- (1.) On 1/08/1978, the President of India made a reference to this court under Article 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. The full text of the reference is as follows: Whereas certain Commissions of Inquiry appointed by the central government under the Commissions of Inquiry Act, 1952 (Central Act 60 of 1952) have submitted reports which indicate tha there is reason to believe that various offences have been committed by persons holding high political and public offices during the period of operation of the Proclamation of Emergency dated 25/06/1975, and the period immediately precedincg thatproclamation; And whereas inv estigations into such offences are being made in accordance with law and are likely to be completed soon; And whereas suggestions have been made that the persons in respert 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 the Constitution, 1, Neelam Sanjiva Reddy, President of India, hereby. refer the following question tothe Supreme court of India for consideration and report thereon, namely: Question: (1) Whether the Bill or any of the provisions thereof, if enacted, would be constitutionally invalid New Delhi, Dated 1st day of August, 1978 PRESIDENT OF INDIA
(2.) Annexed to the order of reference is a copy of the Bill which runs thus: The SPECIAL courts BILL, 1978 A bill to provide for the certain class of offences Whereas Commissions of Enquiry appointed under the Commissions of Inquiry Act, 1952 have rendered reports disclosing the existence of 395 prima fade evidence of offences committed by persons who have held nigh public or political offices in the country and others connected with the commission of such offences during the operation of the Proclamation of Emergency dated June 25, 19/5, and during the preceding period commencing 27/02/1975 when it became apparent that offenders were being screened by those whose duty it was to bring them to book; And whereas investigations conducted by the government through its agencies have also disclosed similar offences committed during the period aforesaid; And whereas the offences referred to in the recitals aforesaid were committed or continued during the operation of the Promulgation of Emergency dated 25/06/1975, during which a grave emergency was clamped on the whole country, 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 crippled to a large extent; And whereas it is the constitutional, legal and moral obligation of the State to prosecute persons involved in the said offences; And whereas the ordinary criminal courts due to congestion of work and other reasons cannot reasonably be expected to bring those prosecutions to a speedy termination; And whereas it is imperative for the functioning of parliamentary democracy and the institutions created by or under the Constitution of India that the commission of offences referred to in the recitals aforesaid should be judicially determined with the utmost dispatch; And whereas it is necessary for the said purpose to create additional courts presided over by a sitting judge of a High court in India or a person 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 congnizance 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, hign 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 in every case in which it is of the aforesaid opinion. 396 (2) Such declaration shall not be called in queition in any court. 5. On such declaration being made any prosecution in respect of such offence shall be instituted only in a Special court designated by the central government and any prosecution in respect of such offence pending in any court in India shall stand transferred to a Special court designated by the central government. 6. 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, whether pending or disposed of, is itself pending in any court of appeal or revision, the same snail stand transferred for disposal to the Supreme court of India. 7. A Special court shall be presided over by a sitting judge of a High court in India or a person who has held office as a judge of a High court in India and. nominated by the central government in consultation with the chief justice of India. 8. A Special court shall have jurisdiction to try any person concerned in the offence in respect of which a declaration is made under S. 4 either as principal, conspirator or abettor and all other offences and accused persons as can be jointly tried therewith at one trial in accordance with the Code of Criminal Procedure, 1973.9. A Special court shall in the trial of such cases follow the procedure prescribed by the laid Code for the trial of warrant cases before a Magistrate and save as otherwise provided in this Act be governed by the said Code. 10. (1) Notwithstanding anything in the said Code, 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 law. (2) Except as aforesaid, no appeal or revision shall lie to any court from any judgment or order of a Special court.
(3.) After receipt of the reference on August I, a notice was issued to the Attorney-General on the 2nd to appear before the court on the 4th for taking directions in the matter. On August 4, upon hearing the Attorney-General the court directed, inter alia, that- (1) notice of the reference be given to the Union of India and the Advocates General of the States requiring them to submit their written briefs before 4/09/1978; (2) notices be published in five newspapers at Bombay, New Delhi, Calcutta, Madras and Bangalore 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 11/09/1978 subject to the reasonable convenience of all concerned.;