Madras High Court Panel Questions Validity Of Supreme Court Order Setting Up Special Courts For MPs/MLAs

In a report dated October 13, 2020, the Committee has stated that Special Courts can only be "Offence Centric" and not "Offender Centric".

"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," the Committee submitted.

In other words, the Committee contends that Courts can be constituted only by statute and cannot be constituted by judicial or executive fiats.

The remarks on the HC panel were mentioned in a report submitted to Senior Advocate Vijay Hansaria, Amicus Curiae in the matter concerning expeditious disposal of criminal cases pending against former/sitting legislators.

In this case, a three-Judge Bench of the Supreme Court, comprising of Justices N V Ramana, Surya Kant and Hrishikesh Roy, has asked the High Courts to formulate an action plan to rationalize the disposal of criminal cases pending against legislators.

The Madras High Court Committee has however stated that constitution of offender centric Courts is not legally permissible and cannot be a way to expedite disposal of cases.

The Committee noted that the Supreme Court fell in error by ordering that a Central Scheme may be prepared for setting up of Courts, exclusively to deal with criminal cases involving political persons, vide order dated November 1, 2017, in Ashwini Kumar Upadhyay case.

It is pointed out that the Government Orders creating Special MP/MLA Courts trace their powers to this order and not to any statute. The Report states,

"The Hon'ble Supreme Court was very guarded in its orders, but unfortunately, fell in error by creating Special Courts for trial of criminal cases involving MPs and MLAs by implicitly adopting the format of the Government Order that was passed by the Telangana State."

The Committee had also relied on several Judgments of the Supreme Court, including State of WB v. Anwar Ali Sarkar, 1952 SCR 284, to contend that procedure for trial, as prescribed under the Code of Criminal Procedure, has to be strictly followed.

However, these arguments have been rebutted by the amicus in his report. The same be read here:

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

Inter alia, the Committee has submitted that that existing Court structure in the State of Tamil Nadu is robust and is more than enough to deal with the cases involving MPs and MLAs.

The Committee has therefore sought exemption from establishing any Special Courts for trial of cases involving MPs and MLAs and has sought status quo ante.

It has also pointed out practical difficulties in establishing such special Courts. It stated,

"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"

Further,

"The Government Order dated 26.4.2019 states that if the offences stated in the Special Act were to be committed by an MP or MLA in Chennai, he will have to be tried by the Special Court MP/MLA No. II. This Government Order ignores the fact 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".