Madras High Court Raises The Issue Of Constitutional Validity Of Special Courts For MPs/MLAs, Opines That Courts Can Only Be Offence Centric Not Offender Centric.2nd November 2020

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Madras High Court Raises The Issue Of Constitutional Validity Of Special Courts For MPs/MLAs, Opines That Courts Can Only Be Offence Centric Not Offender Centric.2nd November 2020
2nd November 2020 TaherAbedi 0 Comments
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(Judicial Quest News Network)

In the matter of Ashwini Kumar Upadhyay vs. Union of India concerning expeditious disposal of criminal cases pending against former/sitting legislators, Amicus Curiae & Senior Advocate Vijay Hansaria, Assisting Amicus Sneha Kalita AOR Supreme Court Submits his report in Supreme Court today after receiving the status Reports from all High Courts, the Amicus have prepared the report dated 2.11.2020.

Supreme Court vide order dated 06.10.2020 directed all the High Courts to provide information of the number of Special Courts MP/MLA in a prescribed format to provide more clarity on rationalizing exercise. Reports received from High Courts have been analysed and summarized in the later part of the present report.

This Hon’ble Court further directed that the Union of India will file a status report with respect to initiation and current stage of cases against the legislators pending before CBI, Enforcement Directorate and other central agencies, pendency/grant of sanction, expected time of completion etc. The learned Solicitor General was further directed to enquire from the Central Government regarding the possibility of providing funding for establishment of at least one video conferencing facility in every district for conducting these cases. No report has been submitted from the Union of India.

However the Criminal Rules Committee of the Madras High Court has expressed doubts over the validity of constitution Special Courts to try cases involving sitting and former MPs/MLAs on the Supreme Court ‘s directions as recorded in the 12th report of Supreme Court-appointed Amicus Curiae Vijay Hansaria While disagreeing with the stance Hansaria in his report said that “The Conclusion drawn by the Criminal Rules Committee of the (Madras) High Court that the designation of special Courts MP/MLA is unconstitutional as Special Courts can only be ‘Offence centric’ and can never be ‘offender centric ‘with humility is not correct.” (Amicus Curiae Vijay Hansaria)

The Madras High Court in its report has, inter alia, made the following observations: –

a. The Hon’ble Supreme Court had never directed the High Courts to constitute Special Courts for MP/MLAs exclusively, for the simple reason that the Hon’ble Supreme Court is aware that it is not legally permissible to create such Special Courts.

b. Special Courts can only be “Offence Centric” and not “Offender Centric”.

c. Courts can be constituted only by statute and cannot be constituted by judicial or executive fiats.

d. An MP/MLA, who commits an offence under POCSO Act (or other special Acts like PC Act, NDPS Act) can only be tried by a Special Court created under the POCSO Act (PC Act, NDPS Act) and there cannot be another Special Court exclusively for trial of an MP/MLA, who commits POCSO offence. (hereinafter referred as ‘the statutory Special Court’)

Senior Advocate Hansaria was appointed to assist the Supreme Court in the PIL Filed by Ashwini Kumar Upadhyay for the decrimination of politics.

f. The fallacy in the Government Order creating Special Court MP/MLA is that it erroneously traces the source of power to the Supreme Court 2

Order dated 1.11.2017 in Ashwini Kumar Upadhyay case and not to any statute.

g. The whole State of Tamil Nadu has been considered as a Session Division, whereas there are 32 District in Tamil Nadu, each having a Court of Session and Additional Sessions Court. It is not known how a Court of Session can function covering the entire State.

h. By sending the case from Kanyakumari District to the Special Court MP/MLA in Chennai, the witnesses from Kanyakumari were required to travel 700 kms for giving evidence and none thought about their safety.

i. The two principal political parties viz., DMK and ADMK, whenever they come to power, file defamation cases against opposition leaders in the Court of Session. These cases will invariably be stayed by the High Court. When there is change in Government, all the cases filed by the previous Government will be withdrawn

In the case of Anwar Ali Sarkar, a Bench of seven judges of this Hon’ble Court struck Section 5(1) of the West Bengal Special Courts Act, 1950 (Act 10 of 1950) which authorized setting up of Special Courts for trial of “such offences or class of cases, as the classes of offences or cases or classes of cases, as the State Government may by general or special order in writing, direct.” In this case, the State Government directed that the case of Anwar Ali and 49 co-accused who committed crime of robbery and murder with utmost brutality in a particular factory to be tried by the designated judicial officer. The procedure prescribed in the said Act was different in many respects than the procedure under Cr.P.C., which was less advantageous to them. All the seven Hon’ble judges delivered separate opinions. Hon’ble the Chief Justice Mr. S. Patanjali Sastri and Hon’ble Justice SR Das (partially) upheld the constitutional validity of the Act, while other five Hon’ble Judges struck down the same.

It may be noted that in the cases relating to Coal Block Allocation matters under Indian Penal Code, Prevention of Corruption Act, 1988, Prevention of Money Laundering Act, 2002 and other allied offences were transferred to a Special Judge to exclusively deal and try these offences by an order of this Hon’ble Court dated 18.07.2014 in the case of Manohar Lal Sharma vs. UOI, (2015) 13 SCC 35. In the same order this Hon’ble Court further directed that no court shall pass any order of stay or impede the process of trial except this Hon’ble Court. Validity of the said order of transfer and restrain on other courts to entertain a plea of stay was considered by three judge benches of this Hon’ble Court in Girish Kumar Soneji vs. CBI, (2017) 14 SCC 809. This Hon’ble Court rejected the contention that the Supreme Court cannot transfer a particular case to a particular officer by creating a Special Court, and held.

In view of the responses received the Amicus has also made certain suggestions with respect to confirmation of judicial officers for Special confirmation of judicial officers for Special MPs/MLAs Courts, appointment of nodal prosecutors, allocation of funds for video conferencing and witness examination facilities etc.

As per the reports submitted by the High Courts, video conferencing facility is available in some courts and that too for limited purposes. The Central Government may be directed to make necessary funds available for the purpose of making video conference facilities including witness examination in all the courts, at first instance. Funds so allotted/ granted by the Central Government may be subject to final adjustment with the State Government as per the prevailing sharing pattern

This Hon’ble Court may be pleased to issue practice directions for expeditious trial of criminal cases pending against MPs/ MLAs in terms of submissions made by the Amicus dated 09.09.2020, 15.09.2020 and 05.10.2020.

[Read the report]