In Re: The Special Courts Bill, 1978 Vs.
[1978] INSC 247 (1 December 1978)
ACT: Constitution of India-Art. 143 - Scope
of.
Special Courts Bill-Parliament if has power
to enact the Bill-Whether any of its provisions violate the rights under
Articles 14 and 21.
HEADNOTE:
The draft Special Courts Bill 1978 introduced
in the Parliament by a private member seeks to create adequate number of courts
to be called special courts. The Bill provides that a special court shall take
cognizance of or try such cases as are instituted before it or transferred to
it in the manner provided therein. If the Central Government is of opinion that
there is prima facie evidence of the commission of an offense alleged to have
been committed during the period of Emergency by a person who held high public
or political office in India and that the said offense ought to be debit with
under the Act, it shall make a declaration to that effect in every case in
which it is of that opinion. A declaration made by the Central Government cannot
be called in question in ;my court. Clause (7) of the Bill provides that a
special count shall be presided over by a sitting Judge of a High Court in
India or a person who has held the office as a Judge of a High Court in India
and nominated by the Central Government in consultation with the Chief Justice
of India. Clause 10(1) provides that notwithstanding anything contained in the
Code of Criminal Procedure, an appeal shall lie as of right from any judgment
or order of a special court to the Supreme Court of India both on fact and on
law The President made a reference to the Supreme Court under Art. 143(1) of
the Constitution for consideration of the question whether the Special Courts
Bill 1978 or any of its provisions, if enacted would be constitutionally
invalid.
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 Art. 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, C.J.,
P. N. Bhagwati, R. S. Sarkaria and S. Murtaza Fazal Ali, JJ.]
1. (a) It is not necessary that the question
on which the opinion of this Court is sought under Art. 143(1) 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 Art. 143(1) 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 Art. 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 Art. 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 Art. 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 Art. 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 Up.l 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 may 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 total
lack of awareness of the scheme of division 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 Art. 143(1) 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 a,argument 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 10(1) of the Bill
are within the legislative competence of the Parliament. (522H ]
2. (a) The challenge to the legislative
competence of Provide to provide for the creation of Special Courts is devoid
of substance. By virtue of Art. 246(2) 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. 10(1) of the Bill Parliament clearly has the
competence to provide that notwithstanding 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 A&D] (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 Art. 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 Art. 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 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 Art. 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 a.re 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 v. Anywhere Ali Sarkar, [1952] SCR 284; Kathy
Raning Rawat v. The State of Saurashtra, [1952] SCR 435; Lachmandas Kewalram
Ahuja & Anr. v. the Slate of Bombay, (1952] SCR 710; Syed Qasim Razvi v.
The State of Hyderabad & Ors., [1953] SCR 589;
Habeeb Mohamed v. The State of Hyderabad,
[1953) SCR 661; Rao Shiv Bahadur Singh & Anr. v. The State of Vindhya
Pradesh, [1953] SCR 1188; Kedar Nath Bajoria v.
The State of West Bengal, [1954] SCR 30;
Asgarali Nazarali Singaporawalia v. The State of Bombay, [1957] SCR 678;
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. 4(1) of the Bill is valid to the limited extent to which the Central
Government is empowered to make the declaration in respect of offences alleged
to have been committed during the period of emergency, by persons holding high
public or political offices. 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 Art. 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 Art. 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. [546 F: 547 D]
4. (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 Art. 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 Art. 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 Art.
143(1) of the Constitution is binding as law declared by this Court within the
meaning of Art. 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 Art. 143(1) 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,
[1944] FCR 317, 320, 332, 341;
U.P. Legislative Assembly, [1965] 1 SCR 413,
446-47;
St. Xaviers College, [19751 1 SCR 173,
201-202;
Attorney-General for Ontario v.
Attorney-General 483 for Canada, [1912] AC 571, 589; Ram Kishore Sen v.
Union of India, AIR 1965 Cal. 282; Chhabildas
Mehta v.
The Legislative Assembly Gujarat State, 1970
II Gujarat Law Reporter 729; The Province of Madras v. Messrs Boddu Paidanna,
[1942] FCR 90; Central Provinces case, [1939] FCR 18; Constitutional Law of
India by H. M.
