52 of the Preventive Corruption Act 1947
The appellants  contention that section 4 of the Act under which the State Government had allotted their case to the Special Court violated article 14 by the application of the ratio in Anwar Ali Sarkar supra was rejected by the majority Bose J dissenting on the ground that having regard to the underlying purpose and policy of the Act as disclosed by its title preamble and its provisions the classification of the offences for the trial of which the Special Court was set up and a special procedure was laid down could not be said to he unreasonable or arbitrary
In coming to this conclusion the Court relied on what was described as well known that during the post war period several undertakings which were established for distribution and control of essential supplies gave special opportunities to unscrupulous persons in public services who were put in charge of such undertakings to enrich themselves by corrupt practices
Viewed against that background the Court considered that offences mentioned in the Schedule to the Act were common and widely prevalent during the particular period and it was in order to place an effective check upon these offences that the impugned legislation was thought necessary
Such a legislation according to the majority under which Special Courts were established to deal with special type of cases under a shortened and simplified procedure was based on a perfectly intelligible principle of classification having a clear and reasonable relation 531 to the object sought to be attained
It was contended on behalf of A the appellants that the Act conferred an unfettered discretion on the State Government to choose any particular case of an individual accused and send it for trial to the Special Court
This argument was rejected on the ground that it was competent to the legislature to leave it to an administrative authority to apply a law selectively to persons or things within a defined group by indicating the underlying policy and purpose in accordance with which and in fulfilment of which the administrative authority was expected to select the persons or things to be brought within the operation of the law
The mere circumstance according to the majority that the State Government was not compellable to allot all cases of offences set out in the Schedule to Special Judges but was vested with a discretion m the matter and could choose some cases only for trial before the Special Court did not offend against article 14
In Asgarali Nazarali Singaporawalla Supra the Criminal Law Amendment Act 1952 enacted by the Parliament came into force whilst the appellant along with others was being tried before the Presidency Magistrate Bombay for offences under section 161 read with section 116 etc
Of the Penal Code
The Act provided for the trial of offences of bribery and corruption by the Special Judges and for the transfer of all pending trials to such Judges
The Presidency Magistrate continued the trial despite the passing of the Act and acquitted the appellants
It was held by this Court
unanimously that the Act did not violate article 14 since the offences of bribery and corruption by public servants could appropriately be classified in one group or category
The classification which was founded on an intelligible differentia was held to bear a rational relationship with the object of the Act which was to provide for speedier trial of certain offences
An argument was pressed upon this Court which was based on the observations of Mahajan J and Mukherjea J in Anwar Ali Sarkar Supra at pages 314 and 328 respectively that the speedier trial of offences could not afford a reasonable basis for classification
That argument apparently did not find favour with the Court which said page 691 that the particular observations  of the learned Judges in Anwar Ali Sarkar might standing by themselves lend support to the argument but the principle underlying those observations was not held to be conclusive by this Court in Kedar Nath Bajoria
Supra This analysis will be incomplete without reference to a recent decision of this Court in Maganlal Chhagganlal P Ltd vs Municipal 532 Corporation of Greater Bombay  Ors1 that case two parallel procedures one under Chapter VA Or the Bombay Municipal Corporation Act 1888 and the other under the Bombay Government Premises Eviction Act 1955 were available for eviction of persons from public premises
The constitutional validity of the relevant provisions of the two Acts was challenged on the ground that they contravened article 14 since the procedure prescribed by the two Acts was more drastic and prejudicial than the ordinary procedure of a civil suit and it was left to the arbitrary and unfettered discretion of the authorities to adopt such special procedure against some and the ordinary remedy of civil suit against others
It was held by this Court that where a statute providing for more drastic procedure different from the ordinary procedure covers the whole field covered by the ordinary procedure without affording any guidelines as to the class of cases in which either procedure is to be resorted to the statute will be hit by article 14
However a provision for appeal could cure the defect and if from the preamble and the surrounding circumstances as well as the provisions of the statutes themselves explained and amplified by affidavits necessary guidelines could be spelt out the statute will not be hit by article 14
On the merits of the procedure prescribed by the two Acts it was held by the Court that it was not so harsh or unconsionable as to justify the conclusion that a discrimination would result if resort to there is had in some cases and to the ordinary procedure of civil courts in others
By a separate but concurring judgment two of us namely Bhagwati J and V R Krishna Iyer J held that it was inevitable that when a special procedure is prescribed for a defined class of persons such as occupiers of municipal or government premises discretion which is guided and controlled by the underlying policy and purpose of the legislation has necessarily to be vested in the administrative authority to select occupiers of municipal or government premises for bringing them within the operation of the special procedure
The learned Judges further observed that minor differences between the special procedure and the ordinary procedure is not sufficient for invoking the inhibition of the equality clause and that it cannot be assumed that merely because one procedure provides the forum of a regular court while the other provides for the forum of an administrative tribunal the latter is necessarily more drastic and onerous than the former
Therefore said the learned Judges whenever a special machinery is devised by the legislature entrusting the power of determination of disputes to an authority set up by the legislature in substitution of regular courts of law one should 1  533 not react adversely against the establishment of such an authority merely because of a certain predilection for the prevailing system of administration of justice by courts of law
In the context of the need for speedy and expeditious recovery of public premises for utilisation for important public uses where dilatoriness of the procedure may defeat the very object of recovery the special procedure prescribed by the two Acts was held not to be really and substantially more drastic and prejudicial than the ordinary procedure of a civil court
The special procedure prescribed by the two Acts it was observed was not so substantially and qualitatively disparate as to attract the vice of discrimination There are numerous cases which deal with different facets of problems arising under article 14 and which set out principles applicable to questions which commonly arise under that article
Among those may he mentioned the decisions in Budhan Choudhry and Others vs The State of Bihar1 Shri Ram Krishna Dalmia vs Shri Justice section R Tendolkar  Others2 Sri C L Emden vs The State of UP3 Kangsari Haldar  Another vs The State of West Bengal4 Jyoti Persad vs The Administrator for the Union Territory of Delhi5 and The State of Gujarat and Another vs Shri Ambica Mills Ltd Ahmedabad etc6 But as observed by Mathew J in the last mentioned case it would be an idle parade of familiar learning to review the multitudinous cases in which the constitutional assurance of equality before the law has been applied
We have therefore
confined our attention to those cases only in which special tribunals or courts were set up or Special Judges were appointed for trying offences or classes of offences or cases or classes of cases
The survey which we have made of those cases may be sufficient to give a fair idea of the principles which ought to be followed in determining the validity of classification in such cases and the reasonableness of special procedure prescribed for the trial of offenders alleged to constitute a separate or distinct class
As long back as in 1960
it was said by this Court in Kangsari Haldar Supra that the prepositions applicable to cases arising under article 14 have keen repeated so many times during the past few years that they now sound almost platitdinous 
What was considered to 1  2  3 11960 2 SCR 592
4  5  6  534 be platitudinous some 18 years ago has in the natural course of events become even more platitudinous today especially in view of the avalanche of cases which have flooded this Court
Many a learn e i Judge of this Court has said that it is not in the formulation of principles under article 14 but in their application to concrete cases that difficulties generally arise
But considering that we are sitting in a larger Bench than some which decided similar cases under article 14 and in view of the peculiar importance of the questions arising in this reference though the questions themselves are not without a precedent we propose though undoubtedly at the cost of some repetition to state the prepositions which emerge from the judgments of this Court in so far as they are relevant to the decision of the points which arise for our consideration
Those propositions may be stated thus 1
The first part of article 14 which was adopted from the Irish Constitution is a declaration of equality of the civil rights of all persons within the territories of India
It enshrines a basic principle of republicanism
The second part which is a corollary of the first and is based on the last clause of the first section of the Fourteenth Amendment of the American Constitution enjoins that equal protection shall be secured to all such persons in the enjoyment of their rights and liberties without discrimination of favourtism
It is a pledge of the protection of equal laws that is laws that operate alike on all persons under like circumstances
The State in the exercise of its governmental power has of necessity to make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies and it must possess for that purpose large powers of distinguishing and classifying persons or things to be subjected to such laws
The Constitutional command to the State to afford equal protection of its laws sets a goal not attainable by the invention and application of a precise formula
There fore classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things The Courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case
Classification is justified if it is not palpably arbitrary
535 4
The principle underlying the guarantee of article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances
It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed
Equal laws would have to be applied to all in the same situation and there should be no discrimination between one person and another if as regards the subject matter of the legislation their position is substantially the same
By the process of classification the State has the power of determining who should be regarded as a class for purposes of legislation and in relation to a law enacted on a particular subject
This power no doubt in some degree is likely to produce some inequality but if a law deals with the liberties of a number of well defined classes it is not open to the charge of denial of equal protection on the ground that it has no application to other persons
Classification thus means segregation in classes which have a systematic relation usually found in common properties and characteristics
It postulates a rational basis and does not mean herding together of certain persons and classes arbitrarily
The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience It can recognise even degree of evil but the classification should never be arbitrary artificial or evasive
The classification must not be arbitrary but must be rational that is to say it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation
In order to pass the test two conditions must be fulfilled namely 1 that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and 2 that differentia must have a rational relation to the object sought to be achieved by the Act
536 8
The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them
In short while Article 14 forbids class discrimination by conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liabilities proposed to be imposed it does not forbid classification for the purpose of legislation provided such classification is not arbitrary in the sense above mentioned
If the legislative policy is clear and definite and as an effective method of carrying out that policy a discretion is vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons the statute itself cannot be condemned as a piece of discriminatory legislation
In such cases the power given to the executive body would import a duty on it to classify the subject matter of legislation in accordance with the objective indicated in the statute
If the administrative body proceeds to classify persons or things on a basis which has no rational relation to the objective of the legislature
its action can be annulled as offending against the equal protection clause
On the other band if the statute itself does not disclose a definite policy or objective and it confers authority on another to make selection at its pleasure the statute would be held on the face of it to be discriminatory irrespective of the way in which it is applied
Whether a law conferring discretionary powers on an administrative authority is constitutionally valid or not should not be determined on the assumption that such authority will act in an arbitrary manner in exercising the discretion committed to it
Abuse of power given by law does occur but the validity of the law cannot be contested because of such an apprehension
Discretionary power is not necessarily a discriminatory power
Classification necessarily implies the making of a distinction or discrimination between persons classified and those who are not members of that class
It is the essence of a classification that upon the class are cast duties and 537 burdens different from those resting upon the general public
Indeed the very idea of classification is that of in equality so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality
Whether an enactment providing for special procedure for the trial of certain offences is or is not discriminatory and violative of article 14 must be determined in each case as it arises for no general rule applicable to all cases can safely be laid down
A practical assessment of the operation of the law in the particular circumstances is necessary
A rule of procedure laid down by law comes as much within the purview of article 14 as any rule of substantive law and it is necessary that all litigants who are similarly situated are able to avail themselves of the same procedural rights for relief and for defence with like protection and without discrimination
By the application of these tests 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 he 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 41
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 41 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 Or II India that the commission of such offences should be judicially determined with the utmost dispatch and the latter in relation to their 16 978 SCI78 538 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
The promulgation of emergency is not and cannot be a matter of normal occurrence in a nation s life and indeed a proclamation of emergency cannot but be claimed to have been necessitated by an extra ordinary situation
Article 352 of the Constitution under which the emergency was declared in June 1975 occurs in Chapter XVIII called Emergency Provisions
That article empowers the President to issue a proclamation if he is satisfied that a grave emergency exists wherby the security of India or of any part of the territory thereof is threatened whether by war or external aggression or internal disturbance
Under article 358 while a proclamation of emergency is in operation the State can make a law or take any executive action even if it violates the provisions of article 19
That is a consequence which ensues ipso facto on the declaration of an emergency
The declaration of emergency on June 25 1975 was followed by an order passed by the President on June 27 under article 359 suspending the enforcement of the right to move any court for the enforcement of fundamental rights conferred by articles 14 21 and 22 of the Constitution
During the period of emergency several laws of far reaching consequence were passed by the Parliament and various notifications and orders were issued by or under the authority of the Central Government affecting the rights and liberties of the people
They are The Defence of Indian Amendment Act 1975 The Conservation of Foreign Exchange and Prevention of Smuggling Activities Amendment Act 1975 The Maintenance of Internal Security Amendment Act 1975 The Election Laws Amendment Act 1975 The Constitution Thirty eighth and Thirty ninth Amendment Acts 1975 The Maintenance of Internal Security Amendment Act 1976 The Maintenance of Internal Security Second Amendment Act 1976 The Press Counsil Repeal Act 1976 The Prevention of Publication of objectionable Matter Act 1976 Parliamentary Proceedings Protection of Publication Repeal Act 1976 The Constitution Forty Second Amendment Act 1976 The Re presentation of the People Amendment Ordinance 1977 The Disputed Elections Prime Minister and Speaker Ordinance 1977 and the Presidential and Vice Presidential Elections Amendment ordinance 1977
After the declaration of emergency various regulatory measures were taken with a view to imposing press censorship
539 The orders and directions in that behalf are dated June 26 July 5 July 6 July 13 and August 5 1975
On January 8 1976 a Presidential Order was issued under article 3591 suspending the right to move any court for the enforcement of the fundamental rights conferred by article 19 of the Constitution
These and other measures taken during the period of emergency have been summarised by one of us Fazal Ali J in the State of Rajasthan  Ors
vs Union of India1 thus 1 A grave emergency was clamped in the whole country 2 Civil liberties were withdrawn to a great extent 3 Important fundamental rights of the people were suspended 4 Strict censorship on the press was placed and 5 The judicial powers were crippled to a large extent
The third clause of the Preamble to the Bill contains a precise re production of these five factors
On May 28 1977 the Government of India in its Ministry of Home Affairs issued a Notification under section 3 of the Commission of Inquiry Act 1952 appointing Shri J C Shah a retired Chief Justice of the Supreme Court as a Commission of Inquiry for enquiring into several aspects of allegations of abuse of authority excesses and malpractices committed and action taken or purported to be taken in the wake of the Emergency proclaimed on the 25th June 1975 under Article 352 of the Constitution
The Commission has submitted its report in two parts dated March 11 and April 26 1978 which contains its findings on what is generally called the excesses  alleged to have been committed during the period of emergency by persons holding high public or political offices in India and by others in association or collaboration with them or with their connivance
A few other Commissions were also appointed for the same purpose
The first recital of the preamble to the Bill refers to the reports rendered by these Commissions of Inquiry disclosing the existence of prima facie evidence of offences committed by persons who held high public or political offices in the country and other connected with them during the operation of the emergency dated June 25 1975 and the preceding period commending on February 27 1975
1 19781 SCR 1118
540 We will deal with the relevance of the latter date in due course but the facts and circumstances which we have narrated above leave no doubt that 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
We are not concerned with the truth or otherwise of the allegations the narrow question before us being whether in the first instance the classification is based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out
The answer to that question can be one and one only namely that offences alleged to have been committed during the emergency by persons holding high public or political offices in India stand in a class apart
The cover of emergency so it is alleged provided a unique opportunity to the holders of such offices to subvert the rule of law and perpetrate political crimes on the society
Others left out of that group had neither the means nor the opportunity to do so since they lacked the authority which comes from official position
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
This is not to say that persons who fall outside the group cannot ever commit or might not ever have committed crimes of great magnitude by exploiting their public offices
But those crimes if at all are of a basically different kind and have generally a different motivation
