The Madras high court has termed as unconstitutional the Supreme Court order which directed the setting up of special courts to expedite criminal trials against elected representatives.
The statement has come in response to an October 6 order of the three-judge Supreme Court bench, headed by Justice NV Ramana, that asked all High Courts to submit the number of existing special courts for trial in criminal cases against sitting and former elected MPs and MLAs.
In its response to the order, the three-judge Criminal Rules Committee of the Madras HC filed its report to the amicus curiae and senior advocate Vijay Hansaria, who is assisting the Court in the matter, on October 13.
The HC held that special courts can only be “offence specific” and not “offender specific”, that is special courts can be constituted only under special statutes such as Prevention of Corruption (PC) Act, Prevention of Money Laundering Act (PMLA), Protection of Children from Sexual Offences (POCSO) Act, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and such other Central and state enactments.
“Courts can be constituted only by statute and cannot be constituted by judicial or executive fiats…Special Court (MP/ MLA) created by virtue of a Government Order cannot oust the jurisdiction of the Special Court constituted under the enactment,” the report said.
Currently, there are 4,859 cases pending against MPs/MLAs. In 2,556 cases of these, sitting legislators are involved.
In response to the report, Hansaria justified the November 1, 2017 order of the Supreme Court to set up special courts, and said, “Directions passed by this Court in the present case for designation of Special Court for trial of criminal cases pending against legislators, who form a class in themselves, are valid as there is a reasonable nexus of decriminalization of Indian polity in fast tracking disposal of these cases.”
He argued that a large number of cases, including heinous offences, had been pending in the courts for decades. “In such circumstances a special mechanism for speedy trial of these cases (issued in exercise of the power under Article 142 of the Constitution) cannot be flawed,” he said.
It was pursuant to the direction of the apex court, the Central government sanctioned 12 Special Courts for trial of cases against MPs/ MLAs on December 14, 2017. Subsequently, Special Courts were constituted in all the states/Union territories for such cases.
The idea of constituting such special courts had its genesis in an order passed by Supreme Court in PIL filed by Public Interest Foundation vs. UOI in 2015 where the apex court observed, “We, accordingly, direct that in relation to sitting MPs and MLAs who have charges framed against them for the offences which are specified in Sections 8(1), 8(2) and 8(3) of the RP Act, the trial shall be concluded as speedily and expeditiously as may be possible and in no case later than one year from the date of the framing of charge(s).”