# [1979] 2 S.C.R. 476 - **Citation:** [1979] 2 S.C.R. 476 - **Court:** Supreme Court of India - **Decided:** 1978-12-01 - **Bench:** Y. V. Chandrachud, P. N. Bhagwati, V. R. Krishna Iyer, R. S. Sarkaria, N. L. Untwalia, S. Murtaza Fazal Ali, P. N. Shinghal - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1979-2-s-c-r-476-7614 - **Pages:** 110 ## Headnote 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. The draft Special Courts Bill 1978 introduced in the Parliament by a pri~ vate 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 tr~ such cases as are instituted before it or transferred to it in the manner provide.t ~ therein. If the Central Government is of opinion that there is prima facie evi~ -· dence of the commission of an offence alleged to have been committed Curing the period of Emergency by a person who held high public or politjcal office in India and that the said offence ought to be dealt with under the At:t, 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 ca.nnot be called in question in any ccurt. Clause (7) of the Bill pro~ides that a special ~otnt shall be presided over by a sitting Judge of a High Court in India or a persc~ \Vho 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 Ja\v. 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. -y 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 its exclusive function to decide upon the constitutionality of the Bill and if the court withdrew that question for its considera.tion and report, it would be encroaching upon the :functions and privileges of the Parliament, (iii) if the reference were entertained it woi!ld suppl;\nt the sa.lutary provision of Art. 32 of the Constitution, (iv) irrespective of 1he 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 thei court should refrain from a.nsweri'llg. HELD: [per majority-Y. V. Cbandrachud, · 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 op1n1on of this Court is sought under Art. 143(1) must have a.risen actually: it is competent for the President to make the reference if he is satisfied that the question has y--~ .. RE : SPECIAL COURTS BILL 477 arisen or. is likely to arise. The plain duty and function of the Court under A Art. 143(1) is to consider the question on which the reference is 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 question 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 refere.nce does not flow merely out of the different phraseology used viz., "may" in clause (1) B 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 assu1np- ...,,- ---t ## Text _Characters 0–39,481 of 304,098. This is a partial read: ask again with offset=39481 for what follows._ A B c D E p .G H 47 6 IN RE THE SPECIAL COURTS BILL, 1978 December 1, 1978 [Y. V. CHANDRACHUD, C.J., P. N. BHAGWATI, V. R. KRISHNA IYER, R. S. SARKARIA, N. L. UNTWALIA, S. MURTAZA FAZAL ALI AND P. N. SHINGHAL, JJ.] 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. The draft Special Courts Bill 1978 introduced in the Parliament by a pri~ vate 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 tr~ such cases as are instituted before it or transferred to it in the manner provide.t ~ therein. If the Central Government is of opinion that there is prima facie evi~ -· dence of the commission of an offence alleged to have been committed Curing the period of Emergency by a person who held high public or politjcal office in India and that the said offence ought to be dealt with under the At:t, 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 ca.nnot be called in question in any ccurt. Clause (7) of the Bill pro~ides that a special ~otnt shall be presided over by a sitting Judge of a High Court in India or a persc~ \Vho 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 Ja\v. 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. -y 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 its exclusive function to decide upon the constitutionality of the Bill and if the court withdrew that question for its considera.tion and report, it would be encroaching upon the :functions and privileges of the Parliament, (iii) if the reference were entertained it woi!ld suppl;\nt the sa.lutary provision of Art. 32 of the Constitution, (iv) irrespective of 1he 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 thei court should refrain from a.nsweri'llg. HELD: [per majority-Y. V. Cbandrachud, · 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 op1n1on of this Court is sought under Art. 143(1) must have a.risen actually: it is competent for the President to make the reference if he is satisfied that the question has y--~ .. RE : SPECIAL COURTS BILL 477 arisen or. is likely to arise. The plain duty and function of the Court under A Art. 143(1) is to consider the question on which the reference is 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 question 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 refere.nce does not flow merely out of the different phraseology used viz., "may" in clause (1) B 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 assu1np- ...,,- ---tion 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 a.rises 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 present case there is no speculation about the existence of the Bill and there is nothing hypothetical about its contents as they stand today. The Bill may undergo changes in future but so may the Cor:.stitutio1,1 itself, including Art. 143, under v.1hich the President bas made the referen'l:'e to this Court. The former possibility cainnot make the reference speculative or hypothetical any more than the latter possibility can make it w. The Special