In Re: The Special Courts Bill, 1978 Vs. [1978] INSC 247 (1 December 1978)
ACT: 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.
HEADNOTE:
The draft Special Courts Bill 1978 introduced in the Parliament by a private member seeks to create adequate number of courts to be called special courts. The Bill provides that a special court shall take cognizance of or try such cases as are instituted before it or transferred to it in the manner provided therein. If the Central Government is of opinion that there is prima facie evidence of the commission of an offense alleged to have been committed 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, 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 cannot be called in question in ;my court. Clause (7) of the Bill provides that a special count 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 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 law 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.
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 it6 exclusive function to decide upon the constitutionality of the Bill and if the court withdrew that question for its consideration and report, it would be encroaching upon the functions and privileges of the Parliament. (iii ) if the reference were entertained it would supplant the salutary provision of Art. 32 of the Constitution, (iv) irrespective of the 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 the court should refrain from answering.
HELD: [per majority-Y. V. Chandrachud, 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 opinion of this Court is sought under Art. 143(1) must have arisen actually: it is competent for the President to make the reference if he is satisfied that the question has 477 arisen or is likely to arise. The plain duty and function of the Court under Art. 143(1) is to consider the question on which the reference i6 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 questions 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 reference does not flow merely out of the different phraseology used viz., "may" in clause (1) 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 assumption 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 arises or is likely to arise. But the possibility of a change, even of a fundamental change, cannot make the exercise of the Presidential jurisdiction under Art. 143 speculative or hypothetical. In the press It case there is no speculation about the existence of the Bill and there is nothing hypothetical about its contests as they stand today. The Bill may undergo changes in future but so may the Constitution itself, including Art. 143, under- which the President has made the reference to this Court.
The former possibility cannot make the reference speculative or hypothetical any more than the latter possibility can make it so. The Special Courts Bill is there in flesh and blood for anyone to see and examine. That sustains the reference, which is founded upon the satisfaction of the President that a question as regards the constitutional validity of the Bill is likely to arise and that the question i5 of such a nature and of such public importance that it is expedient to obtain the opinion of this Court upon it. (503B-E l (c) A reference which does not specify with particularity the ground or grounds on which the Bill or any of its provisions may be open to attack under the Constitution is difficult to answer because it gives no indication of the specific point or points on which the opinion of the Court is sought. It is not proper or desirable that this Court should be called upon to embark upon a roving enquiry into the constitutionality of a Bill or an Act. Such a course virtually necessitates the adoption of a process of elimination with regard you all reasonably conceivable challenges under the Constitution. It is not expected of this Court, while answering a reference under Art. 143, to sit up and discover, article by article, which provision of the Constitution is most lawlessly to be invoked for assailing the validity of the Bill if it becomes a law. Speculative opinions or hypothetical questions are worthless and it is contrary to principle, inconvenient and inexpedient that opinions should be given Up.l such questions at all. Whenever a reference is made to this Court under Art 143 of the Constitution, care should be taken to frame specific questions for the opinion of the Court. In the instant reference it is possible to consider specific questions as being comprehended within the terms of the reference but the risk that a vague and general reference may be returned unanswered is real and ought to engage the attention of those whose duty it is to frame the reference.
505 F-G, 507B] (d) The contention that since the Parliament is seized of the Bill, it is its exclusive function to decide upon the constitutionality of the provisions of the 478 Bill betrays a total lack of awareness of the scheme of division of powers under the Constitution. The Court is concerned, not with fanciful theories based on personal predilections, but with the scheme of the Constitution and the philosophy underlying it. The principle is firmly and wisely embedded in the Constitution that the policy of law and the expediency of passing it are matters for the legislature to decide while, interpretation of laws and questions regarding their validity fall within the exclusive advisory or adjudicatory functions of Courts [507D-E] (e) There is equally no force in the contention that if the Court withdrew the question of validity of the Bill for its consideration while the Bill was pending consideration before the Parliament, the Court would be encroaching upon the functions and privileges of Parliament. The President has made a reference under Art. 143(1) and the Court is under a constitutional obligation to consider the reference and report to the President. It cannot be said that any particular function or privilege of the Parliament is encroached upon by this Court. The question whether the provisions of the Bill suffer from any constitutional invalidity falls within the legitimate domain of this Court.
Parliament can discuss and debate the Bill but the ultimate decision on the validity of a law has to be that of the Court, and not of the Parliament. In the absence of any text or authority showing what the privileges of the British Parliament are in regard to the kind of matter before the Court it is impossible to say that there is a violation of the Parliament's privileges. The a,argument that it would be futile to consider the constitutional validity of the Bill because whatever view the Court might take it would still be open to the Parliament to discuss the Bill and to pass or not to pass it, proceeds on an unrealistic basis. Although the opinion of this Court can neither deter the Parliament from proceeding with the Bill nor from dropping it, it cannot be said that even if the Court holds the Bill as unconstitutional the Parliament would proceed to pass it without removing the defects from which it is shown to suffer. [508 F-H; 510 B] (f) The argument that. the reference raises a purely political question is without force. The policy of the Bill and the motive of the mover may be to ensure a speedy trial of persons holding high public or political office who are alleged to have committed certain crimes relating to the period of emergency. The President, however, has not asked the Court to advise him as to the desirability of passing the Bill or the soundness of the policy underlying it. The question whether the Bill or any of its provisions are constitutionally invalid is not a question of political nature which the Court should restrain itself from answering The question referred by the President for the opinion of this Court raises purely legal and constitutional issues which is the right and function of this Court to decide.
