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PETITIONER: IN RE THE SPECIAL COURTS BILL, 1978

       Vs.

RESPONDENT:

DATE OF JUDGMENT01/12/1978

BENCH:

ACT:      Constitufion c)f 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  specialcourts.  The  Bill provides that  a special  court shall  take cognizance of or try such cases as are instituted before it or transferred to it in the manner provided therein. If the Central Government is of  opinion that  there is  prima facie  evidence of  the commission of  an offense  alleged to  have  been  committed during the  period of  Emergency by  a person  who held high public or  political office  in  India  and  that  the  said offense ought  to be debit with under the Act, it shall make a declaration to that effect in every case in which it is of that opinion.  A declaration  made by the Central Government cannot be called in question in ;my court. Clause (7) of the Bill provides that a special count shall be presided over by a sitting Judge of a High Court in India or a person who has held the  office as  a Judge  of a  High Court  in India and nominated by the Central Government in consultation with the Chief  Justice   of  India.   Clause  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.

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^      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

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questions at all. Whenever a reference is made to this Court under Art  143 of  the Constitution, care should be taken to frame specific  questions for  the opinion  of the Court. In the instant  reference it  is possible  to consider specific questions as  being comprehended  within the  terms  of  the reference but  the risk  that a  vague and general reference ma.,y be returned unanswered is real and ought to engage the attention of  those whose duty it is to frame the reference. 505 F-G, 507B]      (d) The  contention that since the Parliament is seized of the Bill, it is its exclusive function to decide upon the constitutionality of the provisions of the 478 Bill betrays  a  tctal  lack  of  awareness  of  the  scheme 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

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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  provde 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 notwith  standing anything  contained in  the  Code  of Criminal Procedure, 1973 an appeal 479 shall lie  as of  right from  any judgment  or  order  of  a Special Court  to the  A Supreme  Court both  on fact and on law. A  law-which confers  additional powers  on the Supreme Court by  enlarging its jurisdiction is evidently a law with respect to the "Jurisdiction and powers" of that Court. [517 C-D; 521 A-B]      (b) The  argument that the constitution having provided copiously for an hierarchy of courts. it is impermissible to the Parliament  to create a court or a class of courts which do not fall within or fit in that scheme has no force. There is nothing  in  the  Constitution  which  will  justify  the imposition of such a limitation on the Parliament’s power to create  special   courts.  The   words  to   Entry  11A  are sufficiently wide to enable the Parliament not merely to set up courts  of the  same kind and designation as are referred to  in   the  relevant  provisions  but  to  constitute  and organize, that  is to  say, create  new  or  special  courts subject to  the limitation mentioned in the entry as regards the Supreme Court and the High Courts. [524 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

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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 classify cation is  upheld by  the  application  of  the  dual  test, subjection to harsher treatment or disadvantageous procedure loses its  relevance, the reason being that for the purposes of 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]

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    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

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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

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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 Courts  with  jurisdiction  to  try cases under the Bill may, B: in the circumstances afford the best solution  from every  point of view. The Chief Justices of  High  Courts  will,  in  their  discretion,  assign  and allocate particular  cases to  Judges of  their  courts.  To avoid delays and to ensure speedier trial, no other work may be assigned  to the  High Court Judge nominated by the Chief Justice to  try a  case or  cases under  the Bill. This will obviate the  nomination, by  the Central  Government,  of  a particular Judge to try a particular case. [554 C-D]      Answers to the reference are as follows:      (1) Parliament has the legislative competence to create Special Courts and to provide that an appeal shall lie as of right from  any judgment  or order of a Special Court to the Supreme  Court.  Clauses  2  and  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

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    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 despatch  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

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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

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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

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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

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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.

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    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  fulfil 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

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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-Bl      (d) Moreover  in the  case  of  trials  before  special courts, the  trial by  the fiat  of a  successor government, however, justified, is noticed with scepticism The suspicion that the  trial is  motivated by  political  considerations, that it  would not be just and fair or that it would lead to injustice, would be lurking 13-978SCI/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, there fore,  to be put down at the very inception for it may otherwise give  rise to  a prospect too gruesome to envisage and too dangerous to be allowed to have the sanction of law. [584 H]      Liyanage &  Ors. v.  Regina  [1966]  1  All.  E.R.  650 referred to.

JUDGMENT:

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    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

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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   the.      Constitutional  validity of the provisions of the Bill,      if enacted,  and any  action  taken  thereunder,  being      challenged in  courts of  law involving  protracted and      avoidable litigation; 493           AND WHEREAS  in view of what has been hereinbefore      stated, it  appears to  me that  the  question  of  law      hereinafter set out is likely to arise and is of such a      nature  and  of  such  public  importance  that  it  is      expedient to obtain the opinion of the Supreme Court of      India thereon;           NOW,  THEREFORE,   in  exercise   of  the   powers      conferred upon  me by  clause (1) of Article 143 of the      Constitution, I,  Neelam Sanjiva  Reddy,  President  of      India, hereby  refer  the  following  question  to  the      Supreme Court  of India  for consideration  and  report      thereon, namely:-                           Question           (1) Whether  the Bill  or any  of  the  provisions      thereof, if  enacted, would be constitutionally invalid      ?      New Delhi,           Dated: 1st day of August, 1978                                          PRESIDENT OF INDIA"

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         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

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    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

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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.

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    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

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(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

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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.

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    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.

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    We are  unable to  agree that  the reference  is  of  a hypothetical or   speculative  character on  the ground that the Bill has yet to become an Act. It is true that the mover of the  Bill may  withdraw the  Bill or the Bill may undergo extensive amendments of a fundamental charac- 503 ter before  it is  passed, if it is passed at all. But these considerations   cannot affect the validity of the reference on the  score that  the  reference  raises  questions  of  a hypothetical or  speculative nature. The assumption of every reference  under   article  143  has  to  be  the  continued existence of  a context  or conditions on the basis of which the question  of law  or fact  arises or is likely to arise. The political life of a nation has but few eternal verities, for which  reason every  aspect and  fact of  that life  can justly be  described as  transient. But the possibility of a change, even  of  a  fundamental  change,  cannot  make  the exercise of  the Presidential jurisdiction under article 143 speculative  or  hypothetical.  The  stark  facts  are  that Parliament has  before it  a Bill  called the Special Courts Bill, the  Bill has  been moved by a Private Member and that the Bill consists of ten clauses which provide for the trial of certain  offences and  offenders. There is no speculation about the present existence of the Bill and there is nothing hypothetical about  its contents  as they  stand today.  The Bill may  undergo changes  in the  future  but  so  may  the Constitution itself,  including article 143, under which the President has  made the  reference to this Court. The former possibility  cannot   make  the   reference  speculative  or hypothetical any  more than  the latter possibility can make it so.  The Special  Courts Bill is there in flesh and blood for anyone  to see and examine. That sustains the reference, which is founded upon the satisfaction of the President that a question  as regards  the constitutional  validity of  the Bill is  likely to  arise and that the question is of such a nature and of such public importance that it is expedient to obtain the opinion of this Court upon it.      Three references  were  made  in  the  past  under  our Constitution,   in regard  to a contemplated legislation and not in  regard to a measure which had already become an Act. In the  Estate Duty  Case (supra),  the Governor General had made a  reference to  the Federal Court under section 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 corres- 504 ponding provision in the Canadian Supreme Court Act when the matter was  at the  stage of a bill. In the Kerala Education Bill case,  (supra) a  reference was  made by  the President under article  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

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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

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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 inexedient 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

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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

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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

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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

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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

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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

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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

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              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

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              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

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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

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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,

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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 ar under  any law  relating to  the Armed  Forces. Likewise, acting under article 138 (1), the Parliament may enlarge the n original  jurisdiction conferred upon the Supreme Court by article 131.  Even assuming that article 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.

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      What  now remains  to be seen is whether there is any entry in  list I  or List  III of the Seventh Schedule which covers the subject matter of the jurisdiction of the Supreme Court so  that Parliament  can have the competence to pass a law with  respect  to  that  matter.  This  question  hardly presents any difficulty. Entry 77 of List I reads thus:          Constitution, organisation, jurisdiction and powers      of the  Supreme  Court  (including,  contempt  of  such      Court), and the fees taken therein; persons entitled to      practise before the Supreme Court. 521      Once the  argument regarding  the exhaustiveness of the provisions A of Chapter IV of Part V is rejected, Parliament clearly has  the competence  to provide  by clause 10 (1) of the Bill that notwithstanding anything contained in the Code of Criminal  Procedure, 1973 an appeal shall lie a, of right from any judgment or order of 2 Special Court to the Supreme Court  both  on  fact  and  on  law.  A  law  which  confers additional powers  on the.  Supreme Court  by enlarging  its jurisdiction  is   evidently  a  law  with  respect  to  the "jurisdiction and powers" of that court.      Entry 77  of List  I  presents,  as  contended  by  the learned Attorney  General, a striking contrast with entry 95 of List I, entry 65 of List II and entry 46 of List III. The operation of  the three  last-mentioned entries is expressly limited by  a qualifying  clause, which  limits the field of legislation to  the matters mentioned in the particular list in which  the entry  appears. Entry  95 of List I relates to jurisdiction and  powers of  all courts,  except the Supreme Court   with respect  to any  of the  matters in this List". Entry 65  of List  II relates  to jurisdiction and powers of all courts,  except the  Supreme Court, "with respect to any of the  matters in this List Entry 46 of List III relates to jurisdiction and  powers of  all courts,  except the Supreme Court, "with  respect to any of the matters in this List . A reference may  also be  made m  passing to  article 323B  to which Shri Ram Jethmalani drew our attention, which provides that the  appropriate Legislature  may, by  law, provide for the adjudication  or trial  by tribunals  of  any  disputes, complaints, or  offences "with  respect to all or any of the matters specified  in clause  (2) with respect to which such Legislature has  power to  make laws".  Entry 77  of List  I stands out  in its uniqueness amongst cognate entries in the legislative Lists  by its wide and unqualified language. The field of  legislation covered by it is not  circumscribed by the qualification,  "with respect  to any  of the matters in this List",  that is,  List 5. This contrast emphasises that the power  of the  Parliament to legislate with respect to a matter contained in entry 77, which, in the instant case, is "jurisdiction and  powers  of  the  Supreme  Court"  can  be exercised without  reference to any of the matters contained in  List   I  or   in  any  other  List.  There  can  be  no justification, to revert to the argument already disposed of by us  f curtailing  the amplitude of the Parliament’s power in relation  to the  subject matter of entry 77 by reason of anything contained in Chapter IV, Part V.      The problem is of a twin variety and has two interlaced facets. If  there is  power in the parliament to establish a new court,  as undoubtedly  there is  by virtue  of  article 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

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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

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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

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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

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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

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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

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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

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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

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to persons  or things  within a  defined group by indicating the underlying  policy and  purpose in accordance with which and in  fulfilment of which the administrative authority was expected to  select the  persons or  things  to  be  brought within the  operation of  the law.  The  mere  circumstance, according to the majority, that the State Government was not compellable to  allot all  cases of  offences set out in the Schedule to  Special Judges but was vested with a discretion m the  matter and  could choose  some cases  only for  trial before the Special Court did not offend against article 14.      In  Asgarali   Nazarali  Singaporawalla,   (Supra)  the Criminal Law  Amendment Act,  1952 enacted by the Parliament came into  force whilst  the appellant along with others was being tried  before the  Presidency Magistrate,  Bombay, for offences under  section 161  read with  section 116, etc. Of the Penal  Code. The  Act provided for the trial of offences of bribery  and corruption by the Special Judges and for the transfer  of   all  pending   trials  to  such  Judges.  The Presidency  Magistrate   continued  the  trial  despite  the passing of the Act and acquitted the appellants. It was held by this  Court. unanimously  that the  Act did  not  violate article 14  since the  offences of bribery and corruption by public servants  could appropriately  be classified  in  one group or  category. The  classification which was founded on an intelligible  differentia was  held to  bear  a  rational relationship with  the object  of  the  Act  which  was,  to provide for  speedier trial of certain offences. An argument was  pressed   upon  this  Court  which  was  based  on  the observations of  Mahajan J.  and Mukherjea  J. in  Anwar Ali Sarkar (Supra)  at pages  314 and 328 respectively, that the speedier trial  of offences  could not  afford a  reasonable basis for  classification. That  argument apparently did not find favour  with the  Court which  said (page 691) that the particular observations’  of the learned Judges in Anwar Ali Sarkar might,  standing by  themselves, lend  support to the argument but the principle underlying those observations was not held  to be  conclusive by  this  Court  in  Kedar  Nath Bajoria. (Supra)      This analysis will be incomplete without reference to a recent decision  of this  Court in  Maganlal Chhagganlal (P) Ltd. vs. Municipal 532 Corporation of  Greater  Bombay  &  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