Seervai, 2nd Edn. Vol. II, page 1415, para
25.68, referred to.
Investing the High Court’s 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 10(1) of the Bill are, therefore, within the Parliament's legislative
competence;
[554G-H] (2) The classification provided for
in cl. 4(1) of the Bill is valid to the extent to which the Central Government
is empowered to make a declaration in respect of offences alleged to have been
committed during the period of Emergency by persons who held high public or
political offices in India. Persons who are alleged to have committed 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. 4(l) 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.
4(1) 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 Art. 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 C`l (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 dispatch
be tried an(l 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 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, 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 Art. 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. v. The Asstt.
Collector of Central Excise, etc., [1974] 3
SCR 121 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. v. Union of
India & Ors., [1975] 1 SCR 449 at 477; State of Gujarat & Anr. v. 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. [564 F; 565 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 Art. 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 (Art. 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. v.
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 Art. 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 Art. 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 Art. 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, 3(b), and 3(c) 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, 3(a) 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 v. Nripendra Math Bagchi, [1966] 1 SCR 771,
Chandra Mohan and others, v. State of U.P. & Ors., [1967] 1 SCR 77; State
of Assam etc. v. Ranga Mohammad & Ors., [1967] J SCR 454; The State of
Orissa v. Sudhansu Sekhar Misra & Ors., [968] 2 SCR 154; State of Assam
& Anr. v. 5. N. Sen & Anr., [1972] 2 SCR 251; Shamsher Singh & Anr.
v. State of Punjab [1975] 1 SCR 814; High Court of Punjab & Haryana v.
State of Haryana & Ors. etc., [1975]) SCR
365; State, of Haryana v. Inder Prakash Anand, A.I.R. 1976 SC 1841;
Chief Justice of Andhra Pradesh & Ors. v.
L. V. A. Dixitulu & Ors. [1979] 1 S.C.R. 26. referred to.
(c) Neither s. 6 of the Code of Criminal
Procedure 1973 nor s. 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 s. 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 s. 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 fulfill
the guarantee of Art. 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 Art.
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-B l (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
13-978SCI/78 490 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 C&E] (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, therefore, 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. v. Regina [1966]
1 All. E.R. 650 referred to.
ADVISORY JURISDICTION: SPECIAL REFERENCE No.
1 OF 1978 (Under Art. 143(1) of the Constitution of India).
S. V. Gupte, Attorney General, R. N. Sachthey
and R. B. Datar for the Attorney General for India.
S. N. Kackar, Sol. Genl., R. N. Sachthey and
S. Markandaya for the Union of India.
K. D. Chattered, Adv. Genl. (Bihar), U. P.
Singh for the Adv. Genl. (Bihar).
A. K. Malik, Adv. Genl., (J&K), Altaf
Ahmed and Brij, Behari Singh for the A.G. J&K.
R. N. Byra Reddy, Adv. Genl., S. S. Ray and
A. K. Sen, N. Nettar, J. S. Sinha and Mrs. Alva Margaret for the A. G.
Karnataka.
Abdul Khader, Adv. Genl., Kerala and K. M. K.
Noir for the, A.G., (Kerala) R. S. Bhonsle, Adv. Genl., (Maharashtra), V. C.
Kotwal and M. N. Shroff, for the A.G. Maharashtra.
B. M. Patnaik, Adv. Genl., (Orissa), Miss Uma
Mehta and R. K. Mehta for the A.G., (Orissa).
491 R. K. Rastogi, Adv. Genl. (Rajasthan), S.
M. Jain and M. I. Khan, for the A.G., Rajasthan.
V. P. Raman, Adv. Genl. (Tamil Nadu) and A.
V. Rangam, for the A.G." Tamil Nadu.
O. P. Rana, for the A.G. (U.P.).
S. K. Acharya, Adv. Genl. (West Bengal),
Sukumar Basu and S. Chatterjee, for the A.G., West Bengal.
F. R. Mridul, H. K. Puri, Vijendra Jain,
Arunashwar Gupta, Vivek Sethi and Vijay Behl, for the Intervener (Mr.
V. C. Shukla) .
J . S. 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. S. 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. S. 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. S. Das Bahl, for the
Intervener (R. K. Dhawan) .
Shiva Pujan Singh, for the Intervener
(Jagmohan and P. S. Bhinder) .
M. C. Bhandare, N. Nettar, J. S. Sinha and
Mrs. Alva Margaret for the Intervener (Dev Raj Urs).
A. N. Karkhanis, for the Intervener (Narain
Dutt Tiwari).
A. S. Bobde, 1. N. Misra, V. C. Mahajan, Ram
Lal, D.
Goburdhan, for the Interveners (Jagannath
Misra and Ram Lal).
A.G. 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 S. S. Ray, P. N. Ramalingam and A. T. M.
Sampath for the applicant Intervener (State of J&K and for the Advocate
General, Haryana) .
S. C. Mohanta, Adv. Genl (Haryana), Naubat
Singh (Dy.
Adv. Genl.), R. N. Sachthey and Girish
Chandra, for the Advocate General, Haryana Chandrachud, C.J. delivered the
Opinion on behalf of Bhagwati, Sarkaria and Fazal Ali, JJ. and himself. Krishna
Iyer, Untwalia and Shinghal, JJ. delivered separate Opinions.
CHANDRACHUD, C.J.-On August 1, 1978 the
President of India made a reference to this Court under article 143(1) of the
Constitution for consideration of the question whether the "Special Courts
Bill, 1978" or any of its provisions, if enacted, would be
constitutionally invalid. The full text of the reference is as follows:
"WHEREAS certain Commissions of Inquiry
appointed by the Central Government under the Commissions of Inquiry Act, 1952
(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 them.
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.
2. The Central Government shall by
notification create adequate number of courts to be called Special Courts.
3. A Special Court shall take cognisance of
or try such cases as are instituted before it or transferred to it as
hereinafter provided.
4. (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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. (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. S. 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 v. Attorney General for the Provinces of Ontario, Quebec and
Nova Scotia(1) Attorney General for Ontario v. The Hamilton Street Railway
Company and others(2). Attorney General for the Province of Alberta v. Attorney
General for the Dominion of Canada(4). In re The Regulation and Control of
Aeronautics in Canada(4) and Attorney General for Ontario and Others v.
Attorney General for Canada and Others. (5) Counsel also relied on the decision
of the Federal Court in the Estate Duty Bill(6) case and on the decisions of
this Court in the references relating to The Kerala Education Bill(7). The
Berubari Union and Exchange of Enclaves(8), The Sea Customs Act Bill(9), the
U.P. Legislative Assembly(10) and the Gujarat Legislative Assembly(11) as
showing that whenever a reference is made by the President under article 143(1)
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) [1898] A.C. 700 (2) [1903] A.C. 524 (3)
[1915] A.C. 363 (4) [1932] A.C. 54 (5) [1947] A.C. 127 (6) [1944] F.C.R. 317
(7) [1959] S.C.R. 995 (8) [1960] 3 .C.R. 250 (9) [1964] 3 S.C.R. 787 (10)
[1965] I S.C.R. 413 (11) [1975] I S.C.R. 504 (12) [1938] Canada Law Reports 100
(S.C.) 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 143(1), in sharp contrast with
article 143(2), 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 143(1)
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 105(3) 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. S. Bhinder contended that the reference is
incompetent because it violates articles 107(1), 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:
143(1) 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 143(1), 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
143(1) 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 143(1) of the Constitution
is to consider the question on which the President has made the reference and report
to the President its opinion, provided of course the question is: capable of
being pronounced upon and falls within the power of the Court to decide. If, by
reason of the manner in which the question is framed or for any other
appropriate reason the Court considers it not proper or possible to answer the
question it would be entitled to return the reference by pointing out the
impediments in answering it The right of this Court to decline to answer a
reference does not flow merely out of the different phraseology used in clauses
(1) and (2) of article 143, in the sense that clause (1) provides that the
Court "may" report to the President its opinion on the question
referred to it, while clause (2) provides that the Court "shall" report
to the President its opinion on the question. Even in matters arising under
clause (2), though that question does not arise in this reference, the Court
may be justified in returning the reference unanswered if it finds for a valid
reason that the question is incapable of being answered. 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 character 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 213(1) of the
Government of India Act 1935 which corresponds to article 143(1) 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, C.J., 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 corresponding 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 143(1) 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,
C.J., 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 C.J.