[510 D-F] Clauses 2, 6 and 10(1) of the Bill are within the legislative competence of the Parliament. (522H ]
2. (a) The challenge to the legislative competence of Provide to provide for the creation of Special Courts is devoid of substance. By virtue of Art. 246(2) read with Entry 1 1A of the Concurrent List, Parliament has clearly the power to make laws with respect to the Constitution and organisation, that is to say, the creation and setting up of Special Courts. Clause ' of the Bill, ;S therefore, within the competence of the Parliament to enact. By cl. 10(1) of the Bill Parliament clearly has the competence to provide that notwithstanding anything contained in the Code of Criminal Procedure, 1973 an appeal 479 shall lie as of right from any judgment or order of a Special Court to the A Supreme Court both on fact and on law. A law-which confers additional powers on the Supreme Court by enlarging its jurisdiction is evidently a law with respect to the "Jurisdiction and powers" of that Court. [517 C-D; 521 A-B] (b) The argument that the constitution having provided copiously for an hierarchy of courts. it is impermissible to the Parliament to create a court or a class of courts which do not fall within or fit in that scheme has no force. There is nothing in the Constitution which will justify the imposition of such a limitation on the Parliament's power to create special courts. The words to Entry 11A are sufficiently wide to enable the Parliament not merely to set up courts of the same kind and designation as are referred to in the relevant provisions but to constitute and organize, that is to say, create new or special courts subject to the limitation mentioned in the entry as regards the Supreme Court and the High Courts. [524 A&D] (c) It is not correct to say that by reason of the fact that the Special Courts will not have the constitutional status of High Courts nor are they District Courts within the meaning of Art. 235, the creation of Special Courts is calculated to damage or destroy the constitutional safeguards of judicial independence. [524F]
3. (a) The classification provided for by the Special Courts Bill is valid and no objection can be taken against it. [537E] (b) The promulgation of emergency is not and cannot be a matter of normal occurrence in a, nation's life. Offenses alleged to have been 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. This Court is not concerned with the truth or otherwise of the allegations, the narrow question before it being whether, in the first instance, the classification is based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out. The answer to that question can be one and one only, namely, that offenses alleged to have been committed during the emergency by persons holding high public or political offices in India stand in a class apart.
The cover of emergency provided a unique opportunity to the holders of such offices to subvert the rule of law and perpetrate political crimes on the society. Others left out of that group had neither the means nor the opportunity to do so, since they lacked the authority which comes from official position. Thus persons who are singled out by the Bill for trial before Special Courts possess common characteristics and those who fall outside that Group do not possess them. [538 B; 540 A-D] (c) Crimes falling outside the group are of a basically different kind and have generally a different motivation. No advantage can be taken of the suppression of human freedom when the emergency is not in operation. The suppression of people's liberties facilitates easy commission of crimes when public criticism is suppressed, there is no fear of detection. Crimes which are alleged to have been committed during emergency are oblique in their design and selective in their object. They are generally designed to capture and perpetuate political power; and they are broadly directed against political opponents. The holder of a high public office who takes a bribe does it to enrich himself. Though, that deserves the highest condemnation, such crimes are not woven out of the warp and woof of political motivation.
Equal laws have to be 480 applied to all in the same situation and the legislature is free to recognize the degree of harm or evil. Purity in public life is a desired goal at all times and in all situations. But, this Court cannot sit as a super legislature and 6trike down the classification on the ground of under-inclusion on the score that those others are left untouched, so long as there is no violation of constitutional restraints. [540 E-H) (d) If the classification is valid and its basis bears a reasonable relationship with the object of the Bill, no grievance can be entertained under Art. 14. Classification necessarily entails the subjection of those who fall within it to a different set of rules and procedure, which may conceivably be more onerous than the procedure which generally applies to ordinary trials. In almost all of the decisions bearing, on the questions which arise for consideration the especial procedure prescribed by the particular laws was distinctly more onerous than the procedure which governs ordinary trials. But once a classification is upheld by the application of the dual test, subjection to harsher treatment or disadvantageous procedure loses its relevance, the reason being that for the purposes of Art. 14, unequals cannot complain of unequal treatment.
Classification necessarily implies discrimination between persons classified and those who are not members of that class. It is the essence of a classification that upon the class are cast duties and burdens different from those resting upon the general public. The very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality. Some of the provisions of the Bill, cast upon the accused before the Special Court, certain disadvantages as compared with the accused who a.re put up for trial before the ordinary courts, even as some other provisions give to them certain advantages which are denied to others. [542 E-H] The State of West Bengal v. Anywhere Ali Sarkar, [1952] SCR 284; Kathy Raning Rawat v. The State of Saurashtra, [1952] SCR 435; Lachmandas Kewalram Ahuja & Anr. v. the Slate of Bombay, (1952] SCR 710; Syed Qasim Razvi v. The State of Hyderabad & Ors., [1953] SCR 589;
Habeeb Mohamed v. The State of Hyderabad, [1953) SCR 661; Rao Shiv Bahadur Singh & Anr. v. The State of Vindhya Pradesh, [1953] SCR 1188; Kedar Nath Bajoria v.
The State of West Bengal, [1954] SCR 30; Asgarali Nazarali Singaporawalia v. The State of Bombay, [1957] SCR 678; referred to.
