Supreme Court Upholds Constitutionality of Special Courts Bill, 1978 with Key Modifications

Constitutional Bench affirms Parliament's power to create Special Courts and confer appellate jurisdiction on Supreme Court; narrows classification period and mandates procedural safeguards to ensure fair trial.

In a landmark advisory opinion delivered on December 1, 1978, the Constitutional Bench of the Supreme Court of India addressed the constitutional validity of the Special Courts Bill, 1978, referred by the President under Article 143(1) of the Constitution. This Bill was designed to establish Special Courts for the speedy trial of certain offences allegedly committed by persons holding high public or political offices during the Emergency period and immediately prior.

The Court thoroughly examined several crucial issues including the legislative competence of Parliament to create such courts, the classification of offences and offenders, the procedural fairness guaranteed under Articles 14 and 21 of the Constitution, and the scope and limitations of the Supreme Court’s advisory jurisdiction.

Rejecting preliminary objections that the reference was hypothetical, vague, or an encroachment on parliamentary privileges, the Court clarified that the President’s satisfaction that a question of constitutional law of public importance is likely to arise suffices to maintain the reference. It underscored the judiciary’s exclusive authority to pronounce on constitutional validity, while Parliament retains the policy-making domain.

Legislative Competence:

The Court upheld Parliament’s competence under Entry 11-A of the Concurrent List to establish Special Courts. It rejected the argument that the exhaustive provisions in Chapter IV, Part V of the Constitution restricted Parliament’s power to confer additional jurisdiction on the Supreme Court. Article 246 and Entry 77 of the Union List empower Parliament to legislate on the constitution and jurisdiction of the Supreme Court. Consequently, Clauses 2 (creation of Special Courts), 6 (transfer of pending appeals and revisions to Supreme Court), and 10(1) (right of appeal from Special Courts to Supreme Court) of the Bill were held constitutionally valid.

Classification and Equality:

The Bill’s classification—targeting offences committed during the Emergency (June 25, 1975 to its expiry) by persons who held high political or public office—was examined under Article 14’s guarantee of equality. The Court found the classification to be founded on an intelligible differentia with a rational nexus to the object of speedy prosecution of serious offences that threatened democratic institutions. However, it struck down the inclusion of offences committed between February 27, 1975 and June 25, 1975 (the pre-Emergency period) as constitutionally invalid, holding that grouping pre-Emergency offenders with Emergency offenders was artificial and lacked a rational basis.

Procedural Fairness and Right to Life and Liberty:

The Court scrutinized procedural provisions of the Bill under Article 21. While most aspects were upheld as just and fair, three procedural infirmities were identified:

1. The absence of a provision allowing transfer of cases from one Special Court to another to avoid bias or ensure convenience.

2. The provision permitting appointment of retired High Court judges as Special Court judges without guaranteed security of tenure, thus potentially compromising judicial independence.

3. The appointment process allowing the Central Government to nominate judges “in consultation with” but without the concurrence of the Chief Justice of India.

The Government, through the Solicitor General, accepted three suggestions from the Court to address these infirmities:

- Only sitting High Court judges would be appointed to Special Courts.

- Appointment would require concurrence of the Chief Justice of India.

- The Supreme Court would have power to transfer cases between Special Courts.

These assurances were accepted as amendments to the Bill, rendering the procedure just and fair.

Independence of Judiciary:

The Court expressed concern over the proposed Special Courts not fitting within the Constitution’s judicial hierarchy and the risk to judicial independence from executive control in judge appointments and case assignments. It suggested that vesting jurisdiction in High Courts might be a better solution to maintain judicial autonomy and public confidence.

Binding Nature of Advisory Opinion:

Though advisory opinions under Article 143(1) are not strictly binding judgments under Article 141, the Court opined that such opinions should be given great weight and are binding on all courts in India until overruled by the Supreme Court itself.

Conclusion:

The Court answered the reference affirmatively, upholding the constitutionality of the Special Courts Bill, 1978 with the qualification that the classification excludes offences committed before the Emergency and that certain procedural safeguards be incorporated to preserve fairness and judicial independence. It reiterated Parliament’s competence to legislate in this area and its trust that Parliament would heed the Court’s opinion.

This decision balanced the need for speedy justice against constitutional guarantees of equality, fair trial, and judicial independence, setting an important precedent for special legislation and the exercise of the Supreme Court’s advisory jurisdiction.

Statutory provisions

Constitution of India Articles 14, 21, 32, 105(3), 107(1), 108, 111, 124, 126, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 143(1), 146, 214, 226, 227, 231, 235, 237, 246; Commissions of Inquiry Act, 1952; Criminal Procedure Code, 1973; Special Courts Bill, 1978.

In re The Special Courts Bill, (SC) : Law Finder Doc Id # 104773