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 Sea Customs Act, 1878 and
sub-section (1A) of section 3 of the Central Excises and Salt Act, 1944. The
question referred by the President for the opinion of this Court under article
143(1) 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 v. Attorney-General for Canada and
others.(1) There is another Canadian case which may be referred to as the Three
Bills Case(2) which is similar to the Kerala Education Bill(3) 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] A.C.127 (2) [1938] Canada Law
Reports, 100.
(3) [1959] S.C.R. 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 Company(1),
speculative opinions on hypothetical questions are worthless and it is contrary
to principle, inconvenient and in exedient that opinions should be given upon
such questions at all.
(1) [1903] A.C. 524, 529.
14-978 SCI/78 506 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 Canada(1) and Regulation and Control of Aeronautics,(2)
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) [1898] A.C. 700, 711.
(2) [1932] A.C. 54, 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 32(2), 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-Scott(1) 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 143(1) 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 105(3) 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 107(1), 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 32(1) 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
32(1) 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 Bill(1) 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) [1944] F.C.R. 317,
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) [1944] F.C.R. 317, 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 v. Carr(1) and Powell v. McCormack(2) 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 2(1)
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) 7 L.Ed., 2d, 663.
(2) 23 L.Ed., 2d, 491.
(3) 23 L.Ed., 2d. 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 10(1) 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 10(1) 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 142(2)
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 133(3)
provides that notwithstanding anything contained in th,e article, no appeal
shall lie to the Supreme Court from the judgment, decree or final order of one
Judge of a High Court(in 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 134(2) 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 138(1), 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 138(2), 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 32(2).
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 245(1), 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 136(1), 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 an(l 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 136(1), 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 138(1) and
article 246(1) and on entries 77 and 97 of List I for sustaining the
Parliament's power to enact clauses 6 and 10(1) 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 246(2), Parliament has clearly the
power 'to ma1.e 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 57(b) (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 57(b) (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 246(1) and(2), 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 133(3), 134f2), 138(1 ) 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 246(1) 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 th.e 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 246(1) 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 138(1) 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 246(1) 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 138(1) 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 136(2) 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 138(1) 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 a 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 138(1) 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 246(2) 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 practice 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 246(2) read with entry 11A of List
III, 15-9 78SCI/78 522 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
10(1).
In view of our conclusion that Parliament has
the legislative competence to enact clauses 6 and 10(1) 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
248(1) 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 10(1) 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 10(1), 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 231(1) 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 4(1) 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 C.P. and Berar Public Safety Act and the
U.P.
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 v.
State of Hyderabad & Others(1) 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 Saurashtra,(3) Lachmandas Kewalram Ahuja & Anr. vs. The State
of Bombay,(4) Syed Qasim Razvi vs. The State of Hyderabad & Ors.,(5) Habeeb
Mohamed vs. The State of Hyderabad,(6) Rao Shiv Bahadur Singh & Anr. vs.
The State of Vindhya Pradesh,(7) Kedar Nath Bajoria vs. The State of West
Bengal(8) 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) [1951] S.C.R. 344.
(2) [1952] S.C.R. 284.
(3) [1952] S.C.R. 435.
(4) [1952] S.C.R. 710.
(5) [1953] S.C.R. 589.
(6) [1953] S.C.R. 661.
(7) [1953] S.C.R. 1188.
(8) [1954] S.C.R. 30.
(9) [1957] S.C.R. 678.
528 In Anwar Ali Sarkar (supra) it was held
by the majority that section 5(1) 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 5(1), 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 C.J. 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 Rawat(supra) 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 5(1) 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 Sarkar,(supra)
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 Sarkar(supra) and that
issued in Kathi Raning Rawat(supra) (see pages 454-455 and page 470). Whereas,
the former was issued under that part of section 5(1) 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 Ahuja,(supra) 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 5(1) 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 Sarkar,(supra) 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 Singh,(supra) 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 5(2) 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 fulfillment 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 who 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 & Ors.(1) 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) [1975] 1 S.C.R. 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 Bihar,(1) Shri Ram Krishna Dalmia vs. Shri Justice S.