Courts Bill is there in flesh a.nd 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 va1idity of the Bill is likely to arise and that the question is of such a nature and of such public importance tha.t it is expedient to obtain the opinion of this Court upon it. [503 B-EJ ( c) /\. reference which does not specify with particularity the ground or grounds on whkh the Bill or alfly 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 ir.i.to the constitutionality of a Bill or an Act. Such a course v'jrtuaJly necessitates the adoption of a process of elimination with regard to all reasonably conceivable challenges under the Constitution. It is not expected of this Court, while answering a refereoce under Art. 143, to sit up and dis~ cover, article by article, which provision of the Constitution is most likely to be· invoked for assailing the validity of the Bill if it becomes a law. Speculative opinions or hypothetical questions are ¥.urthless and it is contra.ry to principle, inconvenient and inexpedient that opinions should be given upon such questions at all. Whenever a reference is made to this Court under Art. 143 of the Comtitution, care should be taken to frame specific questions for the opinion of the Court. In the instant reference it is possible to con'iider specific questions as being comprehended within the terms of the reference but the risk that a vague and general reference ma.y be returned unanswered is real ::ind ought to engage the attention of those whose duty it is to frame the reference. [505 E-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 c D E F G ff 47 8 SUPREME COURT REPORTS [1979] 2 s.c.R. A Bill betrays a tctal lack of a\vareness of the scheme of division of poY.'ers under the Constilution. The Court is concerned, not with fanciful theories based on personal predilictions, but with the scheme of the Constitution and the philo· sophy 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 adjudica.tory functions of B Courl' [507 D-E] c D 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 Jiending c0'.1siqeration 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 ..........,- a.nd debate the Bill but the ultimate decision on the validity of a la\v has to be that of the Court, and not of the Parliament. In the absence of any text or authority showing \vhat 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.rgumeut 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 remo\'ing the defects from Vihich it is shO\Vn 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 arc alleg~d 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 v.rhich is the right and function of thi$ Court to decide. [510 D-F] E Clauses 2, 6 and 10(1) of the Bill are within the legislative competence H of the Parliament. [522 H] 2. (a) The challenge to the legislative competence of Parliament to provide for the creation of Special Courts is devoid of substance. By virtue of A1t. 246(2) read with Entry l!A of the Concurrent List, Parliament has cleairly the power to make laws with respect to the Constitution a1,1d organisation, that is to say, the creation and setting up of Specia~ Courts. Clause 2 of the Bill, is therefore, within the competence of the Parliament to enact. By cl. 10( 1) of the Bill Parliament clearly bas the co.mpetence to provide that notwith~ standing a11ything contained in the Code of Criminal Procedure, 1973 an o.ppeal ... I 479 shall lie as of right from any judgment or order of a Special Court lo the A Supreme C:ourt both on fact and on law. A law which confers additional powers on the Supreme Court by enlarging its jurisdiction is evidently a Jaw with respect to the "Jurisdiction and powers" of that Court. [517 C-D; 521 A-B] (b) The argument that the c1Jnstitution having provided copiously for an hierarchy of courts, it is in1permissible 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 of Entry 1 lA 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 organise, that is to say, create new or '.>pecial 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 reaso'.:l of the fact that the Special Courts will net haye the constitutional status of }ligh Court-s nor are th~y Di~.trict Courts within the meaning of Art. 235, the creation of Sp~ial Courts is calculated to damage or destroy the constitutional safegunrds of judicial independence. [524F] 3. (a) The classification provided for by the Special Courts Bill is valid and no obJcctio'.1 can be taken against it. [537E] (b) The promulgation of emergency is not and cannot be a m.:.tter of normal occurrence in a. nation's life. Offences alleged to have been commit~ed during the period of emergency coo.stitute a class by themselves and so do the persons who are alleged to have utilised the high public or political offices lJ.eld by them as a cover for committing those offences. This Court is not c0ncerned B c D with the· truth or otherwise of the allegations, the narrow question before it E being whether, in the first instance, the classification is based on some qualities or characteristics which are to be found i'.:l 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 offences alleged to have been committed during the emergency by persons holding high public or political offices i!l India ~tand in a class apart. The cover of emergency provided a unique opportunity to the holders of such offices to subvert the rule of Ia.w and perpetrate political F 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 co!l1es from official position. Thus persons who are singled out by the Bill for trial before Special Courts possess common characteristics a"J.d those v,rho fall outi.ide that group do not possess them. [538 B; 540 A-D] ( c) Crimes falling outside the group are of a basically different kind ~nd have· generally a different motivation. No advantage can be taken of the suppression of human freedom when the emergency is not in operatioo. The suppression of people's liberties facilitates easy commission of crimes \vhen 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 obj'e~t. They are genera1ly 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 hi111.'