In the first place no advantage can be taken of the suppression of human freedoms when the emergency is not in operation
The suppression of people s liberties facilitates easy commission of crimes
Public criticism is a potent deterrent to misbehaviour and when that is suppressed there is no fear of detection
Secondly crimes which are alleged to have been committed during extraordinary periods like the period of emergency are oblique in their design and selective in their object
They are generally designed to capture and perpetuate political power and they are broadly directed against political opponents
The holder of a high public office who in normal times takes a bribe has no greater purposes in doing so than to enrich himself
That unquestionably deserves the highest condemnation and there is no reason why such crimes should not also be tried speedily in the interest of public decency and morals
But those crimes are not woven out of the warp and woof of political motivations
Equal laws have to be applied to all in the same situation and legislature is free to recognise the degree of harm or evil
Parliamentary demo 541 cracy will see its halcyon days in India when law will provide for a speedy trial of all offenders who misuse the public offices held by them
Purity in public life is a desired goal at all times and in all situations emergency or no emergency
But we cannot sit as a super legislature and strike down the instant classification on the ground of under inclusion on the score that those others are left untouched so long as there is no violation of constitutional restraints
In this context it cannot be over emphasized that If the law presumably hits the evil where it is most felt it is not to be overthrown because there are other instances to which it might have been applied
There is no doctrinaire requirement that the legislation should be couched in all embracing terms
See West Coast Hotel Company vs Parrish 1
The next point which must be considered 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 as we have pointed out 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 congestion in Courts the mounting arrears and the easy and unconcerned dilatoriness which characterise the routine trials in our Courts are well known facts of contemporary life
They are too glaring to permit of disputation
Seminars and symposiums are anxiously occupied in finding ways and means to solve what seems to be an intractable and frustrating problem
The Bill therefore justifiably provides for a method whereby prosecutions falling within its scope may be terminated speedily
It is no answer that speedier trial is a universal requirement of every trial
The recital of the 6th paragraph of the preamble shows the true nexus between the basis of classification under clause 41 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
If it be true and we have to assume it to be true that offences were committed by persons holding high public or political 1300 US 379 400 542 offices in India under cover of the declaration of emergency and in the name of democracy there can be no doubt that the trial of such persons must be concluded with the utmost dispatch in the interest of the functioning of democracy in our country and the institutions created by our Constitution
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
If prosecutions which the Bill envisages are allowed to have their normal leisurely span of anything between 5 to 10 years no fruitful purpose will be served by launching them
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 41 of the Bill
If the classification is valid and its basis bears a reasonable relation ship with the object of the Bill no grievance can be entertained under article 14 that the procedure prescribed by the Bill for the trial of offences which fall within its terms is harsher or more onerous as compared with the procedure which governs ordinary trials
Classification necessarily entails the subjection of those who fall within it to a different set of rules and procedure which may conceivably be more disadvantageous than the procedure which generally applies to ordinary trials
In almost all of the decisions bearing on the question which arise for our consideration and which we have reviewed the special procedure prescribed by the particular laws was distinctly and indisputably more onerous than the procedure which would have otherwise governed the trials
But once a classification is upheld by the application of the dual test subjection to harsher treatment or disadvantageous procedure loses its relevance the reason being that for the purposes of article 14 unequals cannot complain of unequal treatment
One of the propositions formulated by us in the course of our judgment namely proposition No 11 is to the effect that Classification necessarily implies discrimination between persons classified and those who are not members of that class
It is the essence of a classification that upon the class are cast duties and burdens different from those resting upon the general public
Indeed the very idea of classification is that of inequality so that it goes with 543 out saying that the mere fact of inequality in no manner determines the matter of constitutionality
It is therefore unnecessary to catalogue while we are on article 14 the various points of difference between the procedure prescribed by the Bill and the ordinary procedure in order to find whether the former is more disadvantageous than the latter
We will only add that some of the provisions of the Bill to which we will presently turn cast upon the accused arraigned before the Special Court certain disadvantages as compared with the accused who are put up for trial before the ordinary courts even as son e other provisions give to them certain advantages which are denied to others
It ought to be mentioned that there is no scope for the argument In the instant case that the Bill leaves it to the arbitrary and uncanalised discretion of the Central Government to pick and choose persons for trial before the Special Courts and leaves the rest to be tried by the ordinary procedure in the regular courts
Were it so it would have become necessary to examine in the context of article 14 whether the procedure prescribed by the Bills is more onerous than the procedure which governs ordinary trials
But under the Bill the Government is felt with no choice or alternative in the matter of forum of trial since if the conditions of clause 41 are satisfied the prosecution has to be instituted in the Special Court
By that clause if the Central Government 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 public or political office in India and that in accordance with the guidelines contained in the preamble the said offence ought to be dealt with under the Act the Central Government shall make a declaration to that effect in every case in which it is of the aforesaid opinion
Thus formation of the requisite opinion casts on the Government on obligation to make the declaration in every case without exception in which the opinion is formed
Upon the making of the declaration another consequence follows compulsively under clause 5
That clause provides that on a declaration being made under clause 41 any prosecution in respect of the particular offence shall be instituted only in the Special Court
Not only is there no scope for initiating prosecutions before an ordinary court in matters which fall within the scope of clause 4 1 but clause 5 goes a step further and provides that even pending prosecutions in respect of the offences specified in clause 41 shall stand transferred to the special Court
Clause 6 which is an extension of the same concept provides that if on 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 whether 544 pending or disposed of is itself pending in any court of appeal or revision the same shall stand transferred for disposal to the Supreme Court
The Bill in short excludes the existence of two parallel jurisdictions in the same field and ensures effectively that all offences which fall within its scope shall be tried by the Special Court only and by no other court or tribunal
That leaves one more point for consideration for the purposes of article 14 which though last is not the least in point of importance
That point pertains to the relevance of the date mentioned in the preamble namely February 27 1975
The reasons constituting the justification for the Bill are contained in the eight paragraphs of its preamble out of which paragraph one is relevant for the present purpose
It says that certain Commissions of Enquiry were appointed under the Commissions of Enquiry Act 1952 which had rendered reports disclosing the existence of prima facie evidence of offences committed by persons who had held high public or political offices in the country and by others connected with the commission of such offences during the operation of the Proclamation of Emergency dated 25th June 1975 and during the pre ceding period commencing 27th February 1975 when it became apparent that offenders were being screened by those whose duty it was to bring them to book
While explaining this recital it was urged by the learned Solicitor General and Shri Ram Jethmalani that a clear trend to protect excesses and illegalities became apparent on the particular date
Reliance was placed in support of that contention on a pair of questions and answers exchanged on the floor of the House between a member of the Lok Sabha and the then Prime Minister
According to the Lok Sabha Debates 5th Series Vol 48 page 258 dated February 27 1975 this is what transpired between the two Shri Janeshwar Mishra Allahabad at about Maruti  Shrimati Indira Gandhi There is no corruption in Maruti
Since the hon
Member has raised it I can say that every question that has been asked has been replied to nothing wrong has been done no special favour should be or has been given because it is concerned with the Prime Minister s son
What I was saying is that we are just as anxious as any body else to remove corruption
I do not want lo go into the details
I have earlier spoken about the stage by stage actions we have taken
I have said it in public meetings and I have discussed it with leaders
But today there seems to be a very selective type of campaign or accusation
Corruption will not 545 go in this way
If the real intention is to remove corruption then it must be an honest way of dealing with it at every level Shri Shyamnandan Mishra A certificate of honesty should come from you  Shrimati Indira Gandhi Not at all
The claim that the tendency to protect the excess and illegalities became apparent because of these answers or that the particular answers created a new awareness that offenders were being screened by those whose duty it was to bring them to book is too naive for our acceptance
Even assuming that there is any credible basis for the same the grouping together of persons who are alleged to have committed offences during the period of emergency with others who are alleged to have engaged themselves
 in screening certain offenders prior to the declaration of emergency is tantamount to clubbing together in the same class persons who do not possess common qualities or characteristics
It is unquestionably reasonable for the legislature to think that the suppression of human liberties during the period of emergency furnished an opportunity to persons holding high public or political offices to commit crimes of grave magnitude which were calculated to destroy democratic values
The premise that the suspension especially of preferred freedoms engineers callous defiance of laws and the Constitution is easy to understand
That is why offences alleged to have been committed during the period of emergency can be treated as sui generis
The same cannot however be said of activities even assuming that they are unlawful which preceded the declaration of emergency
Those doings were open to public criticism and were unprotected by the veil of emergency
It is true that one ought not to insist on abstract symmetry or delusive exactness in the matter of classification
Therefore eschewing a doctrinaire approach one should test the validity of a classification by broad considerations particularly when the charge is one of under inclusiveness
The Government as it is said must be permitted a little free play in the joints since there is no mathematical formula for determining why those who are left out of a class should not be included within it
But persons possessing widely differing characteristics in the context of their situation in relation to the period of their activities cannot by any reasonable criterion be herded in the same class
The ante dating of the emergency as it were from June 25 to February 27 1975 is wholly unscientific and proceeds from irrational considerations arising out of a supposed discovery in the matter of screening of offenders
The inclusion of offences and offenders in relation to the period from February 27 to June 25 1975 in the same class as those whose alleged unlawful activities covered the period of emergency is too artificial to be sustained
546 While justifying the extended classification counsel drew our attention to certain findings of the Shah Commission of Enquiry Vol
I items 8 pages 59 to 64 on the alleged misuse of power by the then Prime Minister prior to the declaration of emergency
Those findings according to us are beside the point for the present purpose The question before us is not whether anyone high or low committed any excess of power before the declaration of emergency
The question is whether those who are alleged to have committed offences prior to the emergency can be put in the same class as persons who are alleged to have committed offences during the period of emergency
The answer to that question has to be in the negative
We are accordingly of the view that the classification provided for by clause 4i 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 emerged y by persons holding high public or political officer
The classification is invalid in so far as it covers offences committed by such persons between February 27 and June 25 1975
No declaration can the fore be made by the Central Government in regard to those offences and offenders under the present classification
That disposes of the question as regard the validity of the classification provided for by clause 41 of the Bill
Those who are wrong by included in the classification can have nothing more to say because they cannot be tried by the Special Courts
As regards those who are rightly grouped together we have already indicated that since the classification is valid it is unnecessary for the purposes of article 14 to consider whether the procedure prescribed by the Bill is more onerous than the ordinary procedure
That observation it shall have been noticed is expressly limited to the purposes of article 14
The reason for so limiting it is that the assumption underlying the judgment of the majority ill A K Gopalan vs State of Madras1 that certain articles of the Constitution exclusively deal with specific matters no longer holds the field A K Gopalan supra was in that respect expressly over ruled by the majority ill R Cooper vs Union of India2 known generally as the Bank Nationalisation case
In Shambhu Nath Sarkar vs The State of West Bengal  Ors
3 it was held by a seven Judge Bench that the law of preventive detention has to meet the challenge not only of articles 21 and 22 but also of article 191 d 
In l  2   578
3  547 Maneka Gandhi vs Union of India1 it was observed by one of us Bhagwati J that the law must be now taken to be well settled that article 21 does not exclude article 19 and that even if there is a law prescribing a procedure for depriving a person of personal liberty and there is consequently no infringement of the fundamental right conferred by article 21 such law in so far as it abridges or takes away any fundamental right under article 19 would have to meet the challenge of that article
The view which was accepted by the majority is that the rights dealt with in different articles contained in Part III of the constitution do not represent separate streams of rights but are parts of an integrated constitutional scheme
It is thus beyond the pale of controversy now that the various articles in part III of the Constitution cannot be treated as mutually exclusive
Upon that view it is not sufficient to say that since the classification is valid it is not necessary to consider whether the procedure prescribed by the Bill is more onerous than the ordinary procedure The onerousness of the special procedure would be irrelevant in considerations arising under article 14 for the reason that the classification is valid to the extent indicated
But the Bill has got to meet the challenge cf other provisions of the Constitution also in so far as any particular provision is attracted
The theory that articles conferring fundamental rights are mutually exclusive and that any particular article in part III constitutes a self contained code having been discarded it becomes necessary to examine whether the procedure prescribed by the Bill is violative of any other provision of the Constitution 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
In Maneka Gandhi vs Union of India1 it was held by the majority that the procedure contemplated by article 21 must be limit and just and fair and not arbitrary fanciful or oppressive otherwise it would be no procedure at all and the requirement of article 21 would not be satisfied
It is therefore imperative to examine whether the procedure prescribed by the Bill is just and fair or is in any respect arbitrary or oppressive
An infinite variety of grievances has been made against the provisions of the Bill Some of them are so unsubstantial that we consider it unnecessary to catalogue them
We will refer to a few of them only as a sample of the many that were made
It is urged that a person put 1 11978 2 SCR 621
1 1978 2 SCR 621 674
548 up for trial before the Special Court is denied the benefit of section 439 of the Code of Criminal Procedure under which a High Court or a Court of Sessions may release an accused on bail that it is permissible to the Government under the provisions of the Bill to choose a situs of trial which is inconvenient to the accused denying thereby to him the benefit of section 177 of the Code that the Bill virtually abolishes the court s supervisory jurisdiction over the investigation conducted by the police that the accused is denied the right of trial before courts with limited powers of punishment that the warrant procedure prescribed by the Bill for the trial of offences is in the circumstances needlessly cumbersome that there is no provision for confirming the sentence of death if any is passed by the Special Court that the Bill confers the right of appeal in every case as much on the State as on the accused and thereby enlarges the rights of the State and imposes uncalled for burden on the accused that whereas the Code of Criminal Procedure requires the State to obtain the leave of the court before filing an appeal against an order of acquittal the Bill imposes no such pre condition and so on and so forth
We have given our anxious consideration to these and similar other grievances and apprehensions but we see no substance in them except to the extent to be indicated later
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
In Syed Qasim Razvi supra it was held by this Court that the warrant procedure is in no sense prejudicial to the interest of an accused
As regards bail it is open to the accused to ask for it and in appropriate cases the Special Court would be justified in enlarging him on bail
As regards the situs of trial it is unfair to make an assumption of mala fides and say that an inconvenient forum will be chosen deliberately
Besides the provisions of chapter XIII of the Code containing section 177 to 189 which deal with Jurisdiction of the criminal courts in Inquiries and Trials are not excluded by the Bill
Those provisions will govern the question as to the situs of trial
The grievance regarding absence of provision for the confirmation of death sentence is unreal because under clause 10 1 every accused has a right of appeal to this Court
There is no reason to suppose that this right is in any sense narrower than the right of an accused to ask the High Court to examine the correctness of the death sentence imposed by the Sessions Court
In so far as the other grievances are concerned they are too trivial to justify the charge that the procedure prescribed by the Bill is unjust or unfair
In fact most of the other grievances in this category were made on behalf of the accused in Syed Qasim 549 Razi and Habeeb Mohamed supra but they were rejected by this Court
Every variation in procedure is not to be assumed to be unjust and indeed as observed by this Court in Rao Shiv Bahadur Singhsupra which was followed in Union of India vs Sukumar Pyne1 a person accused of the commission of an offence has no vested right to be tried by a particular court or a particular procedure except in so far as there is any constitutional objection by way of discrimination or the violation Or any other fundamental right is involved
In Sanjay Gandhi vs Union of India2 one of us Krishna Iyer J said that no party to a criminal trial has a vested right in slow motion justice
This has to be constantly kept in mind without of course overlooking the Constitutional inhibitions
Though this is so the provisions of the Bill appear to us 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
To compel an accused to submit to the jurisdiction of a Court which in fact is biased or is reasonably apprehended to be biased is a violation of the fundamental principles of natural justice and a denial of fair play
There are yet other cases in which expediency or convenience may require the transfer of a case even if no bias is involved
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
The provision for the appointment of a sitting High Court Judge as a Judge of the Special Court is open to no exception
