Judgement

CHANDRACHUD, CJI. (for himself and on behalf of P.N. Bhagwati, R.S. Sarkaria and S. Murtaza Fazal Ali JJ.):- On Aug. 1, 1978 the President of India made a reference to this 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. The full text of the reference is as follows:

WHEREAS certain Commissions of Inquiry appointed by the Central Govt. under the Commissions of Inquiry Act, 1952 (Central Act 60 of 1952) have submitted reports which indicate that there is reason to believe that various offences have been committed by persons holding high political and public offices during high political and public offices during the period of operation of the Proclamation of Emergency dated the 25th June, 1975, and the period immediately preceding that Proclamation;

AND WHEREAS investigations 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 respect of whom the investigations reval 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 SC of India thereon;

NOW, THEREFORE, in exercise of the powers conferred upon me by Cl. (1) of Art. 143 of the Constitution, I Neelam Sanjiva reddy, President of India, hereby refer the following question to the SC of India for consideration and report thereon, namely :- 486

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 trial of a certain class of offences."

WHEREAS Commissions of Enquiry appointed under the Commission of Enquiry Act, 1952 have rendered reports disclosing the existence of prima facie evidence of offences committed by persons who have held high 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 25th June, 1975, and during the preceding period commencing 27th Feb., 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 25th June, 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 d