Special Courts can only be Offence Centric, not Offender Centric: Madras HC disputes constitutionality of Special MP/MLA Courts in Supreme Court

The Criminal Rules Committee of the Madras High Court has expressed doubts over the validity of constituting Special Courts to try cases involving sitting and former MPs/MLAs on the Supreme Court's direction, as recorded in the 12th report of Supreme Court-appointed Amicus Curiae Vijay Hansaