TMI Blog1978 (12) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of 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 provisions; 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; 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on who has held office as a judge of a High Court in India; AND WHEREAS it is expedient to make some procedural' changes whereby avoidable delay in the final determination of the guilt or innocence of the persons to be tried is eliminated without interfering with the right to a fair trial; BE it enacted by Parliament in the Twenty-ninth year of the Republic of India as follows: 1. (1) This Act may be called the Special Courts Act, 1978. (2) It shall come into force at once. 2. The Central Government shall by notification create adequate number of courts to be called Special Courts. 3. A Special Court shall take cognisance of or try such cases as are instituted before it or transferred to it as hereinafter provided. 4. (1) If the Central Government is of the opinion that there is prima facie evidence of the commission of an offence 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngalore inviting all persons likely to be affected by the passage of the Bill to apply for permission to appear or intervene in the proceedings; (3) Interveners will be permitted to submit their written arguments but will not be entitled to be heard orally unless the Court considers it fit and proper to do so; (4) Parties concerned shall appear before the Court on August 21 for taking further directions; and (5) that the hearing of the reference will commence on September 11, 1978 subject to the reasonable convenience of all concerned. 3. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by them through their written briefs and oral arguments. The written briefs facilitated a clearer perception and understanding of their respective points of view and enabled counsel, without much persuasion, to reduce their oral submissions to reasonable proportions. 6. 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: 7. 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 Lok 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 provisions may undergo fundamental changes during the parliamentary debate. As regards vagueness, Shri Sen contends that the President ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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. 9. Shri Mridul who appears for Shri V.C. Shukla objected to the maintainability of the reference on the additional ground that whereas 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. 10. 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 referen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that since the Parliament is seized of the Bill we should not answer the reference. 13. 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. 14. 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. 15. Shri Shiv Pujan Singh appearing on behalf of Shri Jagmohan and Shri P.S. Blunder 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 19. 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 anterio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r which reason every aspect and facet 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 ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 22. 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 Ors. v. Attorney-General for Canada and Ors. [1947] A.C. 127. 23. There is another Canadian case which may be referred to as the Three Bills Case [1938] Canada Law Reports, 100 which is similar to the Kerala Education Bill [1959] S.C.R. 995 case. Three bills which were passed by the Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w. 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 [1903] A.C. 524, 529, 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. 26. 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. 27. 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 Bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 30. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 31. 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 seizing 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 B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 33. Learned counsel for the interveners who oppose the reference urged as one of the planks of attack on the reference that it is futile 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 36. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 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 matters 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. 23 L.Ed., 2d, 491,493. 38. 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. 39. Ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se provides, with respect to any matter to which the provisions of Articles 133 and 134 do not apply if jurisdiction end 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, 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 B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme 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 10 of the Bill is therefore beyond the legislative power of the Parliament to enact. (c) Though Parliament has the power, and exclusively, to legislate on matters enumerated in List I, that power, as provided in Article 245(1), is subject to the provisions of the Constitution. Accordingly, the power of Parliament to legislate on matters mentioned, for example, in entry 77 of List I (Constitution, organisation, jurisdiction and powers of the Supreme Court...), entry 95 (jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in List I...), and entry 97 (any other matter not enumerated in List II or List III...) has to be exercised consistently with and subject to the other provisions of the Constitution. The law made by the Parliament by virtue of its power to legislate on matters enumerated in Lists I and III will not be valid, if it contravenes any other provision of the Constitution, apart from the provisions of Part III on Fundamental Rights. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncurrent Lists. Therefore, it is argued Parliament's power 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 List 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. 44. The challenge to the legislative competence of Parliament to provide for the creation of Special Courts is devoid of substance. Entry 11A of the Concurrent List relates to Administration of justice; Constitution and organisation of all courts, except the Supreme Court and the High Court.' By virtue of Article 246(2), Parliament has clearly the power to make laws with respect to the Constitution and organisation, that is to say, the creation and setting up of Special Courts. Clause 2 of the Bill is therefore within the competence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no greater jurisdiction can be conferred on the Supreme Court than the provisions of that Chapter authorise or warrant. It is impossible to accede to the contention that any such implications can arise out of the provisions of Chapter IV. The contention if accepted, will result in the virtual abrogation of the legislative power conferred on the Parliament by Article 246(1) and (2) of the Constitution. Such a construction which renders illusory or nugatory other important provisions of the Constitution must be avoided, especially when it seeks its justification from a mere implication arising out of the fasciculus of articles contained in Chapter IV. The Constitution does not provide 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 conjunction with the other provisions of the Constitution and not in derogation thereof. 