Supreme Court directs High Courts to register suo moto case for speedy disposal of criminal cases against legislators

On 9 November 2023, a Division Bench comprising Chief Justice D.Y. Chandrachud, and Justices P.S. Narasimha and Manoj Misra issued detailed guidelines to High Courts to expedite criminal cases against former and sitting Members of Parliament (MPs) and Members of Legislative Assemblies (MLAs). The judgement came in a writ petition filed by advocate and former BJP spokesperson Ashwini Kumar Upadhyay. 

Since the petition was admitted in 2016, the Supreme Court has issued a number of directions about the constitution of special courts to try lawmakers accused of crimes. In the present judgement, the Court directed High Courts to take the lead on the monitoring function because the “dissimilarity” of issues across states had made it difficult for the Supreme Court to frame uniform guidelines. 

Here’s a detailed look at how the matter progressed in the Supreme Court. 

The petition 

Upadhyay filed the PIL more than seven years ago, back in August 2016. The petition pleaded for two things. First, it sought expedited disposal of pending criminal cases against sitting and former MPs and MLAs. Second, it challenged the constitutional validity of Section 8 of the Representation of People’s Act, 1951. Section 8(3) stipulates the disqualification of lawmakers upon conviction. The petition challenges this provision on the ground that it sets different standards for different offences. In 2019, another PIL filed by Upadhyay challenged Section 8 stating that the two-year imprisonment requirement is arbitrary and promotes a “regime of tolerance for criminality” in favour of elected legislators.

The present judgement only covers the first aspect. The constitutional validity question remains pending before the Court. 

In September 2016, the Court issued a notice to the Union government, state governments and High Courts. Later, Senior Advocate Vijay Hansaria was appointed as an amicus to assist the Court. 

In November 2017, the Union government informed the Court that it was not “adversarial” to the proceedings. The government was also not opposed to the idea of establishing special courts to deal with pending criminals against legislators. In other words, they extended support to the Court’s adjudication of the issue.

Need for a plan to rationalise pending cases

Between 2017 and 2020, the Court, the amicus and Union government and the High Courts, considered a few approaches to tackle the issue of pending criminal cases against lawmakers. 

In December 2017, the Court and the Union contemplated setting up 12 special courts. However, since it involved budgetary and policy changes, the amicus recommended designating one Sessions court and one Magistrate Court in each district to deal with the issue. In December 2018, the High Courts were directed to examine this option and constitute as many courts as needed. Further, the Supreme Court also directed that cases attracting a penalty of death or life imprisonment must be taken up first per the recommendations of the amicus. 

In March 2020, the Supreme Court directed the High Courts to compile and provide information of the MP/MLA involved, such as whether they are sitting or former legislators, the offence alleged, the district where the complaint was filed in etc. 

On the basis of the above information, the amicus framed comprehensive guidelines for the identification of designated courts, the number of such courts, the procedure and practice that they need to adopt and follow, and witness protection, amongst other things. This included guidelines on the order of disposing of cases, when a stay can be permissible and more. The Court directed the Chief Justices of High Courts to submit an “action plan” for “rationalizing” the pending criminal cases and the number of special courts necessary to deal with them. 

In September 2020, the Court also asked the High Courts to provide information about available infrastructural facilities, witness protection extensions, transfer of judicial officers etc. via affidavits. 

 More than 2000 cases pending for over 5 years 

Data compiled by the amicus and presented in Court in November 2022 showed that there were 5175 criminal cases pending against lawmakers across India. Further, more than 40 percent (2116 cases) had been pending for well over five years. 

The Court acknowledged this significant pendency in its judgements on 9 November. “These cases have a direct bearing on our political democracy,” it said, “Hence, there is a compelling need to make every effort to ensure that these cases are taken upon priority and decided expeditiously.”

The Court however recognised that there were “systemic, perhaps institutional” problems hindering the speedy disposal of cases in each state. The factors that influence the disposal in each state, the Court said, are variable. This, the Court held, was proven by the “asymmetric disposition” between states and districts within a state as well. The Court also noted that variations existed in the availability of judges, caseload per judge, speed of deciding cases, physical and technological infrastructure etc. 

Another important aspect the Supreme Court remarked on was the distinct and deep-rooted practice and procedure culture in every court. This was influenced by history, culture, region and language. Therefore, the Court said, the members of the Bar must play a crucial role in bridging these differences and making an accurate assessment of cases. 

Suo moto case to be heard by Special Bench in High Courts

“Confidence and trust of the constituency in their political representative, be it an MP or an MLA, is necessary for an interactive, efficient and effective functioning of a parliamentary democracy,” the judgement said. “However, such confidence is difficult to expect when figures, as indicated in the above referred table, loom large in our polity.” 

In light of this, the Supreme Court directed the High Courts to monitor the cases. For this purpose, the Chief Justices of High Courts were asked to register a suo-motu case with the title “In re: designated courts for MPs/MLAs.” 

The suo moto case may be heard by a Special Bench comprising the Chief Justice of the High Court or a bench appointed by them. This Special Bench can pass orders or give additional directions as necessary for the early disposal of the cases. 

The suo moto case, the judgement held, is to be listed at regular intervals and the High Courts could call on the Advocate General or the Public Prosecutor to assist them. 

Further, the top court also directed that the order in which cases must be disposed of should be as follows:

1. Criminal cases where the punishment is death or life imprisonment.
2. Criminal cases where the punishment is imprisonment of five or more years and
3. Other cases

The High Courts were also directed to create an independent tab on their websites to provide district-wise information about pending cases.