IN RE THE SPECIAL COURTS BILL, 1978 versus -

Citation: [1979] 2 S.C.R. 476 · Decided: 01-12-1978 · Supreme Court of India · Bench: Y.V. CHANDRACHUD · Disposal: Disposed off

Cited by 34 judgment(s) · cites 15 · see the full citation network in Lexace

Judgment (excerpt)

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IN RE THE SPECIAL COURTS BILL, 1978 
December 1, 1978 
[Y. V. CHANDRACHUD, C.J., P. N. BHAGWATI, V. R. KRISHNA IYER, 
R. S. SARKARIA, N. L. UNTWALIA, S. MURTAZA FAZAL ALI AND 
P. N. SHINGHAL, JJ.] 
Constitution of India--Art. 143-Scope of. 
Special Courts Bill-Parliament if has power to enact the Bill-Whether any 
of its provisions violate the rights under Articles 14 and 21. 
The draft Special Courts Bill 1978 introduced in the Parliament by a pri~ 
vate member seeks to create adequate number of courts to be called special 
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courts. The Bill provides that a special court shall take cognizance of or tr~ 
such cases as are instituted before it or transferred to it in the manner provide.t ~ 
therein. If the Central Government is of opinion that there is prima facie evi~ -· 
dence of the commission of an offence alleged to have been committed Curing 
the period of Emergency by a person who held high public or politjcal office 
in India and that the said offence ought to be dealt with under the At:t, it shall 
make a declaration to that effect in every case in which it is of that opinion. 
A declaration made by the Central Government ca.nnot be called in question 
in any ccurt. 
Clause (7) of the Bill pro~ides that a special ~otnt shall be 
presided over by a sitting Judge of a High Court in India or a persc~ \Vho has 
held the office as a Judge of a High Court in India and nominated by the 
Central Government in consultation with the Chief Justice of India. 
Clause 
10(1) provides that notwithstanding anything contained in the Code of Criminal 
Procedure, an appeal shall lie as of right from any judgment or order of a. 
special court to the Supreme Court of India both on fact and on Ja\v. 
The President made a reference to the Supreme Court under Art. 143(1) 
of the Constitution for consideration of the question whether the Special Courts 
Bill 1978 or any_ of its provisions, if enacted would be constitutionally invalid. 
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Preliminary objections as to the maintainability of the reference were raised 
on the ground that (i) the reference was of a hypothetical and speculative 
character and was vague, general and omnibus; (ii) since the Parliament was 
seized of the Bill it is its exclusive function to decide upon the constitutionality 
of the Bill and if the court withdrew that question for its considera.tion and 
report, it would be encroaching upon the :functions and privileges of the Parlia-
ment, (iii) if the reference were entertained it woi!ld suppl;\nt the sa.lutary 
provision of Art. 32 of the Constitution, (iv) irrespective of 1he view expressed 
by this Court it would be open to the Parliament to discuss the Bill and pass 
or not to pass it with or without amendment, and (v) the. reference raised 
purely political questions which thei court should refrain from a.nsweri'llg. 
HELD: [per majority-Y. V. Cbandrachud, · C.J., P. N. Bhagwati, R. S. 
Sarkaria and S. Murtaza Fazal Ali, JJ.] 
1. (a) It is not necessary that the question on which the op1n1on of this 
Court is sought under Art. 143(1) must have a.risen actually: it is competent 
for the President to make the reference if he is satisfied that the question has 
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RE : SPECIAL COURTS BILL 
477 
arisen or. is likely to arise. 
The plain duty and function of the Court under 
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Art. 143(1) is to consider the question on which the reference is made and 
report to the President its opinion, provided the question is capable of being 
pronounced upon and falls within the powers of the Court to decide. If, for 
any reason the Court considers it not proper or possible to answer the question 
it would be entitled to return the reference by pointing out the impediments in 
answering it. 
The right of this Court to decline to answer a refere.nce does 
not flow merely out of the different phraseology used viz., "may" in clause (1) 
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and "shall" in. clause (2). Even in matters arising under clause (2), the Court 
may be justified in returning the reference unanswered, if it finds for a valid 
reason that the question is incapable of being answered. [502C-F] 
(b) It cannot be said that the reference is of a hypothetical or speculative 
character on the ground that the Bill has yet to become an Act. The assu1np-
...,,- ---tion of every reference under Art. 143 has to be the continued existence of a 
context or conditions on the basis of which the question of law or fact a.rises 
or is likely to arise. 
But the possibility of a c

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