48. A pertin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and effect of another. Indeed, if 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 twofold 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 (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction 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. 51. Once the argument regarding the exhaustiveness of the provisions of Chapter IV of Part V is rejected, Parliament clearly has the competence to provide by Clause 10(1) of the Bill that notwithstanding anything contained in the CrPC, 1973 an appeal shall lie as of right from any judgment or order of a Special Court to the Supreme Court both on fact and on law. A law which confers additional powers on the Supreme Court by enlarging its jurisdiction is evidently a law with respect to the ' jurisdiction and powers of that court. 52. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 judgments and orders to the Supreme Court only. That explains the justification for the amplitude of the legislative field covered by entry 77, List I. 54. 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 jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 in appropriate cases be invoked to ensure justice. 60. Equally important as the Parliament's l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. 63. 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, more 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 M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in The State of West Bengal v. Anwar Ali Sarkar [1952] S.C.R. 284, Kathi Raning Rawat v. The State of Saurashtra, [1952] S.C.R. 435 Lachmandas Kewalram Ahuja and Anr. v. The State of Bombay, [1952] S.C.R. 710 Syed Qasim Razvi v. The State of Hyderabad and Ors. [1953] S.C.R. 589, Habeeb Mohamed v. The State of Hyderabad [1953] S.C.R. 661, Rao Shiv Bahadur Singh and Anr. v. The State of Vindhya Pradesh [1953] S.C.R. 1188, Kedar Nath Bajoria v. The State of West Bengal [1954] S.C.R. 30 and Asgarali Naizarali Singaporawalla v. The State of Bombay [1957] S.C.R. 678. 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 legitimate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances 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 four 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 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 Ordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rospective effect, that a pre Constitution law must be held to be valid for all past transactions 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. 70. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rily 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 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 ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asive. 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. 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, pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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. 75. 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 the classification envisaged by it is arbitrary and artificial. By Clause 5 of the Bill, only those offences can be tried by the Special Courts in respect of which the Central Government has made a declaration under Clause 4(1). That declaration can be made by the Central Government only if it is of the opinion that there is prima facie evidence of the commission of an offence, during the period mentioned m the preamble, by a person who held a hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity 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 Representation of the People (Amendment) Ordinance, 1977; The Disputed Elections (Prime Minister and Speaker) Ordinance, 1977; and, the Presidential and Vice-Presidential Elections (Amendment) Ordinance, 1977. After the declaration of emergency, various regulatory measures were taken with a view to imposing press censorship. The orders and directions in that behalf are dated June 26, July 5, July 6, July 13 and August 5, 1975. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o are alleged to have utilised the high public or political offices held by them as a cover or opportunity for the purpose of committing those offences. We are not concerned with the truth or otherwise of the allegations, the narrow question before us being whether, in the first instance, the classification is based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out. The answer to that question can be one and one only, namely that offences alleged to have been committed during the emergency by persons holding high public or political offices in India stand in a class apart. The cover of emergency, so it is alleged, provided a unique opportunity to the holders of such offices to subvert the rule of law and perpetrate political crimes on the society. Others left out of that group had neither the means nor the opportunity to do so, since they lacked the authority which comes from official position. Thus, persons who are singled out by the Bill for trial before Special Courts possess common characteristics and those who fall outside that group do not possess them. 80. This is not to say that persons who f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The object of the Bill is to ensure a speedy trial of the offences and offenders who, as we have pointed out, constitute a single and special class. The close relationship between the basis of the classification and the object of the Bill is clear from the very face, of the Bill. As stated in the 5th paragraph of the Bill's preamble, ordinary criminal courts, due to congestion of work, cannot reasonably be expected to bring the prosecutions contemplated by the Bill to a speedy termination. The congestion in Courts, the mounting arrears and the easy and unconcerned dilatoriness which characterise the routine trials in our Courts are well-known facts of contemporary life. They are too glaring to permit of disputation. Seminars and symposiums are anxiously occupied in finding ways and means to solve what seems to be an intractable and frustrating problem. The Bill, therefore, justifiably provides for a method whereby prosecutions falling within its scope may be terminated speedily. It is no answer that speedier trial is a universal requirement of every trial. 