!elf. Though, tha.t deserves the highest condemnation, such crimes are not 'Voven out of the warp and woof of political motivation. Equal laws have to be G H 480 SUPREME COURT REPORTS (1979] 2 s.c.R. A applied to all in the sa1ne situation and the legislature is free to recognise the degree of harm or evil. Purity in public life is a desired goal at an times and in. all situations. But, this Court cannot sit as a super legislature and strike 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] B c (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 .t\.rt. t4. Classification necessarily entails the subjection of those who fall within it to a different set of rules and procedure, which may conceivably be more disadvantageous than the procedure which generally applies to ordinary trials. In almost nil of the decisions bearing, on the questions which arise for consideration the special procedure prescribed by the particular Jaws was distinctly more onerous than the procedure v.1hich 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 I that for the purposes of Art. 14, unequals cannot complain of unequal treat- -., ment. 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 D resting upon the genenul 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 \Vith 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-HJ E F G ll The State of Wes! Bengal v. Anwar Ali Sarkar, [1952) SCR 284; Kathi 1?.aning 1?.awat v. The State of Saurashtra, [1952] SCR 435; Lachmandas Kewa!ra1n Ahuja & Anr. v. The State of Bombay, [1952] SCR 710; Syed Qasim Razvi v. The State of Hyderabad & Ors .. [1953] OCR 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 Baioria v. The State of West Bengal, [19541 SCR 30; Asgarali Nazarali Singaporawalia v. The Stale of BombiIJ, [1957] SCR 678; referred to. ( e) The grouping 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 tanta.mount 1o clubbing together, in the same class, persons who do not possess common qualities or characteristics. It is unquestionably reasonable for the Jegis1ature to think 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 \Vere open to public criticism and were unprotected by the veil of emergency. The validity of a classification should be tested by broad con- .sidera.tions, particularly when the charge is one of under-inclusiveness. But RE : SPECIAL COURTS BILL 481 persons possessing widely differing characteristics, in the context of their ~ituaA tion in relation to the period of their activities, cannot by any reasonable criterion be herded in the same class. The ante-dating of the emergen~y. as it were, from June 25 to February 27, 1975 is wholly unscientific and proceeds from irrationaJ. considerations arising out of a supposed discovery in the matter of screening of offenders. The inclusion of offences ao..1d 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 artifiB cial to be susttJ.-ined. [545 C-H] / (f) The answer to the question whether, those who are allc..Jed to have committed offences prior to the ernergency can be put in the .same cla.ss as persoos 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 offic~s. The classification is inva.lid 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 ofier.ders under the present classification. [546 D] (h) As regards those who are rightly grouped together, since the classification is valid, it is U'ilnecessary for the purposes o'f Art. 14 to consider whether the procedure prescribed by the Bill is more onerous tha.n the ordinary proce~ dure. The onerousness of the special procedure would be irreleva,nt in considerations arising under Art. 14, for the reason that the clas<;ifi.catiOn 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 DJ 4. (a) There is no provision in the Bill for the transfer of cases from one Special Court t.o another. Absence of such a provision ma:1 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· occused 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 naitural justice and a denial of fair play. Jn yet another case expediency or convenience may require the transfer of a case, even if no bicparate ciass which deserves speedy prosecution and final punishment by high judicial a.gencie<; 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 i~ revelatory of this orientation. [558 CJ (c) There is a reasonable classification implicit in this Iegisla.tion, 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 6hall be dealt with by the crin1inal law with emergent speed so thl1t the common m2.n may krn:iw 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 pcc:ple in den1ocratic institutions through speed;; justice according to Jaw. It is in this sense that very important persons wielding large administrative powers shall, wiih quick despatch be tried and punished, if guilty. Prompt trial and ea1rly 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 \Vhere the offender sits at the top of the adn1inistrativc pyramid. [558 H; 559 A-C] (d) The Bill must fail morally if it exempts non-Emergency crimiin.als 21bout whom prior Commission Reports, bear witness. In this larger per5petcivc, Emergtncy is not a substantial differentia and the Uill nc·Jrlr recognises this by ante-dating the operation to February, 27, 1975 when there was no 'emergency'. [559 GJ I 3. The procedure of crin1inal courts is dilatory, there are a.ppeaJs upon appeals and revisions and supervisory jurisdiction, ba:ffiing and baulking speedy termination of prosecutions, not to speak of the co:itribution to delay by the Administration itself by neglect of the basic necessaries of the judicial process. Leaving V.V.1.