(e) The grouping1g together of persons who are alleged to have committed offences during the period of emergency with others who are alleged to have engaged themselves in screening certain offenders prior to the declaration of emergency is tantamount to clubbing together, in the same class, persons who do not possess common qualities or characteristics. It is unquestionably reasonable for the legislature to thinly that the suppression of human liberties during the period of emergency furnished an opportunity to persons holding high public or political offices to commit crimes of grave magnitude which were calculated to destroy democratic values. Offences alleged to have been committed during the period of emergency can be treated as sui generis. The same cannot, however, be said of activities, which preceded the declaration of emergency.
Those doings were open to public criticism and were unprotected by the veil of emergency. The validity of a classification should be tested by broad considerations, particularly when the charge is one of under-inclusiveness.
But 481 persons possessing widely differing characteristics, in the context of their situation- 1 in relation to the period of their activities, cannot by any reasonable criterion be herded in the same class. The ante-dating of the emergency, as it were, from June 25 to February 27, 1975 is wholly unscientific and proceeds from irrational considerations arising out of a supposed discovery in the matter of screening of offenders. The inclusion of offences and offenders in relation to the period from February 27 to June 25, 1975 in the same class as those whose alleged unlawful activities covered the period of emergency is too artificial to be sustained. [545 C-H] (f) The answer to the question whether, those who are alleged lo have committed offences prior to the emergency can be put in the same class as persons who are alleged to have committed offences during the period of emergency, has to be in the negative. [546 c] (g) The classification provided for by cl. 4(1) of the Bill is valid to the limited extent to which the Central Government is empowered to make the declaration in respect of offences alleged to have been committed during the period of emergency, by persons holding high public or political offices. The classification is invalid in so far as it covers offences committed by such persons between February 27 and June 25, 1975. No declaration can therefore be made by the Central Government in regard to those offences and offenders under the present classification. [546 D] (h ) As regards those who are rightly grouped together, since the classification is valid, it is unnecessary for the purposes of Art. 14 to consider whether the procedure prescribed by the Bill is more onerous then the ordinary procedure. The onerousness of the special procedure would be irrelevant in considerations arising under Art. 14, for the reason that the classification is valid (to the extent indicated). But the Bill has got to meet the challenge of other provisions of the Constitution also, in so far as any particular provision is attracted. [546 F: 547 D]
4. (a) There is no provision in the Bill for the transfer of cases from one Special Court to another. Absence of such a provision may undermine the confidence of the people in the Special Courts. The manner in which a Judge conducts himself may disclose a bias; or a Judge may not in fact be biased and yet the accused may entertain a reasonable apprehension on account of attendant circumstances that he will not get a fair trial. To compel an accused to submit to the jurisdiction of a court which, in fact, is biased or is reasonably apprehended to be biased is a violation of the fundamental principles of natural justice and a denial of fair play. In yet another case expediency or convenience may require the transfer of a case, even if no bias is involved. [549D-E] (b) The provision for the appointment of a, sitting High Court Judge as Judge of the Special Court is open to no exception. Though unquestionably retired Judges of High Courts occupy a position of honour and respect in society, one cannot shut one's eyes to the constitutional position that whereas by Art. 217 a sitting Judge of a High Court enjoys security of tenure until he attains a particular age, the retired Judge will hold his office as a Judge of the Special Court during the pleasure of the Government. The pleasure doctrine is subversive of judicial independence. A retired Judge presiding over a Special Court, who display strength and independence may be frowned upon by the 482 Government and there is nothing to prevent it from terminating his appointment as and when it likes. There is no force in the submission that if the appointment has to be made in consultation with the Chief Justice of India, the termination of the appointment will also require similar consultation. The obligation to consult may not necessarily act as a check on an executive which is determined to remote an inconvenient incumbent. ,549 H; 550 B-E] (c) Clause 7 of the Bill violates Art. 21 of the Constitution to the extent that a person who has held office as a Judge of the High Court can be appointed to preside over a. Special Court, merely in consultation with the Chief Justice of India. [550 E] (d) Yet another infirmity from which the procedure prescribed by the Bill suffers is that the only obligation which cl. 7 imposes on the Central Government while nominating a person to preside over the Special Court is to consul the Chief Justice of India. One must look at the matter not so much from the point of view of the Chief Justice of India, nor indeed from the point of view of the Government as from the point of view of the accused and the expectation and sensitivities of the society. It is of the greatest importance that in the name of fair and unpolluted justice, the procedure for appointing a Judge to the Special Court, should inspire the confidence not only of the accused but of the entire community. Administration of justice has a social dimension and the society at large has a stake in impartial and even-handed justice. [550 H: 551 A-B]
5. The fact that the trial is to be held by no less a person than a Judge of a High Court and there is a right of appeal to this Court are salient safeguards of the Bill.
[552 H]
6. The question as to whether the opinion rendered by this Court in the exercise of its advisory jurisdiction under Art. 143(1) of the Constitution is binding as law declared by this Court within the meaning of Art. 141 of the Constitution, may have to be considered more fully on a future occasion but it is to be hoped that the time which has been spent in determining the questions arising in this reference shall not have been spent in vain. Though it is always open to this Court to re-examine the question as already decided by it and to over rule, if necessary the view earlier taken by it, insofar as all other courts in the territory of India are concerned, they ought to be bound by the view expressed by this Court even in the exercise of its advisory jurisdiction under Art. 143(1) of the Constitution.