83. The recital of the 6th paragraph of the preamble shows the true nexus between the basis of classification under Cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re onerous than the procedure which would have otherwise governed the trials. But once a classification is upheld by the application of the dual test, subjection to harsher treatment or disadvantageous procedure loses its relevance, the reason being that for the purposes of Article 14, unequals cannot complain of unequal treatment. One of the propositions formulated by us in the course of our judgment, namely, proposition No. 11 is to the effect that Classification necessarily implies discrimination between persons classified and those who are not members of that class. It is the essence of a classification that upon the class are cast duties and burdens different from those resting upon the general public. Indeed the very idea of classification is that of inequality, so that it goes without 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The Bill, in short, excludes the existence of two parallel jurisdictions in the same field and ensures effectively that all offences which fall within its scope shall be tried by the Special Court only and by no other court or tribunal. 87. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... class, persons who do not possess common qualities or ?characteristics. It is unquestionably reasonable for the legislature to think that the suppression of human liberties during the period of ?emergency furnished an opportunity to persons holding high public or political offices to commit crimes of grave magnitude which were calculated to destroy democratic values. The premise that the suspension, especially, of preferred freedoms engineers callous defiance of laws and the Constitution is easy to understand. That is why offences alleged to have been committed during the period of emergency can be treated as sui generis. The same cannot, however, be said of activities, even assuming that they are unlawful, which preceded the declaration of emergency. Those doings were open to public criticism and were unprotected by the veil of emergency. It is true that one ought not to insist on abstract symmetry or delusive exactness in the matter of classification. Therefore, eschewing a doctrinaire approach, one should test the validity of a classification by broad considerations, particularly when the charge is one of under-inclusiveness. The Government, as it is said must be permitted a li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Courts. As regards those who are rightly grouped together, we have already indicated that since the classification is valid, it is unnecessary for the purposes of Article 14 to consider whether the procedure prescribed by the Bill is more onerous than the ordinary procedure. That observation, it shall have been noticed, is expressly limited to the purposes of Article 14. The reason for so limiting it is that the assumption underlying the judgment of the majority in A.K. Gopalan v. State of Madras [1950] S.C.R. 88 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 in R.C. Cooper v. Union of India , known generally as the Bank Nationalisation case. In Sambhu Nath Sarkar v. The State of West Bengal and Ors. , 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 Maneka Gandhi v. Union of India 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efer to a few of them only as a sample of the many that were made. It is urged that a person put up for trial before the Special Court is denied the benefit of Section 439 of the CrPC, 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 CrPC requires the State to obtain the leave of the court before filing an appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay Gandhi v. Union of India, ., 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. 97. 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 100. Yet another infirmity from which the procedure prescribed by the Bill suffers is that the only obligation which Clause 7 imposes on the Central Government while nominating a person to preside over the Special Court is to consult the Chief Justice of India. This is not a proper place and it is to some extent embarrassing to dwell upon the pitfalls of the consultative process though, by hearsay, one may say that as a matter of convention, it is in the rarest of rate cases that the advice tendered by the Chief Justice of India is not accepted by the Government. But the right of an accused to life and liberty cannot be made to depend upon pious expressions of hope, howsoever past experience may justify them. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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. 104. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew earlier taken by it insofar as all other courts in the territory of India are concerned they ought to be bound by the view expressed by this Court even in the exercise of its advisory jurisdiction under Article 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 writer that although the adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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; (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 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 just and fair except in regard to the fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gap between word and deed menaces people's faith in life and law. And then, the tragedy-democracy becomes a casualty. 110. 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 tern, 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. 111. 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 mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fenders in public and political life-that compels me to be critical of a few provisions on grounds too basic to be slurred over. I start with the assumption that an Act of this nature, with the major changes mentioned by the Chief Justice to avert collision with Article 21 and with wider coverage to come to terms with Article 14, is long overdue and, if passed into law and enforced peremptorily, may partly salvage the sunken credibility of the general community in democracy-in-action, already demoralised, since Independence, by the perversion of power for oblique purposes as evidenced by periodical parliamentary debates and many Commission Reports still gathering dust. 114. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finical about absolute processual equality and must be creative in innovating procedures compelled by special situations. 120. But the idiom of Article 14 is unmistakeable. The power status of the alleged criminal, the nature of the alleged crime vis-a-vis public confidence and the imperative need for speedy litigative finality, are the telling factOrs. Every difference is not a differentia. 'Speedy trial' 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. 121. 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 cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity 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. 125. The Court in Mohammad Shujat Ali and Ors. v. Union of India and Ors. 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. 