No Illegality In Establishing 'Offender Centric' Courts For Trial Of MPs/MLAs: Amicus Curiae Tells Supreme Court [Read Report]

"In the present case, this Hon'ble Court has directed expeditious trial of criminal cases against MPs/ MLAs by designating Special Courts in view of the fact that offenders are or have been legislators, who constitute a class in themselves, and speedy trial of such cases is in public interest. The legislators are lawmakers who lay down policies for socio-economic development of the country and are responsible for upholding constitutional morality. It is on record that a large number of cases, including heinous offences, are pending in the courts not only for years but for decades. In such circumstances a special mechanism for speedy trial of these cases cannot be flawed," a Report filed by the Senior Advocate states.

The submission comes in response to the exemption sought by the Madras High Court from establishing Special Courts for trial of cases involving MPs and MLAs.

The High Court had claimed that it is not legally permissible to create Special Courts for trial of MPs/ MLAs as Special Courts can only be "Offence Centric" and not "Offender Centric".

It was further submitted that there are already Special Courts under the SC/ST Act, POCSO Act, and PC Act and other Central and State enactments, for exclusive trial of the offence under those Acts, and there was no scope to establish another set of Courts to try a particular category of offenders.

Disputing this contention, the amicus has submitted,

"Statutory Special Courts constituted under PC Act, SC/ST Act, PML Act, POCSO Act or any other statute made by Parliament or State legislature shall 'ordinarily' have jurisdiction to try cases for offences committed under these statutes. However, trial of cases under the special statutes by the Special Courts MP/ MLAs are valid and do not suffer from any constitutional infirmity as these courts have been constituted under the direction of this Hon'ble Court issued in exercise of the power under Article 142 of the Constitution."

Amicus Curiae Submits Action Plans Filed By Various High Courts For Speedy Disposal Of Criminal Cases Against MPs/MLAs

Reliance is placed on the case of Public Interest Foundation v. UOI, (2015) 11 SCC 433, where by the Top Court had directed as under:

"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)."

The amicus further pointed out,

"The trial of these cases does not otherwise suffer from breach of any constitutional provision nor any accused person has alleged violation of any fundamental right."

No special procedure less advantageous to the accused persons

Significantly, the Madras High Court had relied upon the observations made a five-Judge Bench in the 2:3 majority judgment rendered in the case of Anwar Ali Sarkar.

In that case, the High Court struck down Section 5(1) of the West Bengal Special Courts Act, 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."

While striking down the provision, Justice Saiyid Fazl Ali in his majority verdict had observed,

"The impugned Act has completely ignored the principle of classification followed in the Code and it proceeds to lay down a new procedure without making any attempt to particularize or classify the offences or cases to which it is to apply.

An Act which gives uncontrolled authority to discriminate cannot but be hit by Article 14 and it will be no answer simply to say that the legislature having more or less the unlimited power to delegate has merely exercised that power."

The amicus has submitted that in Anwar Ali case, the Top Court had struck down the Act not on the ground that there cannot be 'offender centric' classification, but on the ground that the Act prescribed a procedure less favourable to accused persons vis a vis prescribed under CrPC.

In the present case, the amicus has submitted,

"No special procedure less advantageous to the accused persons has been prescribed for trial of cases involving MPs/ MLAs; these cases are tried as per general procedure prescribed under Cr.P.C. All that has been done is to designate a particular officer to try cases in an expeditious manner, who otherwise has jurisdiction to conduct the trial. It is thus submitted that directions passed by this Hon'ble 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 decriminalisation of Indian polity in fast tracking disposal of these cases."

Reliance is placed on the Law Commission's 239th Report (2012) whereby it is clearly stated that the cases of influential persons in public life need to come up for special focus for the reason that the experience shows occurrence of long delays both in investigation and trial.

"This is because of the influence they can wield with the Police and witnesses. Delays are also often caused by their prolonged abstinence from the court proceedings and the Police not taking effective steps to produce them in Court. Secondly, the persons holding public offices have a role to play in democratic governance and the people have legitimate expectation that the elected representatives are clean and free from criminal misconduct. Thus, public are equally interested in early conclusion of trial," the Report reads.

Precedence in Coal Block Allocation Case

The amicus has also drawn the Court's attention towards the cases relating to Coal Block Allocation.

In Girish Kumar Suneja v. CBI, (2017) 14 SCC 809, the validity of the Supreme Court's decision to transfer those cases pertaining to offences under IPC, Prevention of Corruption Act, PMLA and other allied offences, to a Special Judge, was challenged.

Rejecting the contention that the it cannot transfer a particular case to a particular officer by creating a Special Court, the Supreme Court had held,

"The treatment of these cases is certainly not arbitrary – on the contrary, the classification is in public interest and for the public good with a view to bring persons who have allegedly committed corrupt activities, within the rule of law. It is hence not possible to accept the submission that by treating the entire batch of coal block allocation cases in a particular manner different from the usual cases that flood the Courts, there is a violation of Article 14 of the Constitution."

It has been submitted that the ratio of the aforesaid case fully applies to the present case and the observation of the Madras the High Court that the Special Courts cannot be constituted by a judicial or executive fiat is not correct.

Inter alia, the amicus has submitted a Report on measures taken by all the High Courts for rationalization of Courts, vide order dated October 6, 2020.

The steps taken/ proposed by the High Court may be read in the report attached below. The matter will be taken up the Supreme Court on Wednesday, November 4.

The amicus has also informed the Court that the Union of India has not submitted any report pursuant to the direction 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.

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