In so far as the alternate source 1   38
2 ATR 550 is concerned we entertain the highest respect for tired Judges of High Courts and we are anxious that nothing said by us in our judgment should be construed as casting any aspersion on them as a class
Some of them have distinguished themselves as lawyers once again some as members of administrative tribunal and many of them are in demand in important walks of life
Unquestionably they occupy 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
A retired Judge presiding over a Special Court who displays strength and independence may be frowned upon by the Government and there is nothing to prevent it from terminating his appointment as and when it likes
It is said on behalf of the Government that if the appointment has to be made in consultation with the Chief Justice of India the termination of the appointment will also require similar consultation
We are not impressed by that submission
But granting that the argument is valid the process of consultation has its own limitations and they are quite well known
The obligation to consult may not necessarily act as a check on an executive which is determined to remove an inconvenient incumbent We are therefore of the opinion that clause 7 of the Bill violates article 21 of the Constitution to the extent that a person who has held office as a Judge of the High Court can be appointed to preside over a Special Court merely in consultation with the Chief Justice of India
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 Dot 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 b made to depend upon pious expressions of hope howsoever past experience may justify them
The assurance that conventions are seldom broken is a poor consolation to an accused whose life and honour are at stake
Indeed one must look at the matter not so much from the point of view of the Chief Justice of India nor indeed from the point of view of the Government as from the point of view of the accused 551 and the expectations and sensitivities of the society
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 lo try special class of cases should inspire the confidence not only of the accused but of the entire community
Administration of justice has a social dimension and the society at large has a stake in impartial and even handed justice
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
These points were highlighted during the course of the hearing of the reference whereupon the learned Solicitor General filed a statement in the Court to the following effect 1
That in the course of written submissions already filed it has been contended on behalf of the Union of India that the procedure for trial envisaged in the Bill under Reference is more liberal and ensures a fair trial
That the last recital in the Preamble to the Bill states that some procedural changes were being made whereby avoidable delay is eliminated without interfering with the right to a fair trial
That in the course of arguments certain observations were made by this hon ble Court indicating certain changes which might ensure fairer trial and inspire greater confidence about the working of Special Courts
That in the light of the proceedings in the Court certain suggestions were communicated by the Solicitor General to the Government
That after careful consideration the Government accepts the suggestion that only a sitting Judge of the High Court would be appointed to preside over a Special Court and that the Government also agrees that the appointment will be made with the concurrence of the Chief Justice of India
That the Government also agrees to the suggestion that the Supreme Court will be specifically empowered to transfer a case from one Special Court to another notwithstanding any other provision in the Bill
552 7
That the Government of India have authorised the Solicitor General to make a statement to the Court on the above Sd section N Kacker Solictor General of India 25 9 78 The learned Solicitor General assured us that the Government is committed to making appropriate changes in the bill as mentioned in paragraph 5 and 6 above
Though we appreciate the response of the Government it has to be remembered that appropriate amendments shall have to be passed by the legislature
The assurance that such amendments will be proposed by the Government and the prospect that they may be passed by the legislature cannot relieve us from  discharging our duty to pronounce upon the Bill as it stands to day
So long as the Bill contains the three offending provisions which we have pointed out above the procedure will be violative of article 21 being unjust and unfair
The other objections are without any substance particularly in view of the fact that the trial is to be held by no less a person than a Judge of a High Court and there is a right of appeal to this Court
These two are the outstanding nay the saving safeguards of the Bill
There is one more provision of the Bill to which we must refer while we are on this question
Sub clause 1 of clause 4 provides for the making of the declaration by the Central Government while sub clause 2 provides that Such declaration shall not be called in question in any court
Though the opinion which the Central Government has to form under clause 41 is subjective we have no doubt that despite the provisions of sub clause 2 it will be open to judicial review at least within the limits indicated by this Court in Khudiram Das vs The State of West Bengal  Ors1 It was observed in that case by one of us Bhagwati J while speaking for the Court that in a Government of laws there is nothing like unfettered discretion immune from judicial reviewability
The opinion has to be formed by the Government to say the least rationally and in a bonafide manner
There was some discussion before us on the question as to whether the opinion rendered by this Court in the exercise of its advisory jurisdiction under article 1431 of the Constitution is binding as law declared by this Court within the meaning of article 141 of the Constitution
The question may have to be considered more fully on a future occasion but we do hope that the time which has been 1   845
553 spent in determining the questions arising in this reference shall not have been spent in vain
In the cases of Estate Duty Bill1 UP Legislative Assembly2 and St Xaviers College3 the view was expressed that advisory opinions do not have the binding force of law
In Attorney General for Ontario vs Attorney General for Canada4 it was even said by the Privy Council that the opinions expressed by the Court in its advisory jurisdiction will have no more effect than the opinions of the law officers
On the other hand the High Court of Calcutta in Ram Kishore Sen vs Union of India5 and the High Court of Gujarat in Chhabildas Mehta vs The Legislative Assembly Gujarat State6 have taken the view that the opinion rendered by the Supreme Court under article 143 is law declared by it within the meaning of article 141
In The Province of Madras vs Messrs Boddu Baidanna 7 the Federal Court discussed the opinion rendered by it in the Central Provinces case in the same manner as one discusses a binding judgment
We are inclined to the view that though it is always open to this Court to re examine the question already decided by it and to over rule if necessary the view earlier taken by it insofar as all other courts in the territory of India are concerned they ought to be bound by the view expressed by this court even in the exercise of its advisory jurisdiction under article 1431 of the Constitution
We would also like to draw attention to the observations made by Ray CJ in St Xaviers College supra that even if the opinion given in the exercise of advisory jurisdiction may not be binding it is entitled to great weight
It would be strange that a decision given by this Court on a question of law in a dispute between two private parties should be binding on all courts in this country but the advisory opinion should bind no one at all even if as in the instant case it is given after issuing notice to all interested parties after hearing everyone concerned who desired to be heard and after a full consideration of the questions raised in the reference
Almost everything that could possibly be urged in favour of and against the Bill was urged before us and to think that our opinion is an exercise in futility is deeply frustrating
While saying this we are not unmindful of the view expressed by an eminent 1  320 332341
2   446 47
3  201 202
4  589
5 AIR 1965 Cal 282
6 1970 II Gujarat Law Reporter 729
7 8 17 978 SCI78 554 writer that although the advisory opinion given by the Supreme Court has high persuasive authority it is not law declared by it within the meaning of article 141
See Constitutional Law of India by HM Seervai 2nd Edition Vol
II page 1415 para 2568
We have upheld the creation of Special Courts on the touchstone of the Constitution
We have also expressed the view that appointment of sitting Judges of the High Court to the Special Courts with the concurrence of the Chief Justice of India will meet the requirement of article 21
But we cannot resist the observation which was made during the course of arguments that investing the High Courts with jurisdiction to try cases under the Bill may in the circumstances afford the best solution from every point of view
The Chief Justices of High Courts will in their discretion assign and allocate particular cases to Judges of their Courts as they do in the normal routine of their function
To avoid delays and to ensure speedier trial no other work may be assigned to the Judge nominated by the Chief Justice to try a case or cases under the Bill
This will obviate the nomination by the Central Government of a particular Judge to try a particular case
Law is not the whole of life and the propriety of an action though not for the Court to decide ought to be a matter of paramount consideration for those who desire to govern justly and fairly
Courts d Justice cannot afford even to risk the charge of bias and no Judge wants it to be said of him that he was specially nominated by the Government to try a particular individual
The community must retain its confidence in the judiciary which has to decide not merely constitutional matters but a large variety of other matters in which law touches the life of common men at many points
As said by Prof Finer in The Theory and Practice of Modern Government  pp 51 152
The multitude does not minutely discriminate and when it mistrusts for one thing it may mistrust for another though the cases are poles asunder
The deeply thoughtful observations made in this behalf by our learned Brother Shinghal J ought to receive the most careful consideration at the hands of the Government
In conclusion our answer to the reference is as follows 1 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 101 of the Bill are therefore within the Parliament s legislative competence 555 2 The classification provided for in Clause 41 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 n validly be grouped along with those who are alleged to have committed offences during the period of  Emergency
It is therefore not competent to the Central Government to make a declaration under Clause 41 of the Bill in respect of persons who are alleged to have committed offences between February 27 1975 and June 25 1975
3 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 41 of the Bill is Juts and fair except in regard to the following matters a 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 b 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 c the absence of a provision for transfer of a case from one Special Court to another
4 The Bill is valid and constitutional in all other respects
KRISHNA IYER J Not a note of absonance but a stroke of emphasis is my main intent in appending this separate opinion confined to a few fundamentals
It is fair to make clear at the outset that all the legal conclusions reached by the learned Chief Justice command my concurrence but on certain key issues my ratiocination diverges sounding harsher and striking harder maybe
However the final confluence and considerable consonance cut down my coverage
The price of unanimity is not taciturnity where individual articulation may make distinctive contribution Right at the beginning an exordial enunciation of my socio legal perspective which has a constitutional bearing may be set out
I lend judicious assent to the boarder policy of social justice behind this 556 Bill
As I read it this measure is the embryonic expression of a necessitous legislative project which if full fledged will work a relentless break through towards catching through the compulsive criminal process the higher inhabitants of Indian public and political decks who have in practice remained untouchable  and unapproachable 
to the rule of law Operation Clean Up  is a consummation devoutly to be wished  although naive optimism cannot obfuscate the obnoxious experience that laws made in terrorem against those who belong to the top power bloc prove in action to be paper tigers
The pathology of our public law with its class slant is that an unmincing ombudsman or sentinel on the qui vive with power to act against those in power now or before and offering Legal access to the informed citizen to complain with immunity does not exist despite all the bruited umbrage of political performers against peculations and perversions by higher echelons
Law is what law does not what law says and the moral gap between word and deed menaces people s faith in life and law
And then the tragedy democracy becomes a casualty
The greatest trauma of our times for a developing country of urgent yet tantalising imperatives is the dismal yet die hard poverty of the masses and the democratic yet graft riven way of life of power wielders
Together they blend to produce gross abuse geared to personal aggrandizement suppression of exposure and a host of other horrendous yet hidden crimes by the summit executives pro tem the para political manipulators and the abetting bureaucrats
And the rule of law hangs limp or barks but never bites
An anonymous poet sardonically projected the social dimension of this systemic deficiency The law locks up both man and woman Who steals the goose from off the common But lets the greater felon loose Who steals the common from the goose
 The impact of summit  crimes in the Third World setting is more terrible than the Watergate syndrome as perceptive social scientists have unmasked
Corruption and repression cousins in such situations hijack developmental processes
And in the long run lagging national progress means ebbing people s confidence in constitutional means to social justice
And so to track down and give short shrift to these heavy weight criminaloids who often mislead the people by public moral weight lifting and multipoint manifestoes is 557 an urgent legislative mission partially undertaken by the Bill under discussion
To punish such super offenders in top positions sealing off legalistic escape routes and dilatory strategies and bringing them to justice with high speed and early finality is a desideratum voiced in vain by Commissions and Committees in the past and is a dimension of the dynamics of the Rule of Law
This Bill hopefully but partially breaks new ground contrary to people s resigned cynicism that all high powered investigations reports and recommendations end in legislative and judicative futility that all these valiant exercises are but sound and fury signifying nothing that business as usual  is the signature tune of public business heretofore here and hereafter
So this social justice measure has my broad assent in moral principle and in constitutional classification subject to the serious infirmities from which it suffers as the learned Chief Justice has tersely sketched
Whether this remedy will effectively cure the malady of criminal summitry is for the future to tell
All this serves as a backdrop
Let me unfold in fuller argumentation my thesis that the Bill good so far as it goes is bad so far as it does not go saved though by a pragmatic exception I will presently explain
Where the proposed law excludes the pre and post emergency crime doers in the higher brackets and picks out only Emergency  offenders its benign purpose perhaps becomes a crypto cover up of like criminals before and after
An ephemeral  measure to meet a perennial menace is neither a logical step nor national fulfilment
The classification if I may anticipate my conclusion
is on the brink of constitutional break down at that point and becomes almost vulnerable to the attack of article 14 The Court s advisory opinion is sought not on social policy but on constitutionality
Here however it is my very endorsement of the basic policy of the Bill the apparent motive of the mover the true principle of the measure and the urgent relevancy of the legislation swifts
sure yet fair justice to apex offenders in public and political life that compels me to be critical of a few provisions on grounds too basic to be slurred over
I start with the assumption that an Act of this nature with the major changes mentioned by the Chief Justice to avert collision with article 21 and with wider coverage to come to terms with article 14 is long overdue and if passed into law and enforced peremptorily may partly salvage the sunken credibility of the general community in democracy in action already demoralised since Independence by the perversion of power for oblique purposes as evidenced by periodical parliamentary debates and many Commission Reports still gathering dust
558 To drive home my point a little divagation is needed
Development in a State which directs the economy means public expenditure on an unprecedented scale for public weal and this national necessity is sometimes covertly converted into personal opportunity by people in lofty offices vested with authority for decision making
The realistic rule of law must reckon with the pernicious potential of guided missiles in the hands of misguided men especially when the victim is a soft  State and must rise to meet the menace and manacle the delinquent be he ever so high
I have said enough to justify the contention that these offenders perfectly fill the constitutional bill as a separate class which deserves speedy prosecution and final punishment by high judicial agencies if restoration of the slumping credence in the constitutional order and democratic development were to be sustained among the masses in Third World countries
The Pre amble to the Bill is revelatory of this orientation and the mover of the Bill Shri Ram Jethmalani appearing in person indicated as much
No erudite pedantry can stand in the way of pragmatic grouping of high placed office holders separately for purposes of high speed criminal action invested with early conclusiveness and inquired into by high level courts
The differentia of the Bill rings irresistibly sound
And failure to press forward such clean up undertaking may be a blow to the rule of law and the rule of life and may deepen the crisis of democracy among the millions the men who make our nation who to day are largely disenchanted
So it is time if peaceful transformation is the constitutional scheme to begin by pre emptive steps of quick and conclusive exposure and conviction of criminals in towers of power a special class of economic offenders with abettors from the Bureaucracy and Big Business as recent Commission Reports trendily portray and portent
Such is the simple socio logical substance of the classificatory descrimen which satisfies the egalitarian conscience of article 14
What better designs engineering can there be than to make a quick example of master criminals and tainted caesars with public office as protective mantle  The fundamental dynamics of Public Power great trust and sure accountability rank high in a people oriented scheme of the rule of law
I hold that in this generalised version there is a reasonable classification implicit in this legislation but venture further that it is perilously near being under inclusive and therefore unequal
For it is a truncated projection of a manifetsly wider principle that exalted offenders shall be dealt with by the criminal law with emergent speed so that the common man may know that when public power is abused for private profit or personal revenge the rule of law shall rapidly 559 run them down and restore the faith of the people in democratic institutions through speedy justice according to law
It is in this sense that very important persons wielding large administrative powers shall with quick despatch be tried and punished if guilty
Prompt trial and early punishment may be necessary in all criminal cases
But raw realism suggests that in a decelerating situation of slow motion justice with courts chocked by dockets there is a special case for speedier trial and prompter punishment where the offender sits at the top of the administrative pyramid
Leizurely justice year after the long drawn out commission proceedings hardly carries conviction when man s memories would have forgotten the grave crimes if any committed and men s confidence in the rule of law would have been wholly demolished by seeing the top brass continuing to hold such offices despite credible charges of gross crimes of misuse
The common people watch the fortunes of these favoured species when they violate the norms of the criminal law and if they are not punished forthwith lose faith in the system itself
The cynicism about equal justice under the law  sours into show me the man and I will show you the law 
The democratic system must ensure that the business of power public power shall not be doing business
The social philosophy and philosophy of law in this area emphatically require that offices of public power especially in a country of poverty shall not be the workshop of personal gain
The immediate correctional process is the court not the once in a few years ballot
Be you ever so high the law will watch you catch you convict you if guilty and that swiftly but fairly
The crucial test is All power is a trust  its holders are accountable for its exercise  for from the people and for the people all springs and all must exist 
By this high and only standard the Bill must fail morally if it exempts non Emergency criminals about whom prior Commission Reports now asleep in official pigeon holes bear witness and future Commission Reports who knows  may in time testify
In this larger perspective Emergency is not a substantial differentia and the Bill nearly recognises this by ante dating the operation to February G 27 1975 when there was no Emergency 
Why ante date if the emergency  was the critical criterion  It is common knowledge that currently in our country criminal courts excel in slow motion
The procedure is dilatory the dockets are heavy even the service of process is delayed and still more exasperating II there arc appeals upon appeals and revisions and supervisory jurisdictions baffling and baulking speedy termination of prosecutions not to 560 speak of the contribution to delay by the Administration itself by neglect of the basic necessaries of the judicial process
Parliamentary and pre legislative exercises spread over several years hardly did any thing for radical simplification and streamlining of criminal procedure and virtually re enacted with minor mutations the vintage Code making forensic flow too slow and liable to hold ups built into the law
Courts are less to blame than the Code made by Parliament for dawdling and Governments are guilty of denying or delaying basic amenities for the judiciary to function smoothly
Justice is a Cinderalla in our scheme
Even so leaving V V I P accused to be dealt with by the routinely procrastinating legal process is to surrender to interminable delays as an inevitable evil
Therefore we should not be finical about absolute processual equality and must be creative in innovating procedures compelled by special situations
But the idiom of article 14 is unmistakeable
The power status of the alleged criminal the nature of the alleged crime vis a vis public confidence and the imperative need for speedy litigative finality are the telling factors Every difference is not a differentia Speedy trials of offences of a public nature committed by persons who have held high public or political offices in the country and others connected with the commission of such offences  is the heart of the matter Let us take a close look at the Emergency  the vices it bred and the nexus they have to speedier justice substantial enough to qualify for reasonable sub classification
Information flowing from the proceedings and reports of a bunch of high powered judicial commissions shows that during that hushed spell many suffered shocking treatment
In the words of the Preamble civil liberties were withdrawn to a great extent important fundamental rights of the people were suspended strict censorship on the press was placed and judicial powers were curtailed to a large extent
Before proceeding further the Legislative and Judicative frontiers must be perceived with perspicacity as set out in Murthy Watch works etc
vs The Asst
Collector of Central Excise etc1 Every differentiation is not a discrimination
But classification can be sustained only if it is founded on pertinent and real differences as distinguished from irrelevant and artificial ones
The constitutional standard by which the sufficiency of the differentia which form a valid basis for classification may be measured has been repeatedly stated by the 1  at 130
561 courts
If it rests on a difference which bears a fair and just relation to the object for which it is proposed it is constitutional
To put it differently the means must have nexus with the ends
Even so a large latitude is allowed to the State for classification upon a reasonable basis and what is reasonable is a question of practical details and a variety of factors which the court will be reluctant and perhaps illequiped to investigate
In this imperfect world perfection even in grouping is an ambition hardly ever accomplished
In this context we have to remember the relationship between the legislative and judicial departments of Government in the determination of the validity of classification
A power to classify being extremely broad and based on diverse considerations of executive pragmatism the judicature cannot rush in where even the legislature warily treads
 The core question however is what reasonable relation Emergency as the basis of classification has to the object of the legislation
This takes us to two telling aspects which deserve careful examination What are the special factors relied on for classification and what is the legislative goal and then that gut issue what is the correlation between the two  The integral yoga of means and ends is the essence of valid classification
An excellent classification may not qualify for exemption from equality unless it is yoked to the statutory goal
This is the weak link in the Bill
The Objects and Reasons are informative material guiding the court about the purpose of a legislation and the nexus of the differentia if any to the end in view
Nothing about Emergency period is adverted to there as a distinguishing mark
If at all the clear clue is that all abuse of public authority by exalted public men whatever the time of commission shall be punished without the tedious delay which ordinarily defeats justice in the case of top echelons whose crimes affect the credentials of democratic regimes
The Court in Mohammad Shujat Ali  Ors
vs Union of India  Ors
1 has explained the constitutional facet of classification This doctrine recognises that the legislature may classify for the purpose of legislation but requires that the classification must be reasonable
It should ensure that persons or things similarly situated are all similarly treated
The measure of reasonableness of a classification is the degree of its success in treating similarly those similarly situated
1  at 477
562 But the question is what does this ambiguous and crucial phrase similarly situated  mean  Where are we to look for the test of similarity of situation which determines the reason ableness of a classification  The inescapable answer is that we must look beyond the classification to the purpose of the law
A reasonable classification is one which includes all persons or things similarly situated with respect to the purpose of the law  After having stated the general proposition the Court struck a note of warning which is the main crux of the present controversy 1 The fundamental guarantee is of equal protection of the laws and the doctrine of classification is only a subsidiary rule evolved by courts to give a practical content to that guarantee by accommodating it with the practical needs of the society and it should not be allowed to submerge and drown the precious guarantee of equality
The doctrine of classification should not be carried to a point where instead of being a useful servant it becomes a dangerous master for otherwise as pointed out by Chandrachud J in State of Jammu  Kashmir vs Triolki Nath Khosa2 the guarantee of equality will be sub merged in class legislation masquerading as laws meant to govern well marked classes characterised by different and distinct attainments 
That process would inevitably end in substituting the doctrine of classification for the doctrine of equality the fundamental right to equality be fore the law and equal protection of the laws may be replaced by the overworked methodology of classification
Our approach to the equal protection clause must therefore be guided by the words of caution uttered by Krishna Iyer J in State of Jammu  Kashmir vs Triloki Nath Khosa2 Mini classifications based on micro distinctions are false to our egalitarian faith and only substantial and straight forward classification plainly promoting relevant goals can have constitutional validity
To overdo classification is to undo equality  emphasis added Mathew J in Ambica Mills3 placed the same accent from the angle of under inclusion 1 Ibid at 478
2 19741 SCC 19
3 State of Gujarat  Anr
vs Shri Ambica Mills Ltd Ahmedabad  at 782
563 The equal protection of the laws is a pledge of the protection of equal laws
But laws may classify reasonable classification is one which includes all who are similarly situated and none who are not
The question is what does the phrase similarly situated  mean  The answer to the question is that we must look beyond the classification to the purpose of the law
The purpose of a law may be either the elimination of a public mischief or the achievement of some positive public good
A classification is under inclusive when all who are included if in the class are fainted with the mischief but there are others also tainted whom the classification does not include
In other words a classification is bad as under inclusive when a State benefits or burdens persons in a manner that furthers a legitimate purpose but does not confer the same benefit or place the same burden on others who are similarly situated
A classification is over inclusive when it includes not only those who are similarly situated with respect to the purpose but others who are not so situated as well emphasis added Here what is the similarly circumstanced class which according to the mandate of article 14 must be similarly treated  Is there any substantial differentiation between corrupters of public power before and after February 27 1975 or before and after Emergency  Are they not birds of a feather  who must flock together  tried alike and receive the fruits of justice equally  What genetic distinction justifies a dissection between bribe taking ministers of yesterday to day and tomorrow so far as and this is the water mark exemplary immediacy and instant finality of judicial processing are concerned  The prologuic part of the Bill states that the hushed spell of the Emergency ear was haunted by a hundred vampirish villainies which held vital freedoms in thraldom
Fazal Ali J condensed them in State of Rajasthan  Ors etc
vs Union of India etc
  and these observations are borrowed in the Preamble to the Bill and stated 2 that civil liberties were withdrawn to a great extent 3 that important fundamental rights of the people were suspended 4 that strict censorship on the press was placed and 1 19781 SCR 1 at 118
564 5 that the judicial powers were crippled to a large extent The question is not whether the tragic quadruplex of vices did exist we must in law assume they did but what is the substantial linkage between the then prevalent morbid conditions and the unavailability of normal processes of prosecuting corrupt or oppresive administrators in the criminal courts
Where magistrates and Sessions Judges forbidden from taking cognisance of cases of bribery if the accused happened to be ministers or their collaborators  Were criminal misuses of power by high functionaries deleted from the court s jurisdiction  Were witnesses banned from testifying or the police prohibited from investigating  No Top political power wielders had in the past often escaped even after judicial commissions had found a prima facie case against them
The pathology of their escape from the coils of the judical process cannot be misdiagnosed as due only to the Emergency virus
That approach side tracks the solution and serves to continue the sickness
For instance secrecy and authority are the armoury of dubious and arrogant power
The right to know is a fundamental facet of free action and the Official Secrets Act is often a shield of the corrupt
Fearless investigation is a sine qua non of exposure of delinquent greats  and if the investigative agencies tremble to probe or make public the felonies of high office white collar offenders in the peaks may be unruffled by the law
An independent investigative agency to be set in motion by any responsible citizen is a desideratum
These et al are not to be ignored in the incessant din of Emergency Excesses 
The relevancies relied on in the Preamble bearing on Emergency and its nexus to speedier trial may be analysed
Civil liberties were suppressed press censorship was clamped down and judicial powers were curtailed
Assuming civil liberty was a casualty during the Emergency as it was how did it obstruct trials of super political criminals  If faith in democratic institutions is the victim in case there is undue delay in punishing high public and political offenders that holds good regardless of Emergency
Likewise if the Press had been suppressed during Emergency what had that to do with political criminals being brought to book by filing complaints before courts  If judicial powers were crippled by the Proclamation and the follow up notification they affected the High Courts  and Supreme Court s jurisdictions to grant relief against preventive detention or denial of certain freedoms
What had that to do with prompt prosecution in trial courts of high political criminals that perennial post Independence species  If substantial relation between the distinguishing criterion and the goal of the law be the only classificatory justification qualifying for exemp 565 tion from equal treatment
Emergencey does not segregate corrupt ministers and elected caesars into two categories
They are a common enemy with continuity in space and time and for social justice to show up must be tracked down by a permanent statute
Let us view the problem slightly differently
Even if liberty had not been curtailed press not gagged or writ jurisdiction not cut down criminal trials and appeals and revisions would have taken their own interminable delays
It is the forensic delay that has to be axed and that has little to do with the vices of the Emergency
Such crimes were exposed by judicial commissions before involving Chief Ministers and cabinet ministers at both levels and no criminal action followed except now and that of a select group
It was lack of will not Emergency that was the villain of the piece in non prosecution of cases revealed by several Commissions like the Commission of Enquiry appointed by the Government of Orissa in 1967 Mr Justice Khanna the Commission of Enquiry appointed by the Government of JK in 1965 Mr justice Rajagopala Ayyangar the Mudholkar Commission against 14 ex United Front Ministers appointed by the Government of Bihar in 1968 and the T L Venkatarama Aiyar Commission of Inquiry appointed by the Government of Bihar 1970 to mention but some
We need hardly say that there is no law of limitation for criminal prosecutions
Somehow a few manage to be above the law and the many remain below the law
How  I hesitate to state
My point is that high powered public and political offenders are not a peculiar feature of the Emergency but has been a running stream for long and bids fare to flow on sometimes subterraneously sometimes gushing through a mountain gorge
Therefore a corrupt continuity cannot be cut up without better justification
Moreover the human  rights dimensions of article 21 have a fatal effect on legislative truncation of fair procedure
The contribution of Maneka Gandhi case1 to humanization of processual justice is substantial
I do not dilate on this aspect as the leading judgment has dealt with it
The question then is whether there is constitutional rationale for keeping out of the reach of speedy justice non emergency criminals in high public or political offices
Such a Bill were it a permanent addition to the corpus juris and available as a jurisdiction for the public to compel government if a prima facie case were made out even against a minister in office to launch a prosecution before a sitting High 1 1978 1 SCC 248 566 Court Judge would be a wholesome corrective to the spreading evil of corruption in power pyramids
It is apt to recall the words of Mr Justice Khanna Chairman of the Law Commission
  Every system of government requires that those wielding power should use it for public good and should not make it an instrument of self seeking
All power is like a trust
Those who derive it from the people are accountable to show that it has been exercised for the people
To repeat what I said recently abuse of authority by those in power inevitably causes mass disillusionment and results in public frustration
Nowhere is it more true than in a democratic set up because in democracy it is the people themselves who entrust power to those whom they elect
Abuse and misuse of authority can take many forms
It can result in self aggrandisement by the acquisition of more authority by those put in power and the use of that authority for eliminating political and personal opponents
Such abuse of authority paves way to authoritarianism and dictatorship
Power can likewise be abused by making it a source of personal enrichment
Corruption percolates and if those in power at the top turn corrupt we would soon find that corruption and graft become ubiquitous in all spheres of administration at lower levels
Although corruption anywhere is reprehensible developed countries can somehow afford this vice despise it how they may because their economy is already well developed
In the case of developing countries corruption arrests and often retards the process of development and the nation pays a heavy price in terms of loss of moral values
Nothing causes greater public dismay and shakes more the faith of the people in democratic process and undermines their confidence in its working than the sight of these entrusted with power by being elected to office by the people using their authority for self aggrandisement and personal enrichment
Purity of administration has much greater significance in countries recently freed with economies in the process of development
 Having stated the case against the Emergency oriented sub classification I still think that on constitutional principles sanctified by decisions it is possible to sustain or salvage this temporary measure which isolates crimes and criminals during a pernicious period from the rest 1 18th Feroz Gandhi Memorial Lecture
567 who share the same sinister properties
When a salvationary alter native is available the Court should opt for it when the attack is under article 14 provided the assumptions of fact desiderated by the alternatives are plausible not preposterous
The anatomy of the Emergency as X rayed in the Preamble is all dark shadows which when read imaginatively leads to situations plausible even probable and readily presumable
Imagine then the ubiquitous police acting under the inscrutable yet omnipotent powers of the MISA seizing humans allergic to Authority and casting them into interminable incarceration in hidden prisons without any justiciable reasons or for sheer whim  No court to call illegality to other or halt horrendous torture or challenge high handed unreason If this be a potential peril naturally a dangerous situation develops and unaccountable power once unsheathed the inauguration and escalation of such abuse becomes a compulsive continuum
Constitutional tyranny is anathema to decent democracy
In that state of nervous breakdown of the people sans speech sans movement sans security all of which are precariously dependent on a few psychotics in de facto power the right to go to court and prosecute an absolutist in authority for corruption or misuse of power is illusory
If you speak up against crimes in high positions if you complain to court about abuse of power you may be greeted will prompt detention and secret torture with judicial relief jettisoned and Press publicity lock jawed
If these macabre maybes were assumed there could be a noxious nexus between the Emergency season and the sinister crimes covered by this Bill
Maybe these scary assumptions are exaggerated but the Enquiry Reports produced and Fazal Ali J s observations earlier quoted do not permit a Judge to dismiss them as imaginary
It follows that a nexus between the differentia and the object is not too recondite to be inferred
To illustrate briefly may concretise clearly
If an Emergency authoritarian had a criminal deal  cognisable under anti corruption legislation and a knowledgeable citizen did file a complaint in court or a writ petition challenging as mala fide an executive action motivated by graft it was quite on the cards that his way backhome might be diverted into a hospitable lock up or hungry detention camp or horrendous torture cell
If a man s building was broken up by a heartless bulldozer steered by a criminal authoritarian with police fanfare how could information of criminal trespass or grave mischief be laid before the same police or case launched before a magistrate if manacles are the consequence  The rule of law may survive on paper but panicked into hiding where the wages of invocation of the legal process is unquestionable incarceration
You may go to court but be sure Or tenancy in a penitentiary when you come out
These perilous possi 568 bilities might have been exaggerations but had some foundation and fear folds up the book of remedies
Thus the scary scenario of emergency excesses  had a nexus with non action against persons in high against authority and escalation of corruption and repression when judicial checks on abuse had gone to sleep
When men realise
that speech is iron and silence pieces of silver they become deaf and dumb law books notwithstanding
Another good reason for upholding the classification is the legality of the State s power to pick out a hectic phase a hyper pathological period a flash flood and treat that spell alone leaving other like offensive periods well alone because of their lesser trauma
It is a question of degree and dimension
This Court in Ambica Mills 1 observed Mr Justice Holmes in urging tolerance of under inclusive classification stated that such legislation should not be disturbed by the Court unless it can clearly see that there is no fair reason for the law which would not require with equal force its extension to those whom it leaves untouched