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 reasonableness 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 lew. 126. After having state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sification 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) 128. Here, what is the similarly circumstanced class which, according to the mandate of Article 14, must be similarly treated ? Is there any substantial differentiation between corrupters of public power before and after February 27, 1975 or before and after Emergency ? Are they not 'birds of a feather' who must 'flock together', tried alike and receive the fruits of justice equally ? What genetic distinction justifies a dissection between bribe-taking ministers of yesterday, to-day and tomorrow so far as-and this is the water mark-exemplary immediacy and instant finality of judicial processing are concerned ? 129. The prologuic part of the Bill states that the hushed spell of the Emergency era was haunted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 exemption from equal treatment. Emergency 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. 132. Let us view the prob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amids. It is apt to recall the words of Mr. Justice Khanna, Chairman of the Law Commission. Every system of government requires that those wielding power should use it for public good and should not make it an instrument of self-seeking. All power is like a trust. Those who derive it from the people are accountable to show that it has been exercised for the people. To repeat what I said recently, abuse of authority by those in power inevitably causes mass disillusionment and results in public frustration. Nowhere is it more true than in a democratic set-up because in democracy it is the people themselves who entrust power to those whom they elect. Abuse and misuse of authority can take many forms. It can result in self-aggrandisement by the acquisition of more authority by those put in power and the use of that authority for eliminating political and personal opponents. Such abuse of authority paves way to authoritarianism and dictatorship. Power can likewise be abused by making it a source of personal enrichment. Corruption percolates and if those in power at the top turn corrupt, we would soon find that corruption and graft become ubiquitous in all spheres of administration at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ou 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 lock-jawed. If these macabre maybes were assumed, there could be a noxious nexus between the Emergency season and the sinister crimes covered by this Bill. Maybe, these scary assumptions are exaggerated but the Enquiry Reports produced and Fazal Ali, J's observations earlier quoted do not permit a Judge to dismiss them as imaginary. It follows that a nexus between the differentia and the object is not too recondite to be inferred. 137. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: Gujarat v. Ambica Mills Ltd. . 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 legislativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 143. To sum up, the Bill hovers perilously near unconstitutionality (Article 14) in certain respects, but is surely saved by application of pragmatic principles rooted in precedents. Nevertheless, justice to social justice is best done by a permanent statute to deal firmly and promptly with super-political offenders, since these 'untouchable' and 'unapproachable' power wielders have become sinister yet constant companions of Development in developing countries. More remains to be done if the right to know and the right to express and expose are to be real and access to remedies available., absent which the rule of law shines in libraries, not among the people. 144. A brief reference to Chaganlal Magganlal Chaganlal Magganlal (p) Ltd. v. Municipal Corporation of Greater Bombay and Ors. , 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hinghal, 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 and face constitutional adjudication. I 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 instrumentality 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. 148. I concur with the learned Chief Justice althou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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. 151. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 CrPC, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 over all courts subject to its appellate jurisdiction. Power of withdrawing cases to itself has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears. 160. 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 v. Nripendra Nath Bagchi , Chandra Mohan and Or.s v. State of Uttar Pradesh and Ors. , State of Assam etc. v. Rangu Mahammad and Ors. , The State of Orissa v. Sudhansu Sekhar Misra and Ors. , State of Assam and Anr. v. S.N. Sen and Anr. , Shamsher Singh and Anr. v. State of Punjab , High Court of Punjab and Haryana v. State of Haryana and Ors. etc. , State of Bihar v. Madan Mohan Prasad and Ors. , State of Haryana v. Inder Prakash Anand and Chief Justice of Andhra Pradesh and Ors. v. L.V.A. Dixitulu and Ors. . 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntemplated in the Bill can be created under the Scheme of the Constitution. What Section 6 of the CrPC 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 the 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, inqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 if 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 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 State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cedure 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 be any arbitrary, fantastic or oppressive procedure. Fazal Ali, J., who was in a minority, went to the farthest limit in 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. Maha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Government in Delhi, and they are all presided over by judges nominated by the Central Government, the power of nominating the judge for any particular case triable in Delhi shall vest in the Central Government. As will appear, such a procedure cannot be said to be fair, just and reasonable within the meaning of Article 21 and amounts to serious transgression on the independence of the Judiciary. 171. 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 CrPC 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 Judicial Magistrates. The same care has been taken in regard to the appointment of Chief Judicial Magistrates, Additional Chief Judicial Magis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 is therefore necessary that this treasure should be the priceless possession and the solid hope of all our fellow citizens including those who have to face trials for the offences charged against them. 174. 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. 175. Reference in this connection may be made to Liyanage and Ors. v. Regina [1966] 1 All E.R. 650. 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 unani ..... X X X X Extracts X X X X X X X X Extracts X X X X
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