In St. Xaviers College it was pointed (jut that even if the opinion given in the exercise of advisory jurisdiction may not he binding, it is entitled to great weight. It would be strange that a decision given by this Court on a question of law in a dispute between two private parties should be binding on all courts in this country but the advisory opinion Should bind no one at all, even if, as in the instant case, it is given after issuing notice to all interested parties, after hearing everyone concerned who desired to be heard, and after a full consideration of the questions raised in the reference. Almost everything that could possibly be urged in favour of and against the Bill was urged before this Court and to think that its opinion is an exercise in futility is deeply frustrating. [553 D-G] Estate Duty Bill, [1944] FCR 317, 320, 332, 341;
U.P. Legislative Assembly, [1965] 1 SCR 413, 446-47;
St. Xaviers College, [19751 1 SCR 173, 201-202;
Attorney-General for Ontario v. Attorney-General 483 for Canada, [1912] AC 571, 589; Ram Kishore Sen v.
Union of India, AIR 1965 Cal. 282; Chhabildas Mehta v.
The Legislative Assembly Gujarat State, 1970 II Gujarat Law Reporter 729; The Province of Madras v. Messrs Boddu Paidanna, [1942] FCR 90; Central Provinces case, [1939] FCR 18; Constitutional Law of India by H. M.
Seervai, 2nd Edn. Vol. II, page 1415, para 25.68, referred to.
Investing the High Court’s with jurisdiction to try cases under the Bill may, B: in the circumstances afford the best solution from every point of view. The Chief Justices of High Courts will, in their discretion, assign and allocate particular cases to Judges of their courts. To avoid delays and to ensure speedier trial, no other work may be assigned to the High Court Judge nominated by the Chief Justice to try a case or cases under the Bill. This will obviate the nomination, by the Central Government, of a particular Judge to try a particular case. [554 C-D] Answers to the reference are as follows:
(1) Parliament has the legislative competence to create Special Courts and to provide that an appeal shall lie as of right from any judgment or order of a Special Court to the Supreme Court. Clauses 2 and 10(1) of the Bill are, therefore, within the Parliament's legislative competence;
[554G-H] (2) The classification provided for in cl. 4(1) of the Bill is valid to the extent to which the Central Government is empowered to make a declaration in respect of offences alleged to have been committed during the period of Emergency by persons who held high public or political offices in India. Persons who are alleged to have committed offences prior to the declaration of Emergency cannot validly be grouped along with those who are alleged to have committed offences during the period of Emergency. It is, therefore not competent to the Central Government to make a declaration under cl. 4(l) of the Bill in respect of persons who are alleged to have committed offences between February 27, 1975 and June 25, 1975. [555 A-C] (3) The procedure prescribed by the Bill for the trial of offences in respect of which a declaration can be validly made by the Central Government under cl. 4(1) of the Bill is just and fair except in regard to the following matters:
(a) the provision in cl. 7 of the Bill, under which a retired Judge of the High Court can be appointed as a Judge of the Special Court;
(b) the provision in cl. 7, under which the appointment of a Judge lo the Special Court can be made by the Central Government in consultation with but without the concurrence of the Chief Justice of India;
and (c) the absence of a provision for transfer of a case from one Special Court to another.
(d) The Bill is valid and constitutional in all other respects. [555 D-E] KRISHNA IYER. J. (Concurring)
1. Corruption and repression-hijack development processes, and, in the long run, lagging national progress means ebbing people's constitutional in constitutional means to social justice. And so, to track down and 484 give short shrift to these heavy-weight criminaloids who often mislead the people by public moral weight-lifting and multipoint manifestoes is an urgent legislative mission partially undertaken by the Bill under discussion. To punish such super-offenders in top positions, sealing off legalistic escape routes and dilatory strategies and bringing them to justice with high speed and early finality, is a. desideratum voiced in vain by Commissions and Committees in the past and is a dimension of the dynamics of the Rule of Law. This Bill, breaks new ground contrary to people's resigned cynicism that all high-powered investigations, reports and recommendations end in legislative and judicative futility, that all these valient exercises are but sound and fury signifying nothing. [557 A- B]
2. (a) An Act of this nature, with the major changes mentioned by the Chief Justice to avert collision with Al-t.
21 and with wider coverage to come to terms with Art. 14, is long overdue. [577 G-H] (b) These offenders perfectly fill the constitutional bill as a separate class which deserves speedy prosecution and final punishment by high judicial agencies if restoration of the slumping credence in the constitutional order and democratic development were to be sustained among the masses in Third World countries. The Preamble to the Bill is revelatory of this orientation. [558 C`l (c) There is a reasonable classification implicit in this legislation, but it is perilously near being under- inclusive and. therefore, unequal. For it is a truncated projection of a manifestly wider principle that exalted offenders shall be dealt with by the criminal law with emergent speed so that the common man may knew that when public power is abused for private profit or personal revenge the rule of law shall rapidly run them down and restore the faith of the people in democratic institutions through speedy justice according to law. It is in this sense that very important persons wielding large administrative powers shall, with quick dispatch be tried an(l punished, if guilty. Prompt trial and early punishment may be necessary in all criminal cases. But, raw realism suggests that in a decelerating situation of slow motion justice there is a special case for speedier trial and.
prompter punishment where the offender sits at the top Or the administrative pyramid. [558 H; 559 A-C] (d) The Bill must fail morally if it exempts non- Emergency criminals about whom prior Commission Reports, bear witness. In this larger perspective, `emergency' is not a substantial differential and the Bill nearly recognises this by ante-dating the operation to February, 27, 1975 when there was no 'emergency'. [559 G]
3. The procedure of criminal courts is dilatory, there are appeals upon appeals and revisions and supervisory jurisdiction, baffling and baulking speedy termination of prosecutions, not to speak of the contribution to delay by the Administration itself by neglect of the basic necessaries of the judicial process. Leaving V.V.I.P.
accused to be dealt with by the routinely procrastinating legal process is to surrender to interminable delays as an inevitable evil. Therefore, the Court should not be finical about absolute processual equality and must be creative in innovating procedures compelled by special situations.