What then are the fair reasons for non extension  What should a court do when it is faced with a law making an under inclusive classification in areas relating to economic and tax matters
Should it by its judgment force the legislature to choose between inaction or perfection  The legislature cannot be required to impose upon administrative agencies tasks which cannot be carried out or which must be carried out or a large scale at a single stroke
If the law presumably hits the evil where it is most felt it is not to be overthrown because there are other instances to which it might have been applied
There is no doctrinnaire requirement that the legislation should be couched in all embracing terms See West Coast Hotel Company vs Parrish 2 The Emergency was witness to criminal abuse of power so says the Preamble on a scale unheard of before or after
Therefore this ominous period lends itself to legislative segregation and special treatment
Mr Justice Mathew has explored the jurisprudence of selective treatment as consistent with the pragmatism of eglitarianism
The present Bill is a textbook illustration of the
dictum 3 1  at 783
2   400
3 Gujarat vs Ambica Mills Ltd  at 782 783
569 The piecemeal approach to a general problem permitted by under inclusive classifications appears justified when it is considered that legislative dealing with such problems is usually an experimental matter
It is impossible to tell how successful a particular approach may be what dislocations might occur what evasions might develop what new evils might be generated in the attempt
Administrative expedients must be forged and tested
Legislators recognizing these factors may wish to proceed cautiously and courts must allow them to do so supra
Administrative convenience in the collection of unpaid accumulations is a factor to be taken into account in adjudging whether the classification is reasonable
A legislation may take one step at a time addressing itself to the phase of the problem which seems most acute to the legislative mind
There fore a legislature might select only one phase of one field for application or a remedy1 In may be remembered that article 14 does not require that every regulatory statute apply to all in the same business where q size is an index to the evil at which the law is directed discriminations between the large and small are permissible and is also permissible for reform to take one step at a time ad dressing itself to the phase of the problem which seems most acute to the legislative mind
A legislative authority acting within its field is not bound to extend its regulation to all cases which it might possibly reach
The legislature is free to recognise degrees of harm and it may confine the restrictions to those classes of cases where the need seemed to be clearest see Mutual Loan Co vs Martell 2 In short the problem of legislative classification is a perennial one admitting of no doctrinnaire definition
Evils in the same field may be of different dimensions and proportions requiring different remedies
Or so the legislature may think see Tigner vs Texas 2
Once an objective is decided to be within legislative competence however the working out of classification has been only infrequently impeded by judicial negatives
1 Two Guys from Harrison Allentown vs MeGinley   592
2   180
3310 US 141 
18 978SCI78 570 The Courts attitude cannot be that the state either has to regulate all businesses or even all related businesses and in the same way or not at all
An effort to strike at a particular economic evil could not be hindered by the necessity of carrying in its wake a train of vexatious trouble some and expensive regulations covering the whole range of connected or similar enterprises All or nothing may lead to unworkable rigidity
Principled compromises are permissible in law where non negotiable fundamentals are not tampered with
The Bill in question viewed in this light passes the constitutional test
The fabric of the offences before and during the Emergency is true same the motivation and the texture of the crime is no different But in my view what validates the special legislation is the abnormality of the then conditions the intensive phase of corrupt operations and the inexpediency of digging up old crimes
Ambica Mills supra is the judicial justification for the classification
To sum up the Bill hovers perilously near unconstitutionality article 14 in certain respects but is surely saved by application of pragmatic principles rooted in precedents
Nevertheless justice to social justice is best done by a permanent statute to deal firmly and promptly with super political offenders since these untouchable  and unapproachable  powerwielders have become sinister yet constant companions of Development in developing countries
More remains to be done if the right to know and the right to express and expose are to be real and access to remedies available absent which the rule of law shines in libraries not among the people
A brief reference to Chaganlal Magganlal presenting it in a light somewhat different from the approach made by the learned Chief Justice is apposite before I wind up because there was a strand of argument that if both procedures were substantially fair and equal in their onerous process the provision was beyond constitutional cavil on the score of classificatory discrimination this with great respect is specious
It is understandable that given a valid classification the opportunity for using one or the other alternative procedures is goods a Chaganlal Magganlal
In that case speedy recovery of public property was the basis for grouping and within that group one of two alternative procedures more or less similar in burden or facility was held sound
1 Chaganlal Magganlal P Ltd V Municipal Corporation of Greater Bombay  Ors  571 Absent the initial classifiability on a rational footing related to the goal of easy ejectment Changanlal Magganlal supra would have run a different course
A brief excursion into Chaganlal is desirable here
I do not read Chaganlal in such manner as to make its core redundant
That case first justified the classification on the ground that public property was a class by itself and that differentia had a rational relation to the goal of speedy recovery
Another limb of the Chaganlal ratio is that a valid classification is no passport to oppressive or arbitrary procedure
that is taken care of by holding that the prescribed special procedure is not too onerous
And thirdly within the class picked out for special treatment there is no discrimination because both are substantially fair and similar
To understand that ruling in the sense that once the procedures are substantially equal no question of discrimination and valid classification can arise is to make much of the discussion redundant
To hold the whole discussion relevant we have to view its three limbs holistically
So basic fairness of procedure is necessary
A valid classification with an intelligible differentia and intelligent nexus lo the object is needed
The third part of the triangle is that within the class there should be no possibility of using a more burdensome procedure for one and a substantially different one for another
Arbitrariness in this area also violates article 14
Even in our present case assuming that the facilities under the Bill and under the ordinary Code are equally fair could the Government have indicted one or the other in the ordinary court or the special court on the basis of drawing lots or the first letter of their names the colour of their skins or like non sense  No
The wisdom of article 14 will not tolerate such whim
Classify or perish is the classic test of valid exemption from inflexible equality under the Constitution
Before I conclude I must admit the force of the reasoning in Shinghal J s powerful plea against nominated judges
I am persuaded to the view that the sure solution to the tangled web of problems raised by the Reference consistently with the present object of the Bill is to make the High Court the custodian of the new jurisdiction this suggestion cropped up even as the argument sailed along but counsel for the Union of India assured the Court that respectful consideration not more would be given to the tentative idea expressed from the Bench
The risk of constitutional litigation defeating the purpose of quick justice may well be the price of ignoring the considered suggestion
It is for the wisdom of Parliament to trust the High Courts or the hand picked Judges from the High Courts anl face constitutional adjudication
I 572 say no more
There is something to ponder for those who cherish accountable judicial autonomy in the apprehension expressed by Shinghal J that subtle encroachments on independence of this instrumentally may eventuate in temporising with a fundamental value
While I am impressed with the reasoning of the learned Judge I desist from pronouncing on the Point
I concur with the learned Chief Justice although I give some divergent reasons UNTWALIA J
I fully concur in the opinion delivered by the learned Chief Justice except in regard to one matter which in my view is of a vital and fundamental nature
I therefore proceed to deliver my separate opinion on that question
During the course of the hearing of the Reference to obviate some technical objections raised on behalf of the interveners and others four suggestions Were given by the Court
Three were accepted in writing by the Solicitor General appearing for the Government of India which to all intents and purposes would mean the President
Regarding one we were told that was still under consideration of the Government
It appears to me that the three suggestions of the Court which were accepted were to obviate all possible challenges to the constitutional validity of the Bill on one ground or the other
The fourth one largely concerned the wisdom behind some of the provisions of the legislation
My learned Brother Shinghal J has recorded his separate opinion on a point in connection with which the fourth suggestion was given by the Court just in passing
I do not agree with his opinion and I say so with great respect in that regard
In my opinion the Bill does not suffer from any invalidity on that account
I need not deal with this point in any detail as I respectfully agree with all that has been said in the majority opinion in that respect too
In none of the earlier references answered either by the Federal Court or by this Court a precedent is to be found resembling or identical to what happened in this Special Reference
I see no harm in adopting the method of giving some suggestions from the Court which may obliterate a possible constitutional attack upon the vires of a Bill
It may not be necessary or even advisable to adopt such a course in all References under Article 143 of the Constitution
But if in some it becomes expedient to do so as in my opinion in the instant one it was so I think it saves a lot of public time and money to remove any technical lacuna from the Bill if the Government thinks that it can agree to do so of course the Bill by itself is not a law
It would be a law when passed by the Parliament
But even at the state of the Bill when opinion of this Court is asked for it seems to me quite appro 573 priate in a given case to make some suggestions and then to answer the Reference on the footing of acceptance by the Government of such of the suggestions as have been accepted
Otherwise according to me it is incongruous for this Court to answer the Reference as it is without taking into account the concessions made on behalf of the Government vis a vis the suggestions of the Court
It is manifest that all the three infirmities pointed out in the majority opinion in answer No 3 vanish after the acceptance in writing by the Government that the three suggestions made by the Court vis a vis the alleged three infirmities namely 3a 3b and 3c would be removed from the Bill
I would however like to add without elaborately dealing with the point that as regards the merits of the said infirmities I agree that 3c namely that the absence of a provision for transfer of a case from one Special Court to another makes the procedure unjust or arbitrary
But as at present advised I do not agree that the alleged infirmities 3a and b make the procedure unjust or arbitrary
I have grave doubts whether it is so on that account
Any way in my opinion there is no question of the procedure being unjust or arbitrary in respect of any of the three infirmities a b and F enumerated in answer 3 in view of the acceptance by the Government of India of the suggestions emanating from the Court during the course of the hearing of the reference
l see no difficulty in holding that the Reference stands amended in view of those concessions and we are now required to answer the amended Reference which means the Reference as if the Bill as proposed incorporates the three concessions made by the Government
Thus the procedure prescribed in the Bill undoubtedly becomes just and fair and no longer remains arbitrary in any sense
SHINGHAL J I had the advantage of going through the judgment of my Lord the Chief Justice and I concur with the conclusion arrived at by him in regard to the maintenance of the reference the legislative competence of the Parliament and the arguments which were raised with reference to article 14 of the Constitution
I also agree that the Bill suffers from the three defects mentioned at a to c of sub paragraph 3 of the concluding paragraph of my Lord s judgment
It however appears to me that the question whether the Bill or any of its provisions is otherwise unconstitutional is equally with the scope of the question under reference and requires consideration in the light of the other arguments which have been advanced before us
In fact I am of the opinion that for reasons which follow clauses 5 and 7 of the Bill are in any case constitutionally invalid even if the three offending provisions pointed out by the Chief Justice are amended on the lines stated by learned Solicitor General
574 A reference to the Statement of Objects and Reasons of the Bill shows that it is meant to create additional courts which will exclusively deal  with the class of offences mentioned in it
While justifying the necessity for the creation of such Special Courts it has been stated that the court calendars are congested and powerful accused are capable of causing much delay in the disposal of cases and that it was necessary that the true character of the persons who had held high political or public offices in the Country and had committed offences must be known to the electorate as early as possible if democratic institutions are to survive and political life is to remain clean
 The Preamble of the Bill does not refer to the capacity of the powerful accused to cause much delay in the disposal of cases but refers to congestion of work and recites that there were other reasons for which it could not be reasonably expected that the prosecutions of the persons who had held high public or political offices would be brought to a speedy termination
 It is therefore obvious that if the ordinary criminal courts were not congested with work they would have been allowed to try the cases with some procedural changes referred to in the eighth recital of the Preamble
There is no reference to procedural changes in the Statement of Objects and Reasons and they did not form the basis of that Statement
In any case the reason for excluding the ordinary criminal courts from trying the class of offences referred to in the Bill within their respective jurisdiction in accordance with the provisions of section 177 of the Code of Criminal Procedure 1973 is congestion of work and not their inferior status or incapacity to deal with those cases
The object of the Bill would therefore have been served by the creation of additional courts of the same category as the ordinary criminal courts and the making of any procedural changes which may have been considered necessary in that context to exclude avoidable delay in the trials
There would have been nothing unusual if such additional courts had been created to save the ordinary congested criminal courts from the burden of more work and to bring the contemplated prosecutions to speedy termination
That was permissible under the existing law and it would not have been necessary to introduce the present Bill in Parliament
And even if some procedural changes were considered necessary they could have been worked out within that frame work and incorporated in a different Bill for that limited purpose
But that has not been considered satisfactory and the Bill provides for the creation of Special Courts
 Clauses 2 and 7 which bear on the point under consideration read as follows 575 2
The Central Government shall by notification create adequate number of courts to be called Special Courts
A Special Court shall be presided over by a sitting judge of a High Court in India or a person who has held office as a judge of a High Court in India and nominated by the Central Government in consultation with the Chief Justice of India The Special Courts envisaged in the Bill are therefore courts the like of which has not been provided in the Code of Criminal Procedure or any other law and are in fact unknown to the criminal law of the Country
The question is whether our Constitution envisages the creation of such Courts
Part V of the Constitution deals with The Union while Chapter I thereof deals with The Executive Chapter II deals with Parliament and Chapter IV deals with The Union judiciary
Article 241 provides that there shall be a Supreme Court of India which shall have original appellate and other jurisdiction and powers provided in the subsequent articles in addition to the power to issue directions or orders or writs mentioned in article 32
Article 141 specifically provides that the law declared by the Supreme Court shall be binding on all courts within the Country and article 144 makes it clear that all authorities civil and judicial shall act in aid of the Supreme Court
That Court is therefore the supreme Union Judiciary under the Scheme of the Constitution and Chapter IV of Part V of the Constitution provides all that is necessary for that purpose
Part Vl deals with the States
Chapter II thereof deals with The Executive Chapter III with The State Legislature and Chapter V with The High Courts in the States
 Article 214 provides that there shall be a High Court for each State so that it is not permissible to have two or more High Courts in any state although it is permissible to establish a common High Court for two or more States article 231  
The High Court of a State has thus been assured an unparalleled position in the State or States for which it has been established
Article 225 provides for the jurisdiction of the law administered in any existing High Court and the respective powers of the Judges thereof in relation to the administration of justice in the Court
Article 226 deals with the power of the High Court throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority including in appropriate cases any government within those territories directions orders or writs for the purposes mentioned in clause 1
Article 227 vests the power of superintendence in every High Court 576 over all courts subject to its appellate jurisdiction
Power of withdrawing cases to itself has also been given to the High Court in the circumstances mentioned in article 228
The High Court has thus been vested with all the necessary jurisdiction and powers to stand out as the repository of all judicial authority within the State and it is not contemplated by the Constitution that any civil or criminal court in the State should be outside its control
Then comes Chapter VI which deals with Subordinate Courts in the States
Article 233 provides for the appointment of district judges and article 234 for the recruitment of persons other than district judges to the State Judicial Service
Article 235 vests the control over all district courts and courts subordinate thereto in the High Court The Constitution thus contemplates that all civil and criminal courts in a State other than the High Court shall be no other than the subordinate courts over which the High Court shall exercise the fullest superintendence and control and that the presiding officers of those courts other than the magistrates referred to in article 237 shall be under the control of the High Court and of no other authority
That is in fact necessary to ensure the independence of every court dealing with civil and criminal matters
It may be permissible to create or establish civil and criminal courts in a State with designations other than those expressed in article 236 namely those covered by the expression district judge or by any existing designation in the Codes of Civil and Criminal Procedure but that is far from saying that it is permissible to establish a hierarchy of courts other than that envisaged in the Constitution
The Constitution has thus made ample and effective provision for the establishment of a strong independent and impartial judicial administration in the Country with the necessary complement of civil and criminal courts
It is not permissible for Parliament or a State Legislature to ignore or bypass that Scheme of the Constitution by providing for the establishment of a civil or criminal court parallel to a High Court in a State or by way of an additional or extra or a second High Court or a court other than a court subordinate to the High Court
Any such attempt would be unconstitutional and will strike at the independence of the judiciary which has so nobly been enshrined in the Constitution and so carefully nursed over the years
There is another reason for this view
Articles 233 and 235 provide for the appointment of district judges and other judicial officers in the States
The provisions of these articles have been interpreted by this Court in a number of cases including The State of West Bengal 577 vs Nripendra Nath Bagchi1 Chandra Mohan and others vs State of Uttar Pradesh and others 2 state if Assam etc