R.
Tendolkar & Others,(2) Sri C. L. Emden
vs. The State of U.P.(3) Kangsari Haldar & Another vs. The State of West
Bengal,(4) Jyoti Persad vs. The Administrator for the Union Territory of
Delhi(5) and The State of Gujarat and Another vs. Shri Ambica Mills Ltd.,
Ahmedabad, etc.(6) 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)
[1955 (1) S.C.R. 1045 (2) [1959] S.C.R. 279.
(3) 11960] (2) S.C.R. 592.
(4) [1960] (2) S.C.R. 646.
(5) [1962] (2) S.C.R. 125.
(6) [1974] (3) S.C.R. 760.
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.
2. 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.
3. 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.
5. 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.
6. 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.
7. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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 4(1). That
declaration can be made by the Central Government only if it is of the opinion
that there is prima facie evidence of the commission of an offence, during the
period mentioned in the preamble, by a person who held a high public or
political office in India and that, in accordance with the guidelines contained
in the preamble to the Bill, the said offence ought to be dealt with under the
Act. The classification which section 4(1) thus makes is both of offences and
offenders, the former in relation to the period mentioned in the preamble, that
is to say, from February 27, 1975 until the expiry of the proclamation of
emergency dated June 25, 1975 and in .
relation to the objective mentioned in the
sixth paragraph of the Preamble that it is imperative for the functioning of
parliamentary democracy and the institutions created by or under the
Constitution 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 SCI/78 538 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 359(1) 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 India(1) 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) [1978]1 S.C.R. 1,118.
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 democracy 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 v. 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
4(1) and the object of the Bill. That paragraph says that it is imperative for
the functioning of the Parliamentary democracy and the institutions created by
or under the Constitution of India that the commission of offences referred to
in the preamble should be judicially determined with the utmost dispatch. If it
be true, and we have to assume it to be true, that offences were committed by
persons holding high public or political (1)300 U.S. 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 4(1)
of the Bill.
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 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 4(1) 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 4(1), 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 4(1) 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 anybody 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 4(i) 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 4(1) 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 Madras(1) 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 India,(2) 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 19(1) (d) . In (l)
[1950] S.C.R. 88.
(2) [1970] 3 S.C.R. 530, 578.
(3) [1974] 1 S.C.R. 1.
547 Maneka Gandhi vs. Union of India(1) 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 one rousness 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. 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 India(1), 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 S.C.R. 621.
(1) [1978] 2 S.C.R. 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
Singh(supra) which was followed in Union of India vs. Sukumar Pyne,(1) 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 India,(2), 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) [1966] 2 S.C.R.
34, 38.
(2) A.T.R. 1978 S.C. 514.
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.
2. 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.
3. 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.
4. That in the light of the proceedings in
the Court, certain suggestions were communicated by the Solicitor General to
the Government.
5. 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.
6. 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/- S. 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 4(1) 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 & Ors.(1) 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 art. 143(1) of the Constitution is binding as
law declared by this Court within the meaning of art. 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) [1975] 2 S.C.R. 832, 845.
553 spent in determining the questions
arising in this reference shall not have been spent in vain. In the cases of
Estate Duty Bill(1), U.P. Legislative Assembly(2), and St. Xaviers College,(3)
the view was expressed that advisory opinions do not have the binding force of
law. In Attorney-General for Ontario v. Attorney-General for Canada(4) 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 v. Union of India(5) and the High Court of Gujarat in Chhabildas
Mehta v. The Legislative Assembly, Gujarat State(6) have taken the view that
the opinion rendered by the Supreme Court under art. 143 is law declared by it
within the meaning of art.
141. In The Province of Madras v. 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 art.
143(1) of the Constitution. We would also like, to draw attention to the
observations made by Ray, C.J., 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) [1944]
F.C.R. 317, 320, 332,341.
(2) [1965] 1 S.C.R. 413, 446-47.