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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

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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

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         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

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         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

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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-

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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

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committed during  the  emergency  by  persons  holding  high public or political offices in India stand in a class apart. The cover  of emergency, so it is alleged, provided a unique opportunity to  the holders  of such  offices to subvert the rule of  law and perpetrate political crimes on the society. Others left  out of that group had neither the means nor the opportunity to  do so, since they lacked the authority which comes from  official position. Thus, persons who are singled out by  the Bill  for trial  before Special  Courts  possess common characteristics and those who fall outside that group do not possess them.      This is  not to  say that  persons who fall outside the group cannot  ever commit  or might  not ever have committed crimes  of   great  magnitude  by  exploiting  their  public offices. But  those crimes,  if at  all, are  of a basically different kind and have generally a different motivation. In the  first   place,  no   advantage  can  be  taken  of  the suppression of  human freedoms  when the emergency is not in operation. The suppression of people’s liberties facilitates easy commission  of crimes.  Public criticism  is  a  potent deterrent to misbehaviour and when that is suppressed, there is no  fear of detection. Secondly, crimes which are alleged to have been committed during extraordinary periods like the period  of   emergency  are  oblique  in  their  design  and selective in  their object.  They are  generally designed to capture and perpetuate political power; and they are broadly directed against  political opponents.  The holder of a high public office  who, in  normal times,  takes a  bribe has no greater purposes  in doing  so than to enrich himself. That, unquestionably, deserves  the highest condemnation and there is no  reason why  such crimes  should  not  also  be  tried speedily in  the interest  of public decency and morals. But those crimes  are   not woven  out of  the warp  and woof of political motivations.  Equal laws have to be applied to all in the  same situation  and legislature is free to recognise the degree of harm or evil. Parliamentary demo- 541 cracy will  see its  halcyon days  in India  when  law  will provide for  a  speedy trial of all offenders who misuse the public offices  held by  them. Purity  in public  life is  a desired goal  at all  times and in all situations, emergency or no  emergency. But,  we cannot sit as a super legislature and strike  down the instant classification on the ground of under-inclusion on  the score  that those  others  are  left untouched,  so   long  as   there   is   no   violation   of constitutional restraints.  In this  context, it  cannot  be over-emphasized that:           "If the  law presumably  hits the evil where it is      most felt,  it is  not to  be overthrown because there,      are  other  instances  to  which  it  might  have  been      applied. There  is no  doctrinaire requirement that the      legislation should be, couched in all embracing terms".      (See West Coast Hotel Company 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