vs Rangu Mahammad and others3 The State of Orissa vs Sudhansu Sekhar Misra and others 4 State of Assam and another vs section N Sen and another 5 Shamsher Singh and another vs State of Punjab6 High Court of Punjab and Haryana vs State of Haryana and others etc
7 State of Bihar vs Madan Mohan Prasad and others8 State of Haryana vs Inder Prakash Anand9 and Chief Justice of Andhra Pradesh and others vs L V A Dixitulu and othersix
It has been declared in these decisions that it is the High Court which is the sole custodian of the control over the State Judiciary that is in fact the life blood of an independent judicial administration and the very foundation of any real judicial edifice
For if it were permissible to appoint officers other than those under the control or subordination of the High Court to be presiding officers of civil and criminal courts or in other words if it were permissible to appoint as judges or magistrates persons outside the control of the High Court and answerable to the State Executive that will amount to serious encroachment on a sphere exclusively reserved for the High Court under the constitutional scheme for the laudable and cherished goal of providing an independent judiciary
It may be  that Executive Magistrates and District Magistrates do not belong to the judicial service of a State but their courts are inferior and are amenable to the appellate or revisional jurisdiction of the Courts of Session and the High Court
Even as it is the existence of such courts of Executive Magistrates has not been viewed with favour in the Constitution and article 50 specifically directs that the State shall take steps to separate the judiciary from the executive in the public services of the State
Then there is article 237 which provides that the Governor may by public notification direct that the foregoing provisions of Chapter VI which deal with the subordinate courts and any rules made thereunder shall apply in relation to any class or classes of magistrates ie Executive Magistrates in a State as they apply in relation to persons appointed to the judicial service of the State
It is therefore quite clear that the Constitution has not considered the exis 1  2 3  4  5  6  7  8  9  10 578 tence or continuance of those magistrates who are outside the control of the High Court to be desirable and their continuance cannot be said to be a matter of credit for those concerned
It is beyond any doubt or controversy that the Constitution does not permit the establishment of a criminal court of the status of a court presided over by a district judge as defined in article 235 which is not subordinate to the High Court and as has been shown it does not permit the establishment of a court similar to the High Court or a court parallel to the High Court
It has been argued that section 6 of the Code of Criminal Procedure permits the constitution of criminal courts other than the High Courts and courts of the classes mentioned in the section
Attention has also been invited to section 6 of the Criminal Law Amendment Act 1952 for showing that Special Judges can be appointed as and when necessary
But both these provisions do not justify the argument that Special Courts of the nature contemplated in the Bill can be created under the Scheme of the Constitution
What section of the Code of Criminal Procedure states is that besides the High Court and the courts constituted under any law other than this Code there shall be in every State the classes of criminal courts mentioned in it namely the Courts of Session Judicial Magistrates first class and in any Metropolitan area Metropolitan Magistrates Judicial Magistrates of the second class and Executive Magistrates
So all that the section states is that the five classes of criminal courts stated in it shall be in addition to High Courts  and courts that may be constituted under any other law and it cannot be said with any justification that it provides for the constitution of courts parallel to or on the same footing as the High Courts or of criminal courts which are not subordinate to the High Courts
On the other hand sub section 1 of section 4 of the Code provides that all offences under the Indian Penal Code shall be investigated inquired into tried and otherwise dealt with according to the provisions contained in it
And sub section 2 provides that all offences under any other law shall be investigated inquired into tried and otherwise dealt with according to the same provisions subject only to any enactment for the time being in force regulating the manner or place of investigating inquiring into trying or otherwise dealing with such offences
But that is correlated to clause 4 of section 2 which defines offence to mean any act or omission made punishable by any law for the time being in force including any act in respect of which a complaint may be made under section 20 of the Cattle trespass Act
Section of the Code does not therefore justify the creation of Special Courts of the nature con 579 templated in the Bill and the argument to the contrary is quite untenable
A reference to section 6 of the Criminal Law Amendment Act 1952 is equally futile
While that section provides for the appointment of special Judges for the trial of some offences section 9 specifically provides that the High Court may exercise so far as they may 1 be applicable all the powers conferred by Chapters XXXI and XXXlI of the Code of Criminal Procedure 1898 on a High Court as if the court of the special Judge were a Court of Session trying cases without a jury within the local limits of the jurisdiction of the High Court
 The special Judges appointed under section 6 are therefore subordinate to the High Court and fit in the scheme of the independence of judicial courts and officers contained in the Constitution
An attempt has also been made to justify the provision in the Bill for the creation of Special Courts by a reference to Part XIV A Or the Constitution which provides for the establishment of Administrative Tribunals
But such tribunals are not meant for the trial of offences referred to in the Indian Penal Code and may well be said to be quasi judicial
It will thus appear that the Special Courts contemplated by clause 2 of the Bill will not be on the same footing as the High Courts and will to say the least be lesser or inferior courts
Clause 7 of the Bill however provides that a Special Court shall be presided over by a sitting judge of a High Court and in examining it I have presumed that the Bill will be so amended as to exclude the nomination of a person who has held office as a judge of a High Court as the presiding judge of a Special Court
It will not however be permissible or proper to appoint a sitting Judge of a High Court to preside over a Special Court which is lesser or inferior to the High Court
In all probability sitting judges of High Courts will refuse to serve as presiding judges of the Special Courts and there is no provision in the Constitution under which they can be compelled or ordered against their will to serve there
That eventuality will make the provisions of the Bill unworkable even is it were assumed for the sake of argument that they are otherwise valid and constitutional
At any rate the possibility that the sitting High Court judges may not agree to serve as presiding Judges of the Special Courts is real and their very refusal will embarass the judicial administration and lower the prestige of the judiciary for clause 7 of the Bill provides for the nomination of the presiding judge of a Special 580 Court in consultation with or with the concurrence of  the Chief Justice of India
This is also a factor which should caution those concerned with the Bill and its enactment that it is not only unconstitutional but is not likely to work well and may not serve the avowed purpose of discharging their commitment to the Rule of Law to which reference has been made in the Statement of Objects and Reasons of the Bill
There is another reason for this view
Equality before the law or speaking in terms of the present controversy equality in criminal justice is the universal goal of all democratic forms of government for no one can ever deny that all persons charged with crime must in law stand on the same footing at the Bar of justice
Such an equality should be assured not only between one accused and another but also between the prosecution and the accused
This is not a mere rights explosion but as will appear it is what our Constitution has carefully assuredly and fully provided for every citizen of the Country
Article 21 of the Constitution is by itself enough to bring this out
The article provides that no person shall be deprived of his life or personal liberty except according to procedure established by law
I am here avoiding any reference to article 14 of the Constitution be cause that is not necessary when the scope and the meaning of article 21 have been defined by this Court in a number of decisions including Maneka Gandhi vs Union of India1 It will be enough for me to refer to the following opinion of Chandrachud J as he then was But the mere prescription of some kind of procedure cannot ever meet the mandate of article 21
The procedure prescribed by law has to be fair just and reasonable not fanciful oppressive or arbitrary
The question whether the procedure prescribed by law which curtails or takes away the personal liberty guaranteed by article 21 is reasonable or not has to be considered not in the abstract or on hypothetical considerations like the provision for a full dressed hearing as in a Court room trial but in the context primarily of the purpose which the Act is intended to achieve and of urgent situations which those who are charged with the duty of administering the Act may be called upon to deal with  Bhagwati J undertook a detailed examination of the meaning and content of personal liberty in article 21
He has taken the view 1 1978 2 SCR 621
581 that the expression is of the widest amplitude and it covers a variety A of rights which go to constitute the personal liberty of man
 While examining the procedure prescribed by the  he has expressed his views and the views of the other Judges as follows Is the prescription of some sort of procedure enough or must the procedure comply with any particular requirements Obviously procedure cannot be arbitrary unfair or unreasonable
This indeed was conceded by the learned Attorney General who with his usual candour frankly stated that it was not possible for him to contend that any procedure howsoever arbitrary oppressive or unjust may be prescribed by the law
There was some discussion in A K Gopalan s case in regard to the nature of the procedure required to be prescribed under Article 21 and at least three of the learned Judges out of five expressed themselves strongly in favour of the view that the procedure cannot he any arbitrary fantastic or oppressive procedure
Fazal Ali J who was in a minority went to the farthest limit ill saying that the procedure must include the four essentials set out in Prof Willis  book on Constitutional Law namely notice opportunity to be heard impartial tribunal and ordinary course of procedure
Patanjali Sastri J did not go as far as that but he did say that certain basic principles emerged as the constant factors known to all those procedures and they formed the core of the procedure established by law
 Mahajan J also observed that Article 21 requires that there should be some form of proceeding before a person can be condemned either in respect of his life or his liberty and it negatives the idea of fantastic arbitrary and oppressive forms of proceedings
 But apart altogether from these observations in A K Gopalan s case which have great weight we find that even on principle the concept of reason ableness must be projected in the procedure contemplated by Article 21 having regard to the impact of Article 14 on Article 21 In order to fulfil the guarantee of article 21 the procedure prescribed by law for the trial of a criminal case has therefore to be fair just and reasonable and not fanciful oppressive or arbitrary
Clauses 5 7 and 8 of the Bill however provide as follows 5
On such declaration being made any prosecution in respect of such offence shall be instituted only in a Special 582 Court designated by the Central Government and any pro section in respect of such offence pending in any court in India shall stand transferred to a Special Court designated by the Central Government
A Special Court shall be presided over by a sitting judge of a High Court in India or a person who has held office as a judge of a High Court in India and nominated by the Central Government in consultation with the Chief Justice of India
A Special Court shall have jurisdiction to try any per son concerned in the offence in respect of which a declaration is made under section 4 either as principal conspirator or abettor and all other offences and accused persons as can be jointly tried therewith at one trial in accordance with the Code of Criminal Procedure 1973
 Taken together the clauses provide for the trial of the accused only by Special Courts to be presided over by a judge nominated by the Central Government and clauses 4 5 and 7 vest the power of designating the Special Court in which an accused is to be tried exclusively in that government
Speaking in practical terms the Bill thus enables the Central Government to decide which of its nominated judges shall try which accused or in other words which of the accused will be tried by which of its nominated judges
It has in fact been stated at the Bar by Mr Jethamalani that most of the Special Courts envisaged in the Bill will be located in Delhi
So if several courts arc created by the Central Government in Delhi and they are all presided over by judges nominated by the Central Government the power of nominating the judge for any particular case triable in Delhi shall vest in the Central Government
As will appear such a procedure can not be said to be fair just and reasonable within the meaning of article 21 and amounts to serious transgression on the independence of the Judiciary
Reference has already been made to the scheme provided in the Constitution for the creation of the civil and criminal judicial courts and the independence of the judges and the magistrates presiding over those courts
So far as the Supreme Court and the High Courts are concerned the question of the Central or the State Governments nominating the judge who shall deal with a particular case does not and cannot arise
As regards the subordinate courts section 92 of the Code of Criminal Procedure provides that every Court of Session shall be presided over by a Judge to be appointed by the High Court and section 112 makes a similar provision regarding 583 Judicial Magistrates
The same care has been taken in regard to the A appointment of Chief Judicial Magistrates Additional Chief Judicial Magistrates and Sub divisional Judicial Magistrates and the conferring of powers on Special Judicial Magistrates
It is not therefore permissible for the Executive to appoint a particular judge or magistrate to preside at the trial of a particular accused under the Code of Criminal Procedure
That is fair just and reasonable and relieves the accused of any possible oppression
It has to be appreciated that the problem is of much greater significance in the case of trials before the Special Courts envisaged in the Bill
As is obvious a trial by the fiat of a successor government however justified is noticed with an amount of scepticism
If one may be permitted to say so a successor trial broadly speaking seeks to hit the adversary a second time after his initial discomfiture and displacement from power or authority and in the case of an accused who has held a high political status it may have the effect of destroying his political future
It is by the very nature of things difficult to disabuse the mind of such an accused of the lurking suspicion that the trial is motivated by political considerations and will not be just and fair or to convince him that it will ultimately lead to justice
It should therefore be the effort of those ordering the trial to do nothing that may even remotely justify such a suspicion
They should in fact do all they can to convince every one concerned including the accused that they had the best of intentions in ordering the trial and had provided a fair and straight forward procedure and the cleanest of judges for the trial in an open and fearless manner
that will not only foreclose avoidable criticism but uphold the majesty of the Rule of Law in its true sense Moreover if the result of the trial has to carry conviction with the people as a whole and is meant to acquaint them with the true character of the persons who have committed the offences for the survival of the democratic institutions and cleanliness of the political life as professed in the Statement of objects and Reasons of the Bill i is in the interest of those making the declaration referred to in clause 4 of the Bill to convince everyone including the accused
that the trial is not spectacular in purpose and does not expose those facing it to a risk greater than that taken by any other accused at an ordinary trial under the ordinary law
That kind of assurance that there is no prearranged result and that the accused have nothing to fear from the presiding judge of the Court is the basic requirement of a successor trial
Human dignity is a concept enshrined in the Preamble of our Constitution and runs through all that it provides
It 584 is therefore necessary that this treasure should be the priceless posses s on and the solid hope of all our fellow citizens including those who have to face trials for the offences charged against them
But the clauses of the Bill referred to above are in derogation of the majesty of the judicial edifice so gloriously and assuredly built up by the Constitution and is a serious inroad on the independence of the judiciary
Reference in this connection may be made to Liyanage and others vs Regina1
In that case the appellants were not tried by a judge and jury in accordance with the normal procedure but by three judges of the Supreme Court of Ceylon nominated by the Minister of Justice
A preliminary objection was taken that the nomination and the section under which it was made were ultra vires the Constitution
The three judges of the Supreme Court unanimously upheld the objection on the ground that the power of nomination conferred on the Minister was an interference with the exercise by the judges of the Supreme Court of the strict judicial power of the State vested in them by virtue of their appointment or was in derogation thereof and was a power which had till then been invariably exercised by the judicature as being part of the exercise of the judicial power of the state and could not be reposed in any one outside the judicature
 The law was amended thereafter and it was made permissible for the Chief Justice to nominate the three judges
But the Privy Council on appeal against conviction after the amended provision had taken effect upheld the conclusion of the Supreme Court in principle and held that the power of the judicature could not be usurped or infringed by the executive or the legislature
The Privy Council examined the other objectionable provisions of the amended Act and held that they were invalid
Those provisions are not relevant for purposes of the present case but I cannot help extracting the following note of caution struck by their Lordships What is done once if it be allowed may be done again and in a lesser crisis and less serious circumstances and thus judicial power may be eroded
 An attempt like the one made in the present Bill to usurp an important judicial power and vest it in the executive is a serious inroad on the independence of the judiciary and is fraught with serious consequences
It has therefore necessarily to be put down at the very inception for it may otherwise give rise to a prospect too gruesome to 1  585 envisage and too dangerous to be allowed to have the sanction of law
My answer to the question referred by the President will therefore be that apart from the three defects pointed out by my Lord the Chief Justice clauses S and 7 of the Bill are constitutionally invalid and I would report my opinion accordingly


Summary:
The draft Special Courts Bill 1978 introduced in the Parliament by a private member seeks to create adequate number of courts to be called specialcourts
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 101 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 article 1431 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
Preliminary objections as to the maintainability of the reference were raised on the ground that i the reference was of a hypothetical and speculative character and was vague general and omnibus ii since the Parliament was seized of the Bill it is it6 exclusive function to decide upon the constitutionality of the Bill and if the court withdrew that question for its consideration and report it would be encroaching upon the functions and privileges of the Parliament
iii  if the reference were entertained it would supplant the salutary provision of article 32 of the Constitution iv irrespective of the view expressed by this Court it would be open to the Parliament to discuss the Bill and pass or not to pass it with or without amendment and v the reference raised purely political questions which the court should refrain from answering
 HELD per majority Y V Chandrachud CJ P N Bhagwati R section Sarkaria and section Murtaza Fazal Ali JJ 1
a It is not necessary that the question on which the opinion of this Court is sought under article 1431 must have arisen actually it is competent for the President to make the reference if he is satisfied that the question has 477 arisen or is likely to arise
The plain duty and function of the Court under article 1431 is to consider the question on which the reference i6 made and report to the President its opinion provided the question is capable of being pronounced upon and falls within the powers of the Court to decide
