Permanent Imprint Leading Cases

President of India can refer even questions of fact and the Supreme Court can decline to answer such Reference

In Re: The Special Courts Bill, 1978
AIR 1979 SC 478: (1979) 1 SCC 380: (1979) 2 SCR 476
JUDGES: Y.V. Chandrachud, C.J., P.N. Bhagwati, V.R. Krishna Iyer, R.S. Sarkaria, N.L. Untwalia, S. Murtaza Fazl and P.N. Shinghal, JJ.
Date of Decision: 1-12-1978

On August 1, 1978 the President of India made a reference to Supreme Court under
article 143(1) of the Constitution for consideration of the question whether “The Special Court’s Bill, 1978” or any of its provisions, if enacted, would be constitutionally invalid.

On receipt of the reference on August 1, a notice was issued to the then Attorney-General on the 2nd August to appear before the court on the 4th August for taking directions in the matter. On 4th August upon hearing the Attorney-General the court directed that: (1) Notice of the reference be given to the Union of India and the Advocate-General of the State requiring them to submit their written briefs before September 4, 1978. (2) Notices be published in five newspapers at Bombay, Delhi, Madras and Calcutta 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 subject to reasonable convenience of all concerned.

The notices were issued by the Registry of the Supreme Court on 4 August, 1978 to the Union of India and Advocate-Generals of 22 States. The newspaper notices were also published. By August 21 a large number of applications were received by the court asking that the applicants should either be impleaded to the reference as parties or in the alternative that they should be allowed to intervene in the proceedings. On August 21, the court passed an Order after hearing all the interested parties that it did not consider it necessary to implead anyone as a formal party to the reference. The Court however, granted permission to 18 persons and 2 State Governments to intervene in the proceedings.

The written briefs were filed by Union of India, the Advocate-Generals, the two State Governments and 18 interventionists.

Whether the Supreme Court should decline to answer on the ground of reference being of hypothetical or speculative character.

It was held that the assumption of every reference under article 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. Further the possibility of a change, even of a fundamental change, could not make the exercise of the presidential jurisdiction under article 143 speculative or hypothetical. Finally it was held that the Supreme Court could decline to answer the reference on the ground that it encroaches upon functions and privileges of Parliament.

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