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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 relation  ship with  the object  of the  Bill, no grievance can  be entertained  under  article  14  that  the procedure prescribed  by the  Bill for the trial of offences which fall  within its  terms is  harsher or more onerous as compared with  the procedure  which governs ordinary trials. Classification necessarily  entails the  subjection of those who  fall  within  it  to  a  different  set  of  rules  and procedure, which  may conceivably  be  more  disadvantageous than the  procedure  which  generally  applies  to  ordinary trials. In  almost all  of  the  decisions  bearing  on  the question which arise for our consideration and which we have reviewed, the special procedure prescribed by the particular laws was  distinctly and  indisputably more onerous than the procedure which  would have otherwise, governed the trials,. But once  a classification  is upheld  by the application of the  dual   test,  subjection   to  harsher   treatment   or disadvantageous procedure  loses its  relevance, the  reason being that  for the  purposes of article 14, unequals cannot complain of  unequal  treatment.  One  of  the  propositions formulated by  us in  the course  of our  judgment,  namely, proposition No.  11 is  to the  effect that  "Classification

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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

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and by no other court or tribunal.      That leaves  one more  point for  consideration for the purposes of  article 14 which, though last, is not the least in point of importance. That point pertains to the relevance of the date mentioned in the, preamble, namely, February 27, 1975. The  reasons constituting  the justification  for  the Bill are  contained in  the eight paragraphs of its preamble out of  which paragraph  one is  relevant  for  the  present purpose. It  says that  certain Commissions  of Enquiry were appointed under  the Commissions  of Enquiry Act, 1952 which had rendered reports disclosing the existence of prima facie evidence of  offences committed by persons who had held high public or  political offices  in the  country and  by others connected with  the commission  of such offences, during the operation of  the Proclamation of Emergency dated 25th June, 1975 "and  during the  pre  ceding  period  commencing  27th February, 1975  when it  became apparent that offenders were being screened  by those  whose duty it was to bring them to book".      While explaining  this recital,  it was  urged  by  the learned Solicitor  General and  Shri Ram  Jethmalani that  a clear trend  to protect  excesses  and  illegalities  became apparent on  the particular  date. Reliance,  was placed  in support of  that contention  on  a  pair  of  questions  and answers exchanged on the floor of the House between a member of the  Lok Sabha  and the then Prime Minister. According to the Lok  Sabha Debates (5th Series, Vol. 48, page 258, dated February 27, 1975), this is what transpired between the two:           "Shri Janeshwar  Mishra  (Allahabad):    at  about      Maruti ? Shrimati Indira Gandhi: There is no corruption      in Maruti.  Since the  hon. Member has raised it, I can      say that  every question  that has  been asked has been      replied to;  nothing wrong  has been  done, no  special      favour should  be, or  has been,  given because  it  is      concerned with the Prime Minister’s son.            What  I was saying is that we are just as anxious      as any body else to remove corruption. I do not want lo      go into  the details.  I have  earlier spoken about the      stage by stage actions we have taken. I have said it in      public meetings  and I  have discussed it with leaders.      But today  there seems  to be  a very selective type of      campaign or accusation. Corruption will not 545      go in  this way.  If the  real intention  is, to remove      corruption,   then it  must be an honest way of dealing      with it at every level           Shri Shyamnandan  Mishra: A certificate of honesty      should come  from you  ? Shrimati Indira Gandhi: Not at      all".      The claim  that the  tendency to protect the excess and illegalities became  apparent because  of these  answers  or that the  particular answers  created a  new awareness  that offenders were  being screened by those whose duty it was to bring them  to book  is too  naive for  our acceptance. Even assuming that  there is any credible basis for the same, the grouping  together  of  persons  who  are  alleged  to  have committed offences  during  the  period  of  emergency  with others who  are alleged  to  have  engaged  themselves.,  in screening certain  offenders prior  to  the  declaration  of emergency is  tantamount to  clubbing together,  in the same class, persons  who  do  not  possess  common  qualities  or characteristics. It  is unquestionably  reasonable  for  the legislature to think that the suppression of human liberties during the  period of  emergency furnished an opportunity to persons holding  high public or  political offices to commit

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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.

