LLM Group 1 Constitutional and Administrative Law National Security Public Order and Rule of Law 2016 Question Paper with Solutions

For full marks, cover: two notes of roughly twelve and a half marks each. For (a) the examiner wants Articles 323A and 323B, the movement from Sampath Kumar to L. Chandra Kumar, and the independence problem; special criminal courts are a different animal and saying so earns marks. For (b) the examiner wants the deliberate rejection of due process by the framers, its return through Maneka Gandhi, and the specific devices by which special legislation displaces it.

(a) Special courts and Tribunals

Why they exist. Three justifications are offered and each is real. Expertise: taxation, service, company, securities and environmental disputes turn on technical material that a generalist judge acquires slowly and imperfectly. Speed: the regular courts are congested, and a dedicated forum with simplified procedure disposes faster. Access: tribunals are cheaper, are not bound by the Code of Civil Procedure or the Evidence Act, and may be approached without the formality of a suit.

S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124. The Administrative Tribunals Act, 1985 excluded the High Courts' jurisdiction under Articles 226 and 227 in service matters. The Court upheld the Act, reasoning that judicial review is undoubtedly part of the basic structure but that it is not destroyed if the excluded jurisdiction is vested in an effective alternative institutional mechanism of comparable competence and independence. It required amendments to the composition and appointment provisions, in particular a role for the Chief Justice of India in selection, to make the Tribunal such a substitute.

L. Chandra Kumar v. Union of India, (1997) 3 SCC 261. A Bench of seven reconsidered Sampath Kumar and departed from it. It held that the power of judicial review vested in the High Courts under Articles 226 and 227 and in the Supreme Court under Article 32 is part of the basic structure and cannot be ousted, even by constitutional amendment; that clauses 323A(2)(d) and 323B(3)(d), so far as they permitted the exclusion of the High Courts' jurisdiction, are unconstitutional; that tribunals nevertheless act as courts of first instance in their fields, so a litigant may not bypass the tribunal and go straight to the High Court; and that tribunal decisions are subject to scrutiny by a Division Bench of the High Court within whose territorial jurisdiction the tribunal falls.

Rojer Mathew v. South Indian Bank Ltd., (2020) 6 SCC 1, struck down the Tribunal Rules of 2017 for excessive executive control over appointment and for short tenures. The Tribunals Reforms Act, 2021 was passed after the Court had struck down an ordinance containing the same provisions, and in Madras Bar Association v. Union of India, decided 19 November 2025, the Court again addressed tenure, minimum age and the composition of search cum selection committees. The defect is structural rather than accidental: the Union is the largest litigant before most of these tribunals and simultaneously controls the appointment, tenure, salary and service conditions of their members.

Special criminal courts are different, and saying so earns marks. A special court is not a tribunal. It is a criminal court constituted by statute to try a defined class of offence, normally presided over by a sessions judge and applying the ordinary criminal procedure subject to statutory modification. In this subject the examples are the designated courts under TADA, and the special courts under the National Investigation Agency Act, 2008, the Prevention of Money Laundering Act, 2002, POCSO, 2012 and the Prevention of Corruption Act, 1988.

Conclusion on (a). Special courts and tribunals are the constitutional answer to expertise, congestion and access, authorised by Articles 323A and 323B. The constitutional limit on them is now settled: Sampath Kumar permitted the exclusion of the High Courts provided an effective alternative was substituted, and L. Chandra Kumar, by seven judges, held that the writ jurisdiction of the High Courts and of the Supreme Court is part of the basic structure and cannot be excluded at all, so tribunals are courts of first instance whose decisions go to a Division Bench. What remains unresolved is independence, and the line from R. Gandhi through Rojer Mathew to the November 2025 decision shows the Court repeatedly striking down provisions that subordinate tribunals to the executive that litigates before them. Special criminal courts stand on a different footing and are tested under Article 14 as a classification of offences.

Its return through the back door. Maneka Gandhi v. Union of India, (1978) 1 SCC 248, held that Articles 14, 19 and 21 are not mutually exclusive but form a golden triangle, and that a procedure depriving a person of personal liberty must be right, just and fair, and not arbitrary, fanciful or oppressive; a procedure that is arbitrary is no procedure at all, because Article 14 strikes at arbitrariness and now informs Article 21. Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, stated the result: though our Constitution has no due process clause, after Maneka Gandhi the consequence is the same. India therefore has substantive fairness review of procedure without the words.

What special legislation is, and how it displaces due process. Special legislation means a statute prescribing a distinct procedure for a defined class of offence, whether terrorism, economic crime, narcotics or offences against children. Each device it uses removes a component of fair procedure.

The judicial response, and why it is unsatisfying. Kartar Singh v. State of Punjab, (1994) 3 SCC 569, upheld TADA, holding that Parliament may prescribe a different procedure for a different class of offence provided the classification is rational, while laying down guidelines to make the confession provision under section 15 workable. People's Union for Civil Liberties v. Union of India, (2004) 9 SCC 580, upheld POTA, holding that the mere possibility of abuse is no ground for striking down a statute and that the remedy for abuse is action against the abuser.

Both statutes were nonetheless withdrawn: TADA lapsed in 1995 after roughly seventy six thousand arrests produced a conviction rate of about one per cent, with the National Human Rights Commission opposing its continuance; POTA was repealed in 2004 after review committees found widespread misuse, and Parliament pointedly declined to carry its confession provision into the UAPA. That record is the answer to the PUCL reasoning: where a power is exercised tens of thousands of times and convicts one in a hundred, misuse is the pattern of operation and not a possibility.

Conclusion on (b). Due process requires that both the procedure and the substance of a deprivation of liberty be fair. India deliberately wrote "procedure established by law" to exclude it and Gopalan enforced that exclusion, but Maneka Gandhi restored it in substance by requiring procedure to be right, just and fair. Special legislation is where the guarantee is thinnest, because admissible police confessions, presumptions of guilt, extended custody, restricted bail, protected witnesses and executive designation each subtract one element of a fair trial.

The courts have consistently declined to strike such statutes down, preferring to read them down and issue guidelines, and the reasoning in PUCL that misuse is no ground of invalidity sits badly with the TADA figures. The significant development is that through Najeeb and the cases following it the Court has held that no statutory bar on bail can survive a violation of the right to a speedy trial, which is due process reasserting itself at the one point where a special statute cannot exclude Article 21.