[559H]
4. (a) The idiom of Art. 14 is unmistakeable. The power status of the alleged criminal the nature of the alleged crime vis-a-vis public confidence and the imperative need for speedy litigative finality, are the telling factors.
Every difference is not a difference. 'Speedy trial' of offences of a public nature committed by persons who have held high public or political offices in the 485 country and others connected with the commission of such offences' is the heart of the matter. [560 D] (b) During that hushed spell, many suffered shocking treatment. In the words of the Preamble of the Bill, 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 curtailed to a large extent. [560 F] Murthy Match Works etc etc. v. The Asstt.
Collector of Central Excise, etc., [1974] 3 SCR 121 at 130, referred to.
(c) The objects and reasons are informative material guiding the court about the purpose of a legislation and the nexus of the differentia, if any, to the end in view.
Nothing about Emergency period is adverted to there as a distinguishing mark. The clear clue is that all abuse of public authority by exalted public men, shall be punished without the tedious delay in the case of top echeolns. [561 F] Mohammad Shujat Ali & Ors. v. Union of India & Ors., [1975] 1 SCR 449 at 477; State of Gujarat & Anr. v. Shri Ambica Mills Ltd., Ahmedabad, [19741 3 SCR 760 at 782: referred to (d) Civil liberties were suppressed. press censorship was clamped down and judicial powers were curtailed. Even if liberty had not been curtailed, press not gagged or writ jurisdiction not cut down. criminal trials and appeals and revisions would have taken their own interminable delays. It is the forensic delay that has to be axed and that has little to do with the vices of the Emergency. There is no law of limitation for criminal prosecutions. [564 F; 565 B] (e) High powered public and political offenders are not a peculiar feature of the Emergency but has been a running stream for long and bids fair to flow on, therefore, a corrupt continuity cannot be cut up without better justification. [565 E-F] (f) The question, then is whether there is constitutional rationale for keeping out of the reach of speedy justice non-emergency criminals in high public or political offices. Such a Bill, were it a permanent addition to the corpus juris and available as a jurisdiction for the public to compel government, if a prima facie case were made out even against a minister in office, to launch a prosecution before a sitting High Court Judge, would be a wholesome corrective to the spreading evil of corruption in power pyramids. [565 G-H] (g) On constitutional principles, it is possible to sustain this temporary measure which isolates crimes and criminals during a pernicious period from the rest who share the same sinister properties. When a salvationary alternative is available, the Court should opt for it when the attack is under Art. 14, provided the assumptions of fact desiderated by the alternatives are plausible, not preposterous. The anatomy of the Emergency as X-rayed in the Preamble, hi all dark shadows. No court to call illegality to order or halt horrendous torture or challenge high-handed unreason. If this be a potential peril naturally a dangerous situation develops, and unaccountable power once unsheathed, the inauguration and escalation of such abuse becomes a compulsive continuum. Constitutional tyranny is anathema to decent democracy. In that state of nervous breakdown of the people, the right to go to court and prosecute an absolutist in authority for corruption dr misuse of power is illusory.
If 486 you speak up against crimes in high positions, if you complain to court about abuse of power, you may be greeted with prompt detention and secret torture, with judicial relief jettisoned and Press publicity loc-jawed If these macabre maybes were assumed, there could be a noxious nexus between the Emergency season and the sinister crimes covered by this Bill. It follows that a rexus between the differentia and the object is not too recondite to be inferred. [567 A-B] (h) The scary scenario of emergency excesses' had a nexus with non-action against persons in high against authority and escalation of corruption and repression then judicial checks on abuse had gone to sleep. [563 A-B] (i) The fabric of the offences before and during the Emergency is the same. What validates the special legislation is the abnormality of the then conditions, the intensive phase of corrupt operations and the inexpediency of digging up old crimes. Ambica Mills (supra) is the judicial justification for the classification. [570C]
5. (a) The Bill hovers periliously near unconstitutionality (Art. 14) in a certain respects, but is surely saved by application of pragmatic principles rooted in precedents. Nevertheless, justice to social justice is best done by a permanent statute to deal firmly and promptly with super political offenders, since these 'untouchable' and 'unapproachable' power wielders have become sinister yet constant companions of Development in developing countries.
[570 E] Chaganlal Maganlal (P) Ltd. v. Municipal Corporation of Greater Bombay & Ors., [1975] I SCR 1, referred to.
(b) Basic fairness of procedure is necessary. A valid classification with an intelligible differentia and intelligent nexus to the object is needed. Within the class there should be no possibility of using a more burdensome procedure for one and a substantially different one for another. Arbitrariness in this area also violates Art. 14.