If for any reason the Court considers it not proper or possible to answer the questions 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 viz may in clause 1 and shall in clause 2
Even in matters arising under clause 2 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
502C F b It cannot be said that the reference is of a hypothetical or speculative character on the ground that the Bill has yet to become an Act
The assumption of every reference under article 143 has to be the continued existence of a context or conditions on the basis of which the question of law or fact arises or is likely to arise
But the possibility of a change even of a fundamental change cannot make the exercise of the Presidential jurisdiction under article 143 speculative or hypothetical
In the press It case there is no speculation about the existence of the Bill and there is nothing hypothetical about its contests as they stand today
The Bill may undergo changes in future but so may the Constitution itself including article 143 under which the President has made the reference to this Court
The former possibility cannot make the reference speculative or hypothetical any more than the latter possibility can make it so
The Special Courts Bill is there in flesh and blood for anyone to see and examine
That sustains the reference which is founded upon the satisfaction of the President that a question as regards the constitutional validity of the Bill is likely to arise and that the question i5 of such a nature and of such public importance that it is expedient to obtain the opinion of this Court upon it
503B E l c A reference which does not specify with particularity the ground or grounds on which the Bill or any of its provisions may be open to attack under the Constitution 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 enquiry into the constitutionality of a Bill or an Act
Such a course virtually necessitates the adoption of a process of elimination with regard you all reasonably conceivable challenges under the Constitution
It is not expected of this Court while answering a reference under article 143 to sit up and discover article by article which provision of the Constitution is most lawlessly to be invoked for assailing the validity of the Bill if it becomes a law
Speculative opinions or hypothetical questions are worthless and it is contrary to principle inconvenient and inexpedient that opinions should be given Upl such questions at all
Whenever a reference is made to this Court under Art 143 of the Constitution care should be taken to frame specific questions for the opinion of the Court
In the instant reference it is possible to consider specific questions as being comprehended within the terms of the reference but the risk that a vague and general reference ma
y be returned unanswered is real and ought to engage the attention of those whose duty it is to frame the reference
505 F G 507B d The contention that since the Parliament is seized of the Bill it is its exclusive function to decide upon the constitutionality of the provisions of the 478 Bill betrays a tctal lack of awareness of the scheme ofdivision of powers under the Constitution
The Court is concerned not with fanciful theories based on personal predilections but with the scheme of the Constitution and the philosophy underlying it
The principle is firmly and wisely embedded in the Constitution that the policy of law and the expediency of passing it are matters for the legislature to decide while interpretation of laws and questions regarding their validity fall within the exclusive advisory or adjudicatory functions of Courts 507D E e There is equally no force in the contention that if the Court withdrew the question of validity of the Bill for its consideration while the Bill was pending consideration before the Parliament the Court would be encroaching upon the functions and privileges of Parliament
The President has made a reference under article 1431 and the Court is under a constitutional obligation to consider the reference and report to the President
It cannot be said that any particular function or privilege of the Parliament is encroached upon by this Court
The question whether the provisions of the Bill suffer from any constitutional invalidity falls within the legitimate domain of this Court
Parliament can discuss and debate the Bill but the ultimate decision on the validity of a law has to be that of the Court and not of the Parliament
In the absence of any text or authority showing what the privileges of the British Parliament are in regard to the kind of matter before the Court it is impossible to say that there is a violation of the Parliament s privileges
The aargument that it would be futile to consider the constitutional validity of the Bill because whatever view the Court might take it would still be open to the Parliament to discuss the Bill and to pass or not to pass it proceeds on an unrealistic basis
Although the opinion of this Court can neither deter the Parliament from proceeding with the Bill nor from dropping it it cannot be said that even if the Court holds the Bill as unconstitutional the Parliament would proceed to pass it without removing the defects from which it is shown to suffer
508 F H 510 B f The argument that
the reference raises a purely political question is without force
The policy of the Bill and the motive of the mover may be to ensure a speedy trial of persons holding high public or political office who are alleged to have committed certain crimes relating to the period of emergency
The President however has not asked the Court to advise him as to the desirability of passing the Bill or the soundness of the policy underlying it
The question whether the Bill or any of its provisions are constitutionally invalid is not a question of political nature which the Court should restrain itself from answering The question referred by the President for the opinion of this Court raises purely legal and constitutional issues which is the right and function of this Court to decide
510 D F Clauses 2 6 and 101 of the Bill are within the legislative competence of the Parliament
522H  2
a The challenge to the legislative competence of Provide to provde for the creation of Special Courts is devoid of substance
By virtue of article 2462 read with Entry 1 1A of the Concurrent List 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  of the Bill S therefore within the competence of the Parliament to enact
By cl
101 of the Bill Parliament clearly has the competence to provide that notwith standing anything contained in the Code of Criminal Procedure 1973 an appeal 479 shall lie as of right from any judgment or order of a Special Court to the A 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
517 C D 521 A B b The argument that the constitution having provided copiously for an hierarchy of courts
it is impermissible to the Parliament to create a court or a class of courts which do not fall within or fit in that scheme has no force
There is nothing in the Constitution which will justify the imposition of such a limitation on the Parliament s power to create special courts
The words to Entry 11A are sufficiently wide to enable the Parliament not merely to set up courts of the same kind and designation as are referred to in the relevant provisions but to constitute and organize that is to say create new or special courts subject to the limitation mentioned in the entry as regards the Supreme Court and the High Courts
524 AD c It is not correct to say that by reason of the fact that the Special Courts will not have the constitutional status of High Courts nor are they District Courts within the meaning of article 235 the creation of Special Courts is calculated to damage or destroy the constitutional safeguards of judicial independence
524F 3
a The classification provided for by the Special Courts Bill is valid and no objection can be taken against it
537E b The promulgation of emergency is not and cannot be a matter of normal occurrence in a nation s life
Offenses 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 utilized the high public or political offices held by them as a cover for committing those offenses
This Court is not concerned with the truth or otherwise of the allegations the narrow question before it being whether in the first instance the classification is based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out
The answer to that question can be one and one only namely that offenses alleged to have been committed during the emergency by persons holding high public or political offices in India stand in a class apart
The cover of emergency provided a unique opportunity to the holders of such offices to subvert the rule of law and perpetrate political crimes on the society
Others left out of that group had neither the means nor the opportunity to do so since they lacked the authority which comes from official position
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
538 B 540 A D c Crimes falling outside the group are of a basically different kind and have generally a different motivation
No advantage can be taken of the suppression of human freedom when the emergency is not in operation
The suppression of people s liberties facilitates easy commission of crimes when public criticism is suppressed there is no fear of detection
Crimes which are alleged to have been committed during emergency are oblique in their design and selective in their object
They are generally designed to capture and perpetuate political power and they are broadly directed against political opponents
The holder of a high public office who takes a bribe does it to enrich himself
Though that deserves the highest condemnation such crimes are not woven out of the warp and woof of political motivation
Equal laws have to be 480 applied to all in the same situation and the legislature is free to recognize the degree of harm or evil
Purity in public life is a desired goal at all times and in all situations
But this Court cannot sit as a super legislature and 6trike down the classification on the ground of under inclusion on the score that those others are left untouched so long as there is no violation of constitutional restraints
540 E H d If the classification is valid and its basis bears a reasonable relationship with the object of the Bill no grievance can be entertained under article 14
Classification necessarily entails the subjection of those who fall within it to a different set of rules and procedure which may conceivably be more onerous than the procedure which generally applies to ordinary trials
In almost all of the decisions bearing on the questions which arise for consideration the especial procedure prescribed by the particular laws was distinctly more onerous than the procedure which governs ordinary trials
But once a classify cation is upheld by the application of the dual test subjection to harsher treatment or disadvantageous procedure loses its relevance the reason being that for the purposes of article 14 unequals cannot complain of unequal treatment
Classification necessarily implies discrimination between persons classified and those who are not members of that class
It is the essence of a classification that upon the class are cast duties and burdens different from those resting upon the general public
The very idea of classification is that of inequality so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality
Some of the provisions of the Bill cast upon the accused before the Special Court certain disadvantages as compared with the accused who are put up for trial before the ordinary courts even as some other provisions give to them certain advantages which are denied to others
542 E H The State of West Bengal vs Anywhere Ali Sarkar   Kathy Raning Rawat vs The State of Saurashtra   Lachmandas Kewalram Ahuja  Anr
vs the Slate of Bombay 1952 SCR 710 Syed Qasim Razvi vs The State of Hyderabad  Ors  Habeeb Mohamed vs The State of Hyderabad 1953 SCR 661 Rao Shiv Bahadur Singh  Anr
vs The State of Vindhya Pradesh   Kedar Nath Bajoria vs The State of West Bengal   Asgarali Nazarali Singaporawalia vs The State of Bombay   referred to
e The grouping1g together of persons who are alleged to have committed offences during the period of emergency with others who are alleged to have engaged themselves in screening certain offenders prior to the declaration of emergency is tantamount to clubbing together in the same class persons who do not possess common qualities or characteristics
It is unquestionably reasonable for the legislature to thinly that the suppression of human liberties during the period of emergency furnished an opportunity to persons holding high public or political offices to commit crimes of grave magnitude which were calculated to destroy democratic values
Offences alleged to have been committed during the period of emergency can be treated as sui generis
The same cannot however be said of activities which preceded the declaration of emergency
Those doings were open to public criticism and were unprotected by the veil of emergency
The validity of a classification should be tested by broad considerations particularly when the charge is one of under inclusiveness
But 481 persons possessing widely differing characteristics in the context of their situation 1 in relation to the period of their activities cannot by any reasonable criterion be herded in the same class
The ante dating of the emergency as it were from June 25 to February 27 1975 is wholly unscientific and proceeds from irrational considerations arising out of a supposed discovery in the matter of screening of offenders
The inclusion of offences and offenders in relation to the period from February 27 to June 25 1975 in the same class as those whose alleged unlawful activities covered the period of emergency is too artificial to be sustained
545 C H f The answer to the question whether those who are alleged lo have committed offences prior to the emergency can be put in the same class as persons who are alleged to have committed offences during the period of emergency has to be in the negative
546 c g The classification provided for by cl
41 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
The classification is invalid in so far as it covers offences committed by such persons between February 27 and June 25 1975
No declaration can therefore be made by the Central Government in regard to those offences and offenders under the present classification
546 D h  As regards those who are rightly grouped together since the classification is valid it is unnecessary for the purposes of article 14 to consider whether the procedure prescribed by the Bill is more onerous then the ordinary procedure
The onerousness of the special procedure would be irrelevant in considerations arising under article 14 for the reason that the classification is valid to the extent indicated
But the Bill has got to meet the challenge of other provisions of the Constitution also in so far as any particular provision is attracted
a There is no provision in the Bill for the transfer of cases from one Special Court to another
Absence of such a provision may undermine the confidence of the people in the Special Courts
The manner in which a Judge conducts himself may disclose a bias or 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
To compel an accused to submit to the jurisdiction of a court which in fact is biased or is reasonably apprehended to be biased is a violation of the fundamental principles of natural justice and a denial of fair play
In yet another case expediency or convenience may require the transfer of a case even if no bias is involved
549D E b The provision for the appointment of a sitting High Court Judge as Judge of the Special Court is open to no exception
Though unquestionably retired Judges of High Courts occupy a position of honour and respect in society 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
A retired Judge presiding over a Special Court who display strength and independence may be frowned upon by the 482 Government and there is nothing to prevent it from terminating his appointment as and when it likes
There is no force in the submission that if the appointment has to be made in consultation with the Chief Justice of India the termination of the appointment will also require similar consultation
The obligation to consult may not necessarily act as a check on an executive which is determined to remote an inconvenient incumbent
549 H 550 B E c Clause 7 of the Bill violates article 21 of the Constitution to the extent that a person who has held office as a Judge of the High Court can be appointed to preside over a Special Court merely in consultation with the Chief Justice of India
550 E d Yet another infirmity from which the procedure prescribed by the Bill suffers is that the only obligation which cl 7 imposes on the Central Government while nominating a person to preside over the Special Court is to consul the Chief Justice of India
One must look at the matter not so much from the point of view of the Chief Justice of India nor indeed from the point of view of the Government as from the point of view of the accused and the expectation and sensitivities of the society
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 should inspire the confidence not only of the accused but of the entire community
Administration of justice has a social dimension and the society at large has a stake in impartial and even handed justice
550 H 551 A B 5
The fact that the trial is to be held by no less a person than a Judge of a High Court and there is a right of appeal to this Court are salient safeguards of the Bill
552 H 6
The question as to whether the opinion rendered by this Court in the exercise of its advisory jurisdiction under article 1431 of the Constitution is binding as law declared by this Court within the meaning of article 141 of the Constitution may have to be considered more fully on a future occasion but it is to be hoped that the time which has been spent in determining the questions arising in this reference shall not have been spent in vain
Though it is always open to this Court to re examine the question as already decided by it and to over rule if necessary the view earlier taken by it insofar as all other courts in the territory of India are concerned they ought to be bound by the view expressed by this Court even in the exercise of its advisory jurisdiction under article 1431 of the Constitution
In St Xaviers College it was pointed jut that even if the opinion given in the exercise of advisory jurisdiction may not he binding it is entitled to great weight
It would be strange that a decision given by this Court on a question of law in a dispute between two private parties should be binding on all courts in this country but the advisory opinion Should bind no one at all even if as in the instant case it is given after issuing notice to all interested parties after hearing everyone concerned who desired to be heard and after a full consideration of the questions raised in the reference
Almost everything that could possibly be urged in favour of and against the Bill was urged before this Court and to think that its opinion is an exercise in futility is deeply frustrating
553 D G Estate Duty Bill  320 332 341 UP Legislative Assembly   446 47 St Xaviers College 19751 1 SCR 173 201 202 Attorney General for Ontario vs Attorney General 483 for Canada  589 Ram Kishore Sen vs Union of India AIR 1965 Cal 282 Chhabildas Mehta vs The Legislative Assembly Gujarat State 1970 II Gujarat Law Reporter 729 The Province of Madras vs Messrs Boddu Paidanna  Central Provinces case  Constitutional Law of India by H M Seervai 2nd Edn
II page 1415 para 2568 referred to
Investing the High Courts with jurisdiction to try cases under the Bill may B in the circumstances afford the best solution from every point of view
The Chief Justices of High Courts will in their discretion assign and allocate particular cases to Judges of their courts
To avoid delays and to ensure speedier trial no other work may be assigned to the High Court Judge nominated by the Chief Justice to try a case or cases under the Bill
This will obviate the nomination by the Central Government of a particular Judge to try a particular case
554 C D Answers to the reference are as follows 1 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 the Supreme Court
Clauses 2 and 101 of the Bill are therefore within the Parliament s legislative competence 554G H 2 The classification provided for in cl
41 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 offences 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
It is therefore not competent to the Central Government to make a declaration under cl 4l of the Bill in respect of persons who are alleged to have committed offences between February 27 1975 and June 25 1975
555 A C 3 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 cl
41 of the Bill is just and fair except in regard to the following matters a the provision in cl 7 of the Bill under which a retired Judge of the High Court can be appointed as a Judge of the Special Court b the provision in cl 7 under which the appointment of a Judge lo the Special Court can be made by the Central Government in consultation with but without the concurrence of the Chief Justice of India and c the absence of a provision for transfer of a case from one Special Court to another
d The Bill is valid and constitutional in all other respects
555 D E KRISHNA IYER
J Concurring 1
Corruption and repression hijack development processes and in the long run lagging national progress means ebbing people s constitutional in constitutional means to social justice
And so to track down and 484 give short shrift to these heavy weight criminaloids who often mislead the people by public moral weight lifting and multipoint manifestoes is an urgent legislative mission partially undertaken by the Bill under discussion