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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  onerousness of the special  procedure would be irrelevant in considerations arising  under   article  14,   for  the   reason  that  the classification is  valid (to  the extent indicated). But the Bill has  got to  meet the  challenge cf other provisions of the Constitution also, in so far as any particular provision is  attracted.   The   theory   that   articles   conferring fundamental rights  are  mutually  exclusive  and  that  any particular article  in part III constitutes a self-contained code having  been discarded, it becomes necessary to examine whether the procedure prescribed by the Bill is violative of any other provision of the Constitution      Article  21   is  the   only  other  provision  of  the Constitution which  is apposite in this context. It provides that no  person shall  be deprived  of his  life or personal liberty except  according to  the procedure  established  by law. In  Maneka Gandhi vs. Union of 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

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         (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

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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

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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

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    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

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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

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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

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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

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signifying  nothing,   that  ’business   as  usual’  is  the signature tune  of public  business,  heretofore,  here  and hereafter. So  this social  justice  measure  has  my  broad assent   in    moral   principle   and   in   constitutional classification, subject  to  the  serious  infirmities  from which it  suffers as  the learned  Chief Justice has tersely sketched. Whether  this remedy  will  effectively  cure  the malady of criminal summitry is for the future to tell.      All this  serves as a backdrop. Let me unfold in fuller argumentation my  thesis that  the Bill,  good so  far as it goes, is  bad so  far as  it does  not go-saved  though by a pragmatic exception  I will  presently  explain.  Where  the proposed law excludes the pre-and post-emergency crime-doers in the  higher  brackets  and  picks  out  only  ’Emergency’ offenders, its  benign  purpose  perhaps  becomes  a  crypto cover-up of  like criminals before and after. An ’ephemeral’ measure to meet a perennial menace is neither a logical step nor  national  fulfilment.  The  classification,  if  I  may anticipate my  conclusion. is on the brink of constitutional break-down at  that point  and becomes  almost vulnerable to the attack of 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

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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

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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 unmistakeable. The power status of  the alleged  criminal, the  nature of the alleged crime vis-a-vis  public confidence  and the  imperative need for speedy  litigative finality,  are  the  telling  factors Every difference  is not  a differentia.  ’Speedy trials" of offences of  a public  nature ’committed by persons who have held high  public or  political offices  in the  country and others connected  with the  commission of  such offences’ is the heart of the matter      Let us  take a close look at the ’Emergency’, the vices it bred  and  the  nexus  they  have  to  speedier  justice, substantial  enough   to   qualify   for   reasonable   sub- classification. Information flowing from the proceedings and reports of  a bunch  of  high-powered  judicial  commissions shows that  during that hushed spell, many suffered shocking treatment. In  the words  of the  Preamble, civil  liberties were withdrawn  to a  great  extent,  important  fundamental rights of  the people  were suspended,  strict censorship on the press was placed and judicial powers were curtailed to a large extent.      Before  proceeding   further,   the   Legislative   and Judicative frontiers  must be,  perceived with perspicacity, as set  out in  Murthy Watch  works etc.  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,

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    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

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    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 ?

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    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 are the armoury of dubious and arrogant power. The right  to know is a fundamental facet of free action and the Official  Secrets Act  is often a shield of the corrupt. Fearless investigation  is a  sine qua  non of  exposure  of delinquent  ’greats’   and  if  the  investigative  agencies tremble to  probe or make public the felonies of high office white collar  offenders in the peaks may be unruffled by the law. An independent investigative agency to be set in motion by any  responsible citizen  is a  desideratum. These et al, are not  to be  ignored in  the incessant  din of ’Emergency Excesses’.      The relevancies  relied on  in the  Preamble bearing on Emergency and  its nexus  to speedier trial may be analysed. Civil  liberties   were  suppressed,  press  censorship  was clamped down  and judicial  powers were  curtailed. Assuming civil liberty  was a  casualty during  the Emergency,  as it was, how did it obstruct trials of super-political criminals ? If  faith in democratic institutions is the victim in case there is  undue delay in punishing high public and political offenders"  that   holds  good,   regardless  of  Emergency. Likewise, if  the Press had been suppressed during Emergency what had  that to  do with political criminals being brought to book  by filing  complaints before  courts ?  If judicial powers were  crippled by  the Proclamation and the follow-up notification, they  affected the  High Courts’  and  Supreme Court’s jurisdictions  to grant  relief  against  preventive detention or denial of certain freedoms. What had that to do with prompt  prosecution in  trial courts  of high political criminals-that  perennial  post-Independence  species  ?  If substantial relation  between the  distinguishing  criterion and  the   goal  of  the  law  be  the  only  classificatory justification qualifying for exemp

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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

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    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

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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.