(3) [1975] 1 S.C.R. 173 201-202.
(4) [1912] A.C. 571, 589.
(5) A.I.R. 1965 Cal 282.
(6) (1970) II Gujarat Law Reporter 729.
(7) [1942] F.C.R. 90 (8) [1959] F.C.R. 18.
17 - 978 SCI/78 554 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 H.M. Seervai, 2nd Edition, Vol. II, page 1415,
para 25.68).
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
10(1) of the Bill are, therefore, within the Parliament's legislative
competence;
555 (2) The classification provided for in
Clause 4(1) of the Bill is valid to the extent to which the Central Government
is empowered to make a declaration in respect of offences alleged to have been
committed during the period of Emergency by persons who held high public or
political offices in India. Persons who are alleged to have committed offence
prior to the declaration of Emergency cannot 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 4(1) 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 4(1) 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 fulfillment. 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 Art. 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 Art. 21 and with wider coverage to come to terms with Art. 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 Art. 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 Art. 14 is un-mistakable.
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. etc. v. The Asst.
Collector of Central Excise, etc.(1)
"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) [1974] 3 S.C.R. 121 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.
v. 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) [1975] 1 S.C.R. 449 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 v. Triolki Nath Khosa(2) "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 v. Triloki Nath Khosa(2) "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 Mills(3) placed the same accent from the
angle of under-inclusion:
(1) Ibid at 478.
(2) [1974]1 S.C.C. 19.
(3) State of Gujarat & Anr. v. Shri
Ambica Mills Ltd.
Ahmedabad [1974] 3 S.C.R. 760 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 Art. 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. v. 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) [1978]1 S.C.R. 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 is 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 J&K 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
Art. 21 have a fatal effect on legislative truncation of fair procedure.
The contribution of Maneka Gandhi case(1) 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 Art. 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 v. 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) [1974] 3 S.C.R. 760 at 783.
(2) 300 U.S. 379, 400.
(3) Gujarat v. Ambica Mills Ltd. [1974] 3
S.C.R. 760 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 remedy.(1) 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. v. 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 v. 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 v.
MeGinley, 366 U.S. 582, 592.
(2) 56 L.Ed. 175, 180.
(3).310 U.S. 141 .
18-978SCI/78 570 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, troublesome 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 (Art. 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' power wielders 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- [1975] 1 S.C.R. 1.
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 Art. 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 Art. 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 an(l 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
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, 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, 3(a), 3(b) and 3(c) 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 3(c), 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 3(a) and (b)
make the procedure unjust or arbitrary. I have grave doubts whether it is so on
that account. Anyway, 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.
7. 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 ]24(1) 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 v. Nripendra Nath Bagchi,(1) Chandra Mohan and others v. State of
Uttar Pradesh and others, (2) state if Assam etc. v. Rangu Mahammad and
others,(3) The State of Orissa v. Sudhansu Sekhar Misra and others, (4) State
of Assam and another v. S. N. Sen and another, (5) Shamsher Singh and another
v. State of Punjab,(6) High Court of Punjab and Haryana v. State of Haryana and
others etc.,(7) State of Bihar v. Madan Mohan Prasad and others,(8) State of
Haryana v. Inder Prakash Anand(9) and Chief Justice of Andhra Pradesh and
others v. L. V. A Dixitulu and others.(ix). 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 (i.e. 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) [1966] 1 S.C.R. 771.
(2) [1967] 1 S.C.R. 77.
(3) [1967] 1 S.C.R. 454.
(4) [1968] 2 S.C.R. 154.
(5) [1972] 2 S.C.R. 251.
(6) [1975] 1 S.C.R. 814.
(7) [1975] 3 S.C.R. 365.
(8) [1976] 3 S.C.R. 110.
(9) A.I.R. 1976 S.C. 1841.
(10) [1979] 1 S.C.R. 26.
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 contemplated 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 because 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 v. Union of India.(1) 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
S.C.R. 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 Passports Act, 1967, 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 fulfill 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.
7. 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.
8. 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 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.
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 9(2) 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 11(2) 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 everyone
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 v. Regina(1). 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) [1966] 1 All E.R. 650.
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.
P.B.R.
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