New Delhi, November 2: In the wake of the exemption sought by the Madras High Court from establishing special courts for trial of cases involving MPs and MLAs, the amicus curiae in the issue pertaining to need for expeditious trial of legislators has told the Supreme Court that there is no illegality involved in setting up such courts.

Amicus Curiae Vijay Hansaria, in his report to the apex court, drew the attention of the Supreme Court to the Criminal Rules Committee of the Madras High Court, comprising three judges of the high court, having raised the issue of constitutional validity of the special courts for MPs and MLAs designated to try cases against sitting and former legislators in fast track mode.

“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,” stated a report, submitted by Advocate on Record Sneha Kalit who is assisting the amicus curiae, before the Supreme Court, The Week reported.

The amicus curiae stated that it was on record that a large number of cases, including heinous offences, are pending in the courts not only for years but for decades, and in such circumstances, a special mechanism for speedy trial of these cases cannot be flawed.

The Madras High Court had argued that it is not legally permissible to set up special courts to try cases pending against MPs and MLAs. It has stated that special courts can only be “offence centric” and not “offender centric”.

Among the points made by the high court, in its report dated October 13, 2020, is that the Supreme Court had never directed the high courts to constitute special courts for MPs and MLAs exclusively, for the simple reason that the apex court is aware that it is not legally permissible to create such special courts. It said courts can be constituted only by statute and cannot be constituted by judicial or executive fiats.

“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 high court further said.

It also raised the practical issue of sending, for example, a case from Kanyakumari district to the special court for MPs and MLAs in Chennai, since the witnesses from Kanyakumari would be required to travel 700km for giving evidence and raised concerns about their safety.

The amicus curiae contended that no special procedure less advantageous to the accused persons has been prescribed for trial of cases involving MPs and MLAs. 

“These cases are tried as per general procedure prescribed under CrPC. 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.”

He said the twin test of fair trial to meet the constitutional requirement, namely, independent and qualified judge, and a fair procedure applicable to ordinary courts are complied with in the present case. Thus, no objection as to the constitutional validity of the special courts can be raised, he concluded.

The amicus curiae also stated that the conclusion drawn by the Criminal Rules Committee of the High Court that the designation of the special courts is unconstitutional as such courts can only be ‘offence centric’ and can never be ‘offender centric’ is not correct. It is also incorrect that special courts can never be constituted by judicial order, he said.

“The MPs/ MLAs constitute a class in themselves and thus special courts can be constituted for expeditious trial of criminal cases against MPs/ MLAs, which is in public interest. Thus, special courts MP/MLA designated by issue of a notification by state governments after consultation with the High Courts is constitutionally valid,” the amicus curiae stated.

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