1978 (12) TMI 184 - SC - Indian Laws

Parliament's Legislative Competence Upheld for Special Courts Bill, Judicial Independence Concerns Raised

In Re: The Special Courts Bill

In Re: The Special Courts Bill - 1979 AIR 478, (1979) 1 SCC 380, 1979 2 SCR 476 Issues Involved:1. Legislative competence of Parliament to enact the Special Courts Bill.2. Validity of the classification under Clause 4(1) of the Bill.3. Procedural fairness and compliance with Article 21.4. Independence of the judiciary and the appointment of judges to Special Courts.5. Maintainability of the reference under Article 143(1).Detailed Analysis:1. Legislative Competence of Parliament to Enact the Special Courts Bill:The Supreme Court examined whether Parliament had the legislative competence to enact the Special Courts Bill, specifically focusing on Clauses 2, 6, and 10(1). Clause 2 provides for the creation of Special Courts, Clause 6 for the transfer of pending appeals and revisions to the Supreme Court, and Clause 10(1) for appeals from Special Courts to the Supreme Court.The Court held that the Parliament has the competence to enact these provisions under Entry 11A of the Concurrent List, which relates to the 'Administration of justice; Constitution and organisation of all courts, except the Supreme Court and the High Court.' The Court also found that Entry 77 of List I, which covers the 'Constitution, organisation, jurisdiction and powers of the Supreme Court,' supports the legislative competence to enact Clauses 6 and 10(1). Therefore, Clauses 2, 6, and 10(1) were within the legislative competence of Parliament.2. Validity of the Classification under Clause 4(1) of the Bill:The classification under Clause 4(1) was scrutinized to determine if it violated Article 14 of the Constitution, which guarantees equality before the law. The classification in question involved the trial of offences committed during the Emergency period by persons holding high public or political offices.The Court upheld the classification to the extent that it covered offences committed during the Emergency period, finding that it was based on an intelligible differentia and had a rational nexus with the object sought to be achieved, which was the speedy trial of such offences. However, the Court found the classification invalid to the extent that it included offences committed between February 27, 1975, and June 25, 1975, as this period did not share the same characteristics as the Emergency period.3. Procedural Fairness and Compliance with Article 21:The Court examined whether the procedure prescribed by the Bill was 'just, fair, and reasonable' as required by Article 21, which protects the right to life and personal liberty. The Court identified three procedural infirmities:(a) The provision in Clause 7 allowing retired High Court judges to preside over Special Courts.(b) The provision in Clause 7 allowing the Central Government to appoint judges to Special Courts in consultation with, but not with the concurrence of, the Chief Justice of India.(c) The absence of a provision for the transfer of cases from one Special Court to another.The Court found these provisions to be unjust and unfair, thus violating Article 21. The Government's subsequent acceptance of the Court's suggestions to amend these provisions was noted, but the Court emphasized that the Bill, as it stood, was procedurally unjust.4. Independence of the Judiciary and the Appointment of Judges to Special Courts:The Court addressed concerns about the independence of the judiciary, particularly regarding the appointment of judges to Special Courts. Clause 7 of the Bill allowed for the appointment of retired High Court judges and required only consultation with the Chief Justice of India for appointing sitting judges.The Court found this provision problematic as it undermined judicial independence, especially since retired judges would serve at the pleasure of the Government, which could compromise their impartiality. The Court suggested that only sitting judges should be appointed to Special Courts and that such appointments should be made with the concurrence of the Chief Justice of India to ensure judicial independence.5. Maintainability of the Reference under Article 143(1):The maintainability of the reference itself was challenged on several grounds, including that it was hypothetical, vague, and involved political questions. The Court held that the reference was maintainable, emphasizing that Article 143(1) allows the President to seek the Court's opinion on questions of law or fact that are of public importance. The Court found that the question posed was neither hypothetical nor speculative and that it was within its jurisdiction to answer it.Conclusion:The Supreme Court concluded that:1. Parliament has the legislative competence to enact the Special Courts Bill, including Clauses 2, 6, and 10(1).2. The classification under Clause 4(1) is valid for offences committed during the Emergency but invalid for offences committed between February 27, 1975, and June 25, 1975.3. The procedure prescribed by the Bill is unjust and unfair in certain respects, violating Article 21.4. Provisions undermining judicial independence, particularly those concerning the appointment of judges, are problematic.5. The reference is maintainable under Article 143(1).