IN RE THE SPECIAL COURTS BILL, 1978 versus -

IN RE THE SPECIAL COURTS BILL, 1978 versus -

Parliament has the legislative competence to enact the Special Courts Bill by virtue of Article 246(2) read with Entry 11A of the Concurrent List. The classification of offences committed during Emergency by holders of high office is valid. However, clauses allowing the executive to appoint judges for specific cases (clauses 5 and 7) infringe judicial independence and violate Article 21 as the procedure established must be fair and reasonable. The Bill is constitutionally invalid to the extent it allows the executive to designate the judge for particular cases.

Parties
Referrer: President of India; Respondent: Union of India; Amicus Curiae: Mr. Jethamalani
Jurisdiction
India
Judgment Date
01 December 1978
Procedural Posture
Reference Under Article 143(1) of the Constitution / Supreme Court Advisory Opinion
Outcome
Reference answered - Parliament competent to enact Special Courts Bill, but clauses 5 and 7, which allow executive nomination of judges for individual cases, are constitutionally invalid.
Legal Topics
Legislative Competence, Judicial Independence, Equality Before Law, Procedure Established by Law
Constitutional Law Criminal Procedure Legislative Competence Judicial Independence Equality Before Law Procedure Established by Law

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Parties

President of India

Referrer

Union of India

Respondent

Mr. Jethamalani

Amicus Curiae

Procedural Posture

Reference Under Article 143(1) of the Constitution / Supreme Court Advisory Opinion

Legal Issues

  1. 1 Whether Parliament is competent to enact the Special Courts Bill, 1978
  2. 2 Whether any provisions violate Article 14 (Equality) and Article 21 (Life and Liberty) of the Constitution

Ratio Decidendi

Parliament has the legislative competence to enact the Special Courts Bill by virtue of Article 246(2) read with Entry 11A of the Concurrent List. The classification of offences committed during Emergency by holders of high office is valid. However, clauses allowing the executive to appoint judges for specific cases (clauses 5 and 7) infringe judicial independence and violate Article 21 as the procedure established must be fair and reasonable. The Bill is constitutionally invalid to the extent it allows the executive to designate the judge for particular cases.

Court Disposition

Reference answered - Parliament competent to enact Special Courts Bill, but clauses 5 and 7, which allow executive nomination of judges for individual cases, are constitutionally invalid.

Orders

  • Report to the President given; Parliament may enact the Bill subject to removal of unconstitutional provisions.