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    (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, trouble some and expensive      regulations covering  the whole  range of  connected or      similar enterprises."      "All or  nothing"  may  lead  to  unworkable  rigidity. Principled compromises  are permissible  in law  where  non- negotiable fundamentals  are not  tampered with. The Bill in

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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’  powerwielders have become sinister yet constant companions  of Development in developing countries. More remains  to be  done if the right to know and the right to express  and expose are to be real and access to remedies available" absent which the rule of law shines in libraries, not among the people.      A brief reference to Chaganlal Magganlal, presenting it in a  light somewhat different from the approach made by the learned Chief  Justice, is apposite before I wind up because there was  a strand of argument that if both procedures were substantially fair  and equal  in their  onerous process the provision was  beyond constitutional  cavil on  the score of classificatory discrimination. ’this, with great respect, is specious.  It   is  understandable   that  given   a   valid classification, the  opportunity for  using one or the other alternative procedures  is goods  a Chaganlal  Magganlal. In that case,  speedy recovery of public property was the basis for grouping  and, within that group, one of two alternative procedures, more  or less similar in burden or facility, was held sound.      (1)  Chaganlal   Magganlal   (P)   Ltd   V.   Municipal      Corporation of Greater Bombay & Ors- [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.

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    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

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be necessary or even advisable to adopt such a course in all References under  Article 143 of the Constitution. But if in some it  becomes expedient to do so" as in my opinion in the instant one  it was  so, I  think, it  saves a lot of public time and  money to remove any technical lacuna from the Bill if the  Government thinks  that it  can agree  to do  so, of course the  Bill by  itself is  not a law. It would be a law when passed  by the Parliament. But even at the state of the Bill when opinion of this Court is asked for, it seems to me quite appro 573 priate in  a given case to make some suggestions and then to answer the   Reference  on the  footing of acceptance by the Government of such of the suggestions as have been accepted. Otherwise, according to me, it is incongruous for this Court to answer the Reference as it is without taking into account the concessions  made on  behalf of the Government vis-a-vis the suggestions  of the  Court. It  is manifest that all the three infirmities  pointed out  in the  majority opinion  in answer no.  3 vanish  after the acceptance in writing by the Government that the three suggestions made by the Court vis- a-vis the  alleged three infirmities, namely, 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. Any  way, in  my opinion,  there is no  question of the procedure being unjust or arbitrary in respect of any of the three  infirmities (a), (b) and (F) enumerated in answer 3 in  view of  the acceptance  by the Government of India of the suggestions  emanating from  the Court during the course of the  hearing of  the reference.  l see  no difficulty  in holding that  the Reference  stands amended in view of those concessions and  we are  now required  to answer the amended Reference which  means the  Reference  as  if  the  Bill  as proposed incorporates  the three  concessions  made  by  the Government. Thus  the  procedure  prescribed  in  the  Bill, undoubtedly, becomes  just and  fair and  no longer  remains arbitrary in any sense.      SHINGHAL J.,-I  had the  advantage of going through the judgment of  my Lord the Chief Justice and I concur with the conclusion arrived at by him in regard to the maintenance of the reference,  the legislative competence of the Parliament and the  arguments  which  were  raised  with  reference  to article 14  of the  Constitution. I also agree that the Bill suffers from  the three  defects mentioned  at (a) to (c) of sub-paragraph (3)  of the  concluding paragraph of my Lord’s judgment. It however appears to me that the question whether the  Bill   or  any   of   its   provisions   is   otherwise unconstitutional, is  equally with the scope of the question under reference  and requires  consideration in the light of the other  arguments which  have been advanced before us. In fact I  am of  the opinion  that, for  reasons which follow, clauses  5   and  7   of  the   Bill  are,   in  any   case, constitutionally  invalid  even  if  the  three    offending provisions pointed  out by  the Chief Justice are amended on the lines stated by learned Solicitor General. 574      A reference  to the Statement of Objects and Reasons of the Bill  shows that  it  is  meant  to  create  "additional

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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

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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

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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.