[571 D] (c) Assuming that the facilities under the Bill and under the ordinary Code are equally fair, could the Government have indicated one or the other in the ordinary court or the special court on the basis of drawing lots or the first letter of their names, the colour of their skins or like non-sense ? No. The wisdom of Art. 14 will not tolerate such whim. Classify or perish, is the classic test of valid exemption from inflexible equality under the Constitution. [571 E-F] (d) The sure solution to the problems raised by the Reference, consistently with the present object of the Bill, is to make the High Court the custodian of the new jurisdiction. [571G] UNTWALIA, J. (concurring with the majority)
1. In none of the earlier references answered either by the Federal Court or by this Court a, precedent is to be found resembling or identical to what happened in this Special Reference. There is no harm in adopting the method of giving some suggestions from the Court which may obliterate a possible constitutional attack upon the vires of a Bill. It may not be necessary or even advisable to adopt such a course in all References under Art. 143 of the Constitution. But if in some it becomes expedient to do so, as in the instant one it was so, it saves a lot of public time and money to remove any technical lacuna from the Bill if the Government thinks that it can agree to do so. The Bill by itself is not a law. It would be a law would passed by the Parliament.
487 But even at the stag of the Bill when opinion of this Court is asked for, it A seems quite appropriate in a given case to make some suggestions and then to answer the Reference on the footing of acceptance by the Government of such of the suggestions as have been accepted. Otherwise is incongruous for this Court to answer the Reference as it is without taking into account the concessions made on behalf of the Government vis-a-vis the suggestions of the Court. It is manifest that all the three infirmities pointed out in the majority opinion m answer No. 3 vanish after the acceptance in writing by the Government that the three suggestions made by the Court vis-a-vis the alleged three infirmities, namely, 3(b), and 3(c) would be removed from the Bill. [572 D-A]
2. The absence of a provision for transfer of a case from one Special Court to another, makes the procedure unjust or arbitrary. But the alleged infirmities, 3(a) and (b), do not make the procedure unjust or arbitrary. There is no question of the procedure being unjust or arbitrary in respect of any of the three infirmities (a), (b) and (c) enumerated in answer 3 in view of the acceptance by the Government of India of the suggestions emanating from the Court during the course of the hearing of the Reference. The Reference, therefore, stands amended in view of those concessions and the court is now required to answer the amended Reference which means the Reference as if the Bill as proposed incorporates the three concessions made by the Government. Thus the procedure prescribed in the Bill, undoubtedly, becomes just and fair and no longer remains arbitrary in any sense. [573 C-D] SHlNGHAL, J. (Dissenting) Clauses 5 and 7 of the Bill ale unconstitutional and invalid. [573H]
1. (a) The reason given in the Statement of Objects and Reasons of the Bill for excluding the ordinary criminal courts from trying the class of offences referred to therein is congestion of work and not their inferior status or in- capacity to deal with those cases. That object of the Bill would have been served by the creation of additional courts of the same category as the ordinary criminal courts and the making of any procedural changes which may have been considered necessary in that context to exclude avoidable delay in the trial. 1574 F] (b) There would have been nothing unusual if such additional courts had been created to save the ordinary criminal courts, from the burden of more work and to bring the contemplated prosecutions to speedy termination. That was permissible under the existing law. Even if some procedural changes were considered necessary, they could have been worked out within the framework of the law. The special courts envisaged in the Bill are, however, courts, the like of which has It been provided in the Code of Criminal Procedure or any other law and are in fact unknown to the Criminal law of the country. [574 G] (c) The Constitution contemplates that all civil and criminal courts in State, other than the High Court, shall be no other than the Subordinate Courts over which the High Court shall exercise the fullest superintendence and control and that the presiding officers of those courts shall be under the control of the High Court and of no other authority. That is necessary to ensure the independence of every court dealing with civil and criminal matters. [576 D] (d) It may be permissible to create or establish civil and criminal courts in a state with designations other than those expressed in article 236, or any existing designation in the Codes of Civil and Criminal Procedure. but that is far 488 from saying that it is permissible to establish a hierarchy of courts other than that envisaged in the Constitution.
[576 E]
2. (a) The Constitution has made ample and effective provision for the establishment of a strong, independent and impartial judicial administration in the country with the necessary complement of civil and criminal courts. it is not permissible for Parliament or a state Legislature to ignore or bypass that scheme of the Constitution by providing for the establishment of a civil or criminal court parallel to a High Court in a state or by way of an additional or extra or a second High Court or a court other than a court subordinate to the High Court. Any such attempt would be unconstitutional and would strike at the independence of the judiciary which he so nobly been enshrined in the Constitution and so carefully nursed over the years. [576 G] (b) The Constitution provides for the appointment of district judges and other judicial officers in the States.
In a large number of cases this Court had declared that it is the High Court which is the sole custodian of the control over the State Judiciary which in fact is the life blood of in independent judicial administration and the very foundation of any real judicial edifice The Constitution has not considered even the existence or continuation of Magistrates who are outside the control of the High Court to be desirable. It is beyond doubt that the Constitution does not permit the establishment of a criminal court of the status of a court presided over by a District Judge which is not subordinate to the High Court and does not permit the establishment of a court similar to the High Court or a court parallel to the High Court. [577 C; 578 A-B] The State of West Bengal v. Nripendra Math Bagchi, [1966] 1 SCR 771, Chandra Mohan and others, v. State of U.P. & Ors., [1967] 1 SCR 77; State of Assam etc. v. Ranga Mohammad & Ors., [1967] J SCR 454; The State of Orissa v. Sudhansu Sekhar Misra & Ors., [968] 2 SCR 154; State of Assam & Anr. v. 5. N. Sen & Anr., [1972] 2 SCR 251; Shamsher Singh & Anr. v. State of Punjab [1975] 1 SCR 814; High Court of Punjab & Haryana v.
