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Case Analysis: Re Special courts Bill AIR 1979 SC 478

Authored by Satvica Dixit

Keywords: Special Courts Bill, Central government, Independency of the Judiciary, Constitution, Emergency, Public office, Parliament, High Court Judges.

Case Analysis: Re Special courts Bill AIR 1979 SC 478


This article critically analyses the landmark case of Re Special Courts Bill wherein the constitutionality of the Special Courts Bill,1978 was put on trial and tested. This is one of the landmark cases in the history of the evolving Constitution. Cases like these give the absolute and appropriate chance to the Constitution to evolve in its best form of Democracy for the country. This case was instituted with the only objective of saving and keeping up with the basic structures of the Constitution.


The Special Courts Bill,1978 was introduced in the Parliament which seeks to create a sufficient number of courts to be called special courts which shall take cognizance of and try cases initiated in the times of Emergency. If the Central Government with proper prima facie evidence found about the commission of an offense during the period of Emergency by a person who held high public or political office in India and that the said offense ought to be debit with under the Act, the govt. can make a declaration to that effect in every case in which it is of opinion. A declaration made by the Central Government cannot be called in question in the court.

Case No.:

AIR 1979 SC 478, 1979 2 SCR 476, (1979) 1 SCC 380

Parties to the case:

Petitioner: The President

Respondent: Union of Indian and Advocate General of 22 States

The Bench of the case:

Y Chandrachud, N Untwalia, P Bhagwati, P Shinghal, R Sarkaria, V K Iyer, S.M. Ali

Date of Judgement:

1st December 1978

Concerned provisions of the Law:

1. Article 143(1) of the Indian Constitution (Advisory Jurisdiction of SC)

2. Article 246(2) of the Indian Constitution

3. Article 14 of the Indian Constitution

4. Article 21 of the Indian Constitution

Facts of the Case:

The Clause (5) of the Special Courts Bill,1978 avers that the declaration made by the Central government regarding the offenses committed by the people holding public offices in the times of Emergency will be instituted in these Special courts only and if pending will be transferred to these Special courts only. The Clause (7) states that these special courts shall be presided over by a sitting Judge of a High Court in India or a person who has held the office as a Judge of any High Court in India and nominated by the Central Government in agreement with the Chief Justice of India. The President thought that these provisions as directly related to legislature violate the independent Judiciary which is one of the basic features of the Constitution and this matter is of such public importance that it is expedient to obtain the opinion of the Court upon it.

So, the President made a reference under Art. 143(1) of the Constitution as under Advisory Jurisdiction of the Supreme Court for consideration of the question whether the Special Courts Bill 1978 or any of its provisions, if enacted would be constitutionally invalid. The maintainability of this reference was raised on the ground that the Bill was violative of Fundamental Rights enshrined in the Constitution and attacks on the independence of the Judiciary.

Issues in concern:

1.Whether this reference made by the President is maintainable on the grounds provided?

2. This reference even if maintainable is under Advisory Jurisdiction but whether it will be considered as one of the orders from the Supreme court?

3. Whether the Bill or any of the provisions thereof, if enacted, would be constitutionally invalid?

Argument by the Parties:

The Council on behalf of the Petitioner argued that the Constitution has effective provisions for the establishment of a strong, independent and, impartial Judiciary in the country with the necessary complement of civil and criminal courts and it is not permissible for Legislature to ignore or bypass that scheme by providing for the establishment of a civil or criminal court parallel to a High Court in a state or by way of extra or a second High Court. Any such attempt to do this would be unconstitutional and will strike at the independence of the Judiciary which is nobly been enshrined in the Constitution. Moreover, the Counsel argued that the trial of a certain class of people in these Special Courts is violative of Article 14 and the classification done for this group has no reasonable nexus attached to it.

Clause 7 talks about the appointment of High Court Judges by the government in these Special Courts, there is no choice left for these judges as to whether they want to preside which is against Article 21 i.e. Right to Life. The procedure prescribed by law given in Article 21 for the trial of criminal cases has to be fair, just and reasonable and not fanciful, oppressive, or arbitrary and this procedure for Special courts is strenuous in comparison to what the ordinary courts generally adopt and therefore it is subjecting a class of persons left to be chosen by the government possibly with an evil eye to hostile and unfavorable treatment.

The Council on behalf of Respondents asked the court not to make this reference maintainable as it is hypothetical and speculative in character and the objections raised are vague, general, and omnibus. In their arguments, they said that the Legislature has the power to make laws concerning the organization of the Constitution under Article 246(2) read with Entry 11A of the Concurrent List. Moreover, it is futile for the court to consider the constitutionality of the Bill because whatever may be the view, it will again be open to the Parliament to discuss the Bill and to pass or not to pass it, with or without the amendment.

They further argued that the classification of the group provided for the Special Courts Bill is valid because the promulgation of emergency is not and cannot be a matter of normal occurrence in a nation and the cover of emergency provides a unique opportunity especially to the holders of public offices to subvert the rule of law and perpetuate political crimes in the society. So, the offenses committed during the period of emergency constitute a class by themselves and so do the persons who are alleged to have utilized the high public or political offices held by them as a cover for committing those offenses. The Counsel also said that the formation of these Special courts are meant for the assistance of the other courts and not to hamper in their course of work.


The Court while giving its opinion under the Advisory Jurisdiction said that Equality before Law is one of the core principles of the Democracy and even the person who is a criminal stand on the same footing at the Bar of justice. Such equality should be assured not only between one accused and another but also between the prosecution and the accused. The court said that the procedure in this Bill 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.

Looking from the way that procedures are specified in the Bill, it becomes very difficult to convince the accused of the lurking suspicion that the trial is not motivated by political considerations and will be just, fair and will ultimately lead to justice. It should therefore be the effort of those who are ordering the trial to not do such things that may even remotely justify any such suspicion. They should do all they can to convince every other person concerned including the accused that they had the best of intentions in ordering the trial and that it will provide a fair and just procedure along with the cleanest of judges for the trial in a fearless manner. The Court further in its opinion held Clauses 5 and 7 of the Bill as constitutionally invalid.