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    (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 con- 579 templated in  the Bill,  and the argument to the contrary is quite  untenable.      A reference  to section 6 of the Criminal Law Amendment Act, 1952,  is equally  futile. While  that section provides for the  appointment of special Judges for the trial of some offences, section  9 specifically  provides  that  the  High Court may  exercise, so far as they may 1 be applicable, all

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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

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reference to article 14 of the Constitution be cause that is not necessary  when the  scope and the meaning of article 21 have been  defined by  this Court  in a  number of decisions including Maneka  Gandhi 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 fulfil  the guarantee  of article  21, the

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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 can  not be said to be fair, just and  reasonable within  the meaning  of article  21 and amounts to  serious transgression on the independence of the Judiciary.      Reference has  already been made to the scheme provided in the  Constitution for  the  creation  of  the  civil  and criminal judicial  courts and the independence of the judges and the  magistrates presiding  over those courts. So far as the Supreme  Court and  the High  Courts are  concerned, the question of  the Central or the State Governments nominating the judge who shall deal with a particular case does not and cannot arise.  As regards  the subordinate  courts,  section 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

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accused under  the Code of Criminal Procedure. That is fair, just and reasonable and relieves the accused of any possible oppression.      It has  to be  appreciated that  the problem is of much greater significance  in the  case of  trials    before  the Special Courts envisaged in the Bill. As is obvious, a trial by the fiat of a successor government, however justified, is noticed  with  an  amount  of  scepticism.  If  one  may  be permitted to  say so, a "successor trial," broadly speaking, seeks to  hit the  adversary a second time after his initial discomfiture and displacement from power or authority and in the case of an accused who has held a high political status, it may  have the  effect of destroying his political future. It is,  by the  very nature of things, difficult to disabuse the mind  of such  an accused  of the lurking suspicion that the trial  is motivated by political considerations and will not be  just and  fair, or  to convince  him  that  it  will ultimately lead  to justice.  It  should  therefore  be  the effort of  those ordering  the trial to do nothing that may, even remotely, justify such a suspicion. They should in fact do all  they can  to convince  every one concerned including the accused,  that  they  had  the  best  of  intentions  in ordering the  trial and  had provided  a fair  and straight- forward procedure,  and the  cleanest  of  judges,  for  the trial, in  an open  and fearless  manner. that will not only foreclose avoidable  criticism but uphold the majesty of the Rule of Law in its true sense      Moreover, if  the result  of the  trial  has  to  carry conviction with  the people  as a  whole, and  is  meant  to acquaint them  with the  "true character" of the persons who have  committed   the  offences  for  the  survival  of  the democratic institutions  and cleanliness  of  the  political life, as  professed in  the Statement of objects and Reasons of the  Bill, i:  is in  the interest  of those  making  the declaration referred  to in clause 4 of the Bill to convince everyone, including  the accused.  that  the  trial  is  not spectacular in  purpose and  does not expose those facing it to a risk greater than that taken by any other accused at an ordinary  trial,  under  the  ordinary  law.  That  kind  of assurance, that there is no prearranged result, and that the accused have nothing to fear from the presiding judge of the Court, is  the basic  requirement of  a  "successor  trial". Human dignity  is a concept enshrined in the Preamble of our Constitution and runs through all that it provides. It 584 is therefore  necessary that  this treasure  should  be  the priceless posses  s on  and the solid hope of all our fellow citizens including  those who  have to  face trials  for the offences charged  against them.  But the clauses of the Bill referred to  above are  in derogation  of the majesty of the judicial edifice so gloriously and assuredly built up by the Constitution, and is a serious inroad on the independence of the judiciary.      Reference in  this connection  may be  made to Liyanage and others  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

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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. 19-978SCI /78 586