State of Haryana & Ors. etc., [1975]) SCR 365; State, of Haryana v. Inder Prakash Anand, A.I.R. 1976 SC 1841;
Chief Justice of Andhra Pradesh & Ors. v. L. V. A. Dixitulu & Ors. [1979] 1 S.C.R. 26. referred to.
(c) Neither s. 6 of the Code of Criminal Procedure 1973 nor s. 6 of the Criminal Law Amendment Act, 1952 justifies the argument that special courts of the nature contemplated in the Bill would be created under the scheme of the Constitution. Although s. 6 of the Code of Criminal Procedure states that the five classes of criminal courts stated in it shall be in addition to the High Court and courts that may be constituted under any law, it cannot be said that it pro-ides tor the constitution of courts parallel to or on the same footing as the High Court or of criminal courts which are not subordinate to the High Courts Similarly, special judges appointed under s. 6 of the Criminal Law Amendment Act are subordinate to the High Court and fit in the scheme of the independence of the judiciary envisaged by the Constitution. [578 E-Fl (d) The attempt to justify the creation of special courts by reference to Part XIVA of the Constitution which provides for establishment of administrative Tribunals cannot be sustained because such Tribunal are not meant for the trial of offences referred to in the Indian Penal Code.
They may well be said to be quasi-judicial Tribunals, [579 D] 489 (e) The Special Courts contemplated by clause 2 of the Bill will not be on the same footing as the High Courts and will, to say the least, be lesser or inferior courts.
1579 E] (f) Clause 7 of the Bill provides that a special court shall be presided over by a "sitting judge" of a High Court, but it will not be permissible or proper to do so as that court is lesser and inferior to a High Court. In all probability, sitting judges of High Courts will refuse to serve as presiding judges of special Courts, and there is no provision in the Constitution under which they can be compelled, or ordered against their will, to serve there.
That eventuality will make the provisions of the Bill unworkable at any rate, the possibility that the sitting High Court Judges may not agree to serve as presiding judges of Special Courts is real, and their very refusal will embarrass the judicial administration and lower the prestige of the judiciary for clause 7 of the Bill provides for their nomination in consultation with the Chief Justice of India.
[579 F-H]
3. (a) Equality before the law, or speaking in terms of the present controversy, equality in criminal justice, is the universal goal of all democratic forms of government, for no one can ever deny that all persons charged with crime must, in law, stand on the same footing at the Bar of justice. That equality should be assured not only between one accused and another, but between the prosecution and the accused. That is what the Constitution has carefully, assuredly and fully provided for every citizen. Article 21 is, by itself, enough to bring that out. [580 C-D] (b) In order to fulfill the guarantee of Art. 21 the procedure prescribed by law for the trial of criminal cases has to be fair, just and reasonable, and not fanciful, oppressive or arbitrary. Taken together, clauses S, 7 and 8 of the of Bill provide for the trial of the accused only by special courts to be presided over by a judge nominated by the Central Government and clauses 4, 5 and 7 vest the power of designating the special court in which an accused is to be tried exclusively in that Government. The Bill enables the Central Government to decide which of the accused will be tried by which of its nominated judges. Thus if several special courts are created by the Central Government in Delhi and they are all presided over by judges nominated by the Central Government, the power of nominating the judge for any particular case treble in Delhi shall vest in the Central Government. Such a procedure cannot be said to be fair, just and reasonable within the meaning of Art.
21 and amounts to serious transgression on the independence of the judiciary. [581 G; 587 D-F] (c) The question of the Central Government or the State Government nominating a judge of the Supreme Court or of the High Court for dealing with a particular case does not and cannot arise. So too in regard to the judges and magistrates of the subordinate courts, sufficient safeguards have been provided, in the relevant laws for their appointment by the High Court. It is not permissible for the executive to appoint a particular judge or magistrate to preside over the trial of a particular accused under the Code of Criminal Procedure. That is fair, just and reasonable and relieves the accused of any possible oppress on. 1583 A-B l (d) Moreover in the case of trials before special courts, the trial by the fiat of a successor government, however, justified, is noticed with scepticism The suspicion that the trial is motivated by political considerations, that it would not be just and fair or that it would lead to injustice, would be lurking 13-978SCI/78 490 in the mind of the accused. It is therefore necessary that everyone concerned, including the accused, should be convinced that the executive had the best of intentions in ordering the trial and had provided for a fair and straight forward procedure, and the cleanest of judges, for the trial in an open and fearless manner. [583 C&E] (e) If the result of the trial has to carry conviction with the people as a whole, and is meant to acquaint them with the true character of the persons who have committed the offences for the survival of the democratic institutions and cleanliness of the political life as professed in the statement Of Objects and Reasons of the Bill, it is in the interest of those making the declaration under clause 4 to convince everyone, including the accused, that the trial is not spectacular in purpose and does not expose those facing it to a risk greater the that taken by any other accused at an ordinary trial, under the ordinary law. Human dignity is a concept enshrined in the Constitution and this treasure should be the priceless possession and solid hope of all our fellow-citizens. including those who have to face trials for offences charged against them. [583 F-H] (f) An attempt, like the one made in the present Bill to usurp an important judicial power and vest it in the executive is a serious inroad of the Independence of the judiciary and is fraught with serious consequences. It has, therefore, to be put down at the very inception for it may otherwise give rise to a prospect too gruesome to envisage and too dangerous to be allowed to have the sanction of law.