To punish such super offenders in top positions sealing off legalistic escape routes and dilatory strategies and bringing them to justice with high speed and early finality is a desideratum voiced in vain by Commissions and Committees in the past and is a dimension of the dynamics of the Rule of Law
This Bill breaks new ground contrary to people s resigned cynicism that all high powered investigations reports and recommendations end in legislative and judicative futility that all these valient exercises are but sound and fury signifying nothing
557 A B 2
a An Act of this nature with the major changes mentioned by the Chief Justice to avert collision with Al t
21 and with wider coverage to come to terms with article 14 is long overdue
577 G H b These offenders perfectly fill the constitutional bill as a separate class which deserves speedy prosecution and final punishment by high judicial agencies if restoration of the slumping credence in the constitutional order and democratic development were to be sustained among the masses in Third World countries
The Preamble to the Bill is revelatory of this orientation
558 Cl c There is a reasonable classification implicit in this legislation but it is perilously near being under inclusive and
therefore unequal
For it is a truncated projection of a manifestly wider principle that exalted offenders shall be dealt with by the criminal law with emergent speed so that the common man may knew that when public power is abused for private profit or personal revenge the rule of law shall rapidly run them down and restore the faith of the people in democratic institutions through speedy justice according to law
It is in this sense that very important persons wielding large administrative powers shall with quick despatch be tried anl punished if guilty
Prompt trial and early punishment may be necessary in all criminal cases
But raw realism suggests that in a decelerating situation of slow motion justice there is a special case for speedier trial and
prompter punishment where the offender sits at the top Or the administrative pyramid
558 H 559 A C d The Bill must fail morally if it exempts non Emergency criminals about whom prior Commission Reports bear witness
In this larger perspective emergency  is not a substantial differential and the Bill nearly recognises this by ante dating the operation to February 27 1975 when there was no emergency 
559 G 3
The procedure of criminal courts is dilatory there are appeals upon appeals and revisions and supervisory jurisdiction baffling and baulking speedy termination of prosecutions not to speak of the contribution to delay by the Administration itself by neglect of the basic necessaries of the judicial process
Leaving VVIP accused to be dealt with by the routinely procrastinating legal process is to surrender to interminable delays as an inevitable evil
Therefore the Court should not be finical about absolute processual equality and must be creative in innovating procedures compelled by special situations
559H 4
a The idiom of article 14 is unmistakeable
The power status of the alleged criminal the nature of the alleged crime vis a vis public confidence and the imperative need for speedy litigative finality are the telling factors
Every difference is not a difference Speedy trial  of offences of a public nature committed by persons who have held high public or political offices in the 485 country and others connected with the commission of such offences  is the heart of the matter
560 D b During that hushed spell many suffered shocking treatment
In the words of the Preamble of the Bill civil liberties were withdrawn to a great extent important fundamental rights of the people were suspended strict censorship on the press was placed and judicial powers were curtailed to a large extent
560 F Murthy Match Works etc etc
vs The Asstt
Collector of Central Excise etc
  at 130 referred to
c The objects and reasons are informative material guiding the court about the purpose of a legislation and the nexus of the differentia if any to the end in view
Nothing about Emergency period is adverted to there as a distinguishing mark
The clear clue is that all abuse of public authority by exalted public men shall be punished without the tedious delay in the case of top echeolns
561 F Mohammad Shujat Ali  Ors
vs Union of India  Ors
  at 477 State of Gujarat  Anr
vs Shri Ambica Mills Ltd Ahmedabad 19741 3 SCR 760 at 782 referred to d Civil liberties were suppressed
press censorship was clamped down and judicial powers were curtailed
Even if liberty had not been curtailed press not gagged or writ jurisdiction not cut down
criminal trials and appeals and revisions would have taken their own interminable delays
It is the forensic delay that has to be axed and that has little to do with the vices of the Emergency
There is no law of limitation for criminal prosecutions
B e High powered public and political offenders are not a peculiar feature of the Emergency but has been a running stream for long and bids fair to flow on therefore a corrupt continuity cannot be cut up without better justification
565 E F f The question then is whether there is constitutional rationale for keeping out of the reach of speedy justice non emergency criminals in high public or political offices
Such a Bill were it a permanent addition to the corpus juris and available as a jurisdiction for the public to compel government if a prima facie case were made out even against a minister in office to launch a prosecution before a sitting High Court Judge would be a wholesome corrective to the spreading evil of corruption in power pyramids
565 G H g On constitutional principles it is possible to sustain this temporary measure which isolates crimes and criminals during a pernicious period from the rest who share the same sinister properties
When a salvationary alternative is available the Court should opt for it when the attack is under article 14 provided the assumptions of fact desiderated by the alternatives are plausible not preposterous
The anatomy of the Emergency as X rayed in the Preamble hi all dark shadows
No court to call illegality to order or halt horrendous torture or challenge high handed unreason
If this be a potential peril naturally a dangerous situation develops and unaccountable power once unsheathed the inauguration and escalation of such abuse becomes a compulsive continuum
Constitutional tyranny is anathema to decent democracy
In that state of nervous breakdown of the people the right to go to court and prosecute an absolutist in authority for corruption dr misuse of power is illusory
If 486 you speak up against crimes in high positions if you complain to court about abuse of power you may be greeted with prompt detention and secret torture with judicial relief jettisoned and Press publicity loc jawed If these macabre maybes were assumed there could be a noxious nexus between the Emergency season and the sinister crimes covered by this Bill
It follows that a rexus between the differentia and the object is not too recondite to be inferred
567 A B h The scary scenario of emergency excesses  had a nexus with non action against persons in high against authority and escalation of corruption and repression then judicial checks on abuse had gone to sleep
563 A B i The fabric of the offences before and during the Emergency is the same
What validates the special legislation is the abnormality of the then conditions the intensive phase of corrupt operations and the inexpediency of digging up old crimes
Ambica Mills supra is the judicial justification for the classification
570C 5
a The Bill hovers periliously near unconstitutionality article 14 in a certain respects but is surely saved by application of pragmatic principles rooted in precedents
Nevertheless justice to social justice is best done by a permanent statute to deal firmly and promptly with super political offenders since these untouchable  and unapproachable  power wielders have become sinister yet constant companions of Development in developing countries
570 E Chaganlal Maganlal P Ltd vs Municipal Corporation of Greater Bombay  Ors 1975 I SCR 1 referred to
b Basic fairness of procedure is necessary
A valid classification with an intelligible differentia and intelligent nexus to the object is needed
Within the class there should be no possibility of using a more burdensome procedure for one and a substantially different one for another
Arbitrariness in this area also violates article 14
571 D c Assuming that the facilities under the Bill and under the ordinary Code are equally fair could the Government have indicated one or the other in the ordinary court or the special court on the basis of drawing lots or the first letter of their names the colour of their skins or like non sense  No
The wisdom of article 14 will not tolerate such whim
Classify or perish is the classic test of valid exemption from inflexible equality under the Constitution
571 E F d The sure solution to the problems raised by the Reference consistently with the present object of the Bill is to make the High Court the custodian of the new jurisdiction
571G UNTWALIA J concurring with the majority 1
In none of the earlier references answered either by the Federal Court or by this Court a precedent is to be found resembling or identical to what happened in this Special Reference
There is no harm in adopting the method of giving some suggestions from the Court which may obliterate a possible constitutional attack upon the vires of a Bill
It may not be necessary or even advisable to adopt such a course in all References under article 143 of the Constitution
But if in some it becomes expedient to do so as in the instant one it was so it saves a lot of public time and money to remove any technical lacuna from the Bill if the Government thinks that it can agree to do so
The Bill by itself is not a law
It would be a law would passed by the Parliament
487 But even at the stag of the Bill when opinion of this Court is asked for it A seems quite appropriate in a given case to make some suggestions and then to answer the Reference on the footing of acceptance by the Government of such of the suggestions as have been accepted
Otherwise is incongruous for this Court to answer the Reference as it is without taking into account the concessions made on behalf of the Government vis a vis the suggestions of the Court
It is manifest that all the three infirmities pointed out in the majority opinion m answer No 3 vanish after the acceptance in writing by the Government that the three suggestions made by the Court vis a vis the alleged three infirmities namely 3b and 3c would be removed from the Bill
572 D A 2
The absence of a provision for transfer of a case from one Special Court to another makes the procedure unjust or arbitrary
But the alleged infirmities 3a and b do not make the procedure unjust or arbitrary
There is no question of the procedure being unjust or arbitrary in respect of any of the three infirmities a b and c enumerated in answer 3 in view of the acceptance by the Government of India of the suggestions emanating from the Court during the course of the hearing of the Reference
The Reference therefore stands amended in view of those concessions and the court is now required to answer the amended Reference which means the Reference as if the Bill as proposed incorporates the three concessions made by the Government
Thus the procedure prescribed in the Bill undoubtedly becomes just and fair and no longer remains arbitrary in any sense
573 C D SHlNGHAL J Dissenting Clauses 5 and 7 of the Bill ale unconstitutional and invalid
573H 1
a The reason given in the Statement of Objects and Reasons of the Bill for excluding the ordinary criminal courts from trying the class of offences referred to therein is congestion of work and not their inferior status or in capacity to deal with those cases
That object of the Bill would have been served by the creation of additional courts of the same category as the ordinary criminal courts and the making of any procedural changes which may have been considered necessary in that context to exclude avoidable delay in the trial
1574 F b There would have been nothing unusual if such additional courts had been created to save the ordinary criminal courts from the burden of more work and to bring the contemplated prosecutions to speedy termination
That was permissible under the existing law
Even if some procedural changes were considered necessary they could have been worked out within the framework of the law
The special courts envisaged in the Bill are however courts the like of which has It been provided in the Code of Criminal Procedure or any other law and are in fact unknown to the Criminal law of the country
574 G c The Constitution contemplates that all civil and criminal courts in State other than the High Court shall be no other than the Subordinate Courts over which the High Court shall exercise the fullest superintendence and control and that the presiding officers of those courts shall be under the control of the High Court and of no other authority
That is necessary to ensure the independence of every court dealing with civil and criminal matters
576 D d It may be permissible to create or establish civil and criminal courts in a state with designations other than those expressed in article 236 or any existing designation in the Codes of Civil and Criminal Procedure
but that is far 488 from saying that it is permissible to establish a hierarchy of courts other than that envisaged in the Constitution
576 E 2
a The Constitution has made ample and effective provision for the establishment of a strong independent and impartial judicial administration in the country with the necessary complement of civil and criminal courts
it is not permissible for Parliament or a state Legislature to ignore or bypass that scheme of the Constitution by providing for the establishment of a civil or criminal court parallel to a High Court in a state or by way of an additional or extra or a second High Court or a court other than a court subordinate to the High Court
Any such attempt would be unconstitutional and would strike at the independence of the judiciary which he so nobly been enshrined in the Constitution and so carefully nursed over the years
576 G b The Constitution provides for the appointment of district judges and other judicial officers in the States
In a large number of cases this Court had declared that it is the High Court which is the sole custodian of the control over the State Judiciary which in fact is the life blood of in independent judicial administration and the very foundation of any real judicial edifice The Constitution has not considered even the existence or continuation of Magistrates who are outside the control of the High Court to be desirable
It is beyond doubt that the Constitution does not permit the establishment of a criminal court of the status of a court presided over by a District Judge which is not subordinate to the High Court and does not permit the establishment of a court similar to the High Court or a court parallel to the High Court
577 C 578 A B The State of West Bengal vs Nripendra Math Bagchi   Chandra Mohan and others vs State of UP  Ors  State of Assam etc
vs Ranga Mohammad  Ors 1967 J SCR 454 The State of Orissa vs Sudhansu Sekhar Misra  Ors 968 2 SCR 154 State of Assam  Anr
N Sen  Anr   Shamsher Singh  Anr
vs State of Punjab   High Court of Punjab  Haryana vs State of Haryana  Ors
etc 1975 SCR 365 State of Haryana vs Inder Prakash Anand   Chief Justice of Andhra Pradesh  Ors
vs L V A Dixitulu  Ors referred to
c Neither section 6 of the Code of Criminal Procedure 1973 nor section 6 of the Criminal Law Amendment Act 1952 justifies the argument that special courts of the nature contemplated in the Bill would be created under the scheme of the Constitution
Although section 6 of the Code of Criminal Procedure states that the five classes of criminal courts stated in it shall be in addition to the High Court and courts that may be constituted under any law it cannot be said that it pro ides tor the constitution of courts parallel to or on the same footing as the High Court or of criminal courts which are not subordinate to the High Courts Similarly special judges appointed under section 6 of the Criminal Law Amendment Act are subordinate to the High Court and fit in the scheme of the independence of the judiciary envisaged by the Constitution
578 E Fl d The attempt to justify the creation of special courts by reference to Part XIVA of the Constitution which provides for establishment of administrative Tribunals cannot be sustained because such Tribunal are not meant for the trial of offences referred to in the Indian Penal Code
They may well be said to be quasi judicial Tribunals 579 D 489 e The Special Courts contemplated by clause 2 of the Bill will not be on the same
footing as the High Courts and will to say the least be lesser or inferior courts
1579 E f Clause 7 of the Bill provides that a special court shall be presided over by a sitting judge of a High Court but it will not be permissible or proper to do so as that court is lesser and inferior to a High Court
In all probability sitting judges of High Courts will refuse to serve as presiding judges of special Courts and there is no provision in the Constitution under which they can be compelled or ordered against their will to serve there
That eventuality will make the provisions of the Bill unworkable
At any rate the possibility that the sitting High Court Judges may not agree to serve as presiding judges of Special Courts is real and their very refusal will embarrass the judicial administration and lower the prestige of the judiciary for clause 7 of the Bill provides for their nomination in consultation with the Chief Justice of India
579 F H 3
a Equality before the law or speaking in terms of the present controversy equality in criminal justice is the universal goal of all democratic forms of government for no one can ever deny that all persons charged with crime must in law stand on the same footing at the Bar of justice
That equality should be assured not only between one accused and another but between the prosecution and the accused
That is what the Constitution has carefully assuredly and fully provided for every citizen
Article 21 is by itself enough to bring that out
580 C D b In order to fulfil the guarantee of article 21 the procedure prescribed by law for the trial of criminal cases has to be fair just and reasonable and not fanciful oppressive or arbitrary
Taken together clauses S 7 and 8 of the of Bill provide for the trial of the accused only by special courts to be presided over by a judge nominated by the Central Government and clauses 4 5 and 7 vest the power of designating the special court in which an accused is to be tried exclusively in that Government
The Bill enables the Central Government to decide which of the accused will be tried by which of its nominated judges
Thus if several special courts are created by the Central Government in Delhi and they are all presided over by judges nominated by the Central Government the power of nominating the judge for any particular case treble in Delhi shall vest in the Central Government
Such a procedure cannot be said to be fair just and reasonable within the meaning of article 21 and amounts to serious transgression on the independence of the judiciary
581 G 587 D F c The question of the Central Government or the State Government nominating a judge of the Supreme Court or of the High Court for dealing with a particular case does not and cannot arise
So too in regard to the judges and magistrates of the subordinate courts sufficient safeguards have been provided in the relevant laws for their appointment by the High Court
It is not permissible for the executive to appoint a particular judge or magistrate to preside over the trial of a particular accused under the Code of Criminal Procedure
That is fair just and reasonable and relieves the accused of any possible oppress on
1583 A Bl d Moreover in the case of trials before special courts the trial by the fiat of a successor government however justified is noticed with scepticism The suspicion that the trial is motivated by political considerations that it would not be just and fair or that it would lead to injustice would be lurking 13 978SCI78 490 in the mind of the accused
It is therefore necessary that everyone concerned including the accused should be convinced that the executive had the best of intentions in ordering the trial and had provided for a fair and straight forward procedure and the cleanest of judges for the trial in an open and fearless manner
583 CE e If the result of the trial has to carry conviction with the people as a whole and is meant to acquaint them with the true character of the persons who have committed the offences for the survival of the democratic institutions and cleanliness of the political life as professed in the statement Of Objects and Reasons of the Bill it is in the interest of those making the declaration under clause 4 to convince everyone including the accused that the trial is not spectacular in purpose and does not expose those facing it to a risk greater the that taken by any other accused at an ordinary trial under the ordinary law
Human dignity is a concept enshrined in the Constitution and this treasure should be the priceless possession and solid hope of all our fellow citizens
including those who have to face trials for offences charged against them
583 F H f An attempt like the one made in the present Bill to usurp an important judicial power and vest it in the executive is a serious inroad of the Independence of the judiciary and is fraught with serious consequences
It has there fore to be put down at the very inception for it may otherwise give rise to a prospect too gruesome to envisage and too dangerous to be allowed to have the sanction of law
584 H Liyanage  Ors
vs Regina  referred to