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 criniinal the nature of the alleged crime vis-ai-v!s public CO!Jfidence and the imperative need for speedy litigative finality, are the telling factors. Every difference is not a differentia. 'Speedy trial' of offe~1ces of a public nature committed by persons who have held high public or political offices in the - f RE : SPECIAL COURTS BILL 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 tl1e words of the Preamble of the Bill, civil liberties were withdrawn to a great extent, important fundamental rights of the people wer'e suspended, strict censorship on the press was placed and j'udicial powers were curtailed to a large extent. [560 Fl Murthy Match Works etc. etc. v. The Asstt. Collector of Central Excise, etc., [1974] 3 SCR 121 at 130, referred to. A (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 1here 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 C __,,,,--.....,_ top echeolns. [561 F] Mohamn1ad Shujat Ali & Ors. v. Union of India & Ors., [1975] 1 SCR 449 at 477; State of Gujarat & Anr. v. Shri Ambica Mills Ltd., Ahmedabad, [1974] 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 d1~v,-n, criminal trials and appeals and revisions would have taken their own interminable delays. It is the forensic delay that ha.s 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 BJ (e) High powered public and political offenders are not h, peculiar feature of the Emergency but has been a running stream for long and bids fair to flow on, thereforC, a corrupt continuity cannot be cut up without better justification. [565 E-F] (f) The question, then is whether there is constitutional rationale for keepinJ,l: 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 D E and available a5 a jurisdiction for th~ public to compel government, if a F prinia facie case \Vere made out even against a minister in office, to launch a prosecution before a sitting High Court Judge, would be a \vholesome 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 c, pernicious period from the rest who share the same sinister properties. When a. salvatiooary alternative is available, the Court should opt for it when the attack is under .<\rt. 14, G provided the assumptions of fact desiderated by the alternatives are plausible, not Preposterous. The anatomy of the Emergency as X-rayed in the Preamble, is all dark ~·hadows. 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 unaccou'.1table power onc'e unsheathed, the inauguration and escalation of such a.buse becomes a compulsive continuum. Constitutional tyranny is anathema to decent democracy. In that H. state of nervous breakdown of the people, the right to go to court and prosecute an absolutist in authority for corruption or misuse of power is illusory. lf 486 SUPREME COURT REPORTS [1979] 2 s.c.R. A you spez.k up against crimes in high rositions, if you con1plain to court about abuse of power, you may be greeted \Vith prompt detention and 5ecret torture, with judicial relief jettisoned and Press publicity Joe-jawed~ If these macabre n1aybes 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 bet\veein the differentia and the objCct is not tco recondite to be inferred. [567 A-Bl B (h) The scary scenario of emergency excesses' had a nexus \Vith non-action c D against pers9ns in high ag2.inst authority and escalation of corruption and repression v.·hen judicial checks' on abuse had gone to sleep. (568 A-BJ (i) The fabric of the offences before and during the Emergency is the same. What validr..tes the special legislation is the abnormality of the then conditions, the intensive phase of corrupt operations and the inexpediency o!: 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 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 si'llistcr yet constant companions of Development in developing countries. [570 E] c·;1aglinlal Magan/al (P) Ltd. v. Municipal Corporation of Greater Bombay & Ors., [1975] 1 SCR 1, referred to. (b) Basic fairness of procedure is necessary. A valid classification with an intelligible· differentia ood inteliigent nexus to the object is needed. Within the class there should be no possibility of using a more burden~orne procedure for E one and a substantially different cue for another. Arbitrariness in this area also violates Art. 14. [571 D] G H ( 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 Jetter of their names, the colour oe their ski\1s or like non-sense ? No. The wisdom of Art. 14 will not tolerate such whim. Classify or perish, is the classi·..:: test of valid exempt:on 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. [571Ci] - UNTWALIA, J. (concurring \Vith the majority) 1. In ~one of the earlier references answered either by the Federal Court or by this Court r. precedent is to be found resembling or identical to what happened in this Special Reference. There is no harm in adopting the· n1ethod of giving some suggestions from the Court whkh may obliterati a possible constitutional attack upon the vires of a Bill. It may not be necessary or ev[io. 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 instz.nt 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.