[584 H] Liyanage & Ors. v. Regina [1966] 1 All. E.R. 650 referred to.
ADVISORY JURISDICTION: SPECIAL REFERENCE No. 1 OF 1978 (Under Art. 143(1) of the Constitution of India).
S. V. Gupte, Attorney General, R. N. Sachthey and R. B. Datar for the Attorney General for India.
S. N. Kackar, Sol. Genl., R. N. Sachthey and S. Markandaya for the Union of India.
K. D. Chattered, Adv. Genl. (Bihar), U. P. Singh for the Adv. Genl. (Bihar).
A. K. Malik, Adv. Genl., (J&K), Altaf Ahmed and Brij, Behari Singh for the A.G. J&K.
R. N. Byra Reddy, Adv. Genl., S. S. Ray and A. K. Sen, N. Nettar, J. S. Sinha and Mrs. Alva Margaret for the A. G.
Karnataka.
Abdul Khader, Adv. Genl., Kerala and K. M. K. Noir for the, A.G., (Kerala) R. S. Bhonsle, Adv. Genl., (Maharashtra), V. C. Kotwal and M. N. Shroff, for the A.G. Maharashtra.
B. M. Patnaik, Adv. Genl., (Orissa), Miss Uma Mehta and R. K. Mehta for the A.G., (Orissa).
491 R. K. Rastogi, Adv. Genl. (Rajasthan), S. M. Jain and M. I. Khan, for the A.G., Rajasthan.
V. P. Raman, Adv. Genl. (Tamil Nadu) and A. V. Rangam, for the A.G." Tamil Nadu.
O. P. Rana, for the A.G. (U.P.).
S. K. Acharya, Adv. Genl. (West Bengal), Sukumar Basu and S. Chatterjee, for the A.G., West Bengal.
F. R. Mridul, H. K. Puri, Vijendra Jain, Arunashwar Gupta, Vivek Sethi and Vijay Behl, for the Intervener (Mr.
V. C. Shukla) .
J . S. Wasu and O. P. Sharma, for the Intervener (Gyani Zail Singh) .
M. C. Bhandare and O. P. Sharma of the Intervener (Harideo Joshi).
A. K. Sen, Bishambar Lal and Miss Manisha Gupta for the Intervener (Dhirendra Brahmachari).
M. C. Bhandare, Mrs. Sunanda Bhandare, R. Nagarathnan, Wazir Singh and Miss Malini Poduval, for the Interveners (Bansi Lal, Shiv Kumar Agarwal and Surinder Singh).
A. S. Bobde, M. R. Barot, Mrs. Sunanda Bhandare, R.
Nagarathnan, Wazir Singh, Miss Malini Poduval and R. N.
Mittal, for the Intervener (C. M. Stephen).
Frank Anothony, Mrs. S. Bhandare, M. R. Barot, R. N.
Mittal R. Nagarathnam and Miss Malini Poduval, for the Intervener (Kamlapati Tripathi).
P. Shiv Shankar and B. Goburdhan, for the Intervener (Pranab Mukherjee) .
D. D. Chawla and N. S. Das Bahl, for the Intervener (R. K. Dhawan) .
Shiva Pujan Singh, for the Intervener (Jagmohan and P. S. Bhinder) .
M. C. Bhandare, N. Nettar, J. S. Sinha and Mrs. Alva Margaret for the Intervener (Dev Raj Urs).
A. N. Karkhanis, for the Intervener (Narain Dutt Tiwari).
A. S. Bobde, 1. N. Misra, V. C. Mahajan, Ram Lal, D.
Goburdhan, for the Interveners (Jagannath Misra and Ram Lal).
A.G. Noorani, Miss Rani Jethmalani and H. N. Hingorani, for the Intervener (Ram Jethamalani) P. Silva Shankar, Frank Anthony, P. P. Rao and G. N.
Rao, Interveners for the State of Andhra Pradesh.
492 S. S. Ray, P. N. Ramalingam and A. T. M. Sampath for the applicant Intervener (State of J&K and for the Advocate General, Haryana) .
S. C. Mohanta, Adv. Genl (Haryana), Naubat Singh (Dy.
Adv. Genl.), R. N. Sachthey and Girish Chandra, for the Advocate General, Haryana Chandrachud, C.J. delivered the Opinion on behalf of Bhagwati, Sarkaria and Fazal Ali, JJ. and himself. Krishna Iyer, Untwalia and Shinghal, JJ. delivered separate Opinions.
CHANDRACHUD, C.J.-On August 1, 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 that 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 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 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 Or 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 pro visions;
AND WHEREAS there is likelihood of them.
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;
493 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, I, Neelam Sanjiva Reddy, President of India, hereby refer the following question to the 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" 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 Commissions 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 February, 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 494 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 is 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 cognisance 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 495 alleged to have been committed during the period mentioned in the preamble by a person who held high 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.
(2) Such declaration shall not be called in question 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 shall 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 section 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 said 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.
496 (2) Except as aforesaid, no appeal or revision shall lie to any court from any judgment or order of a Special Court".
After receipt of the reference On August 1, 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 the 4th August, 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 September 4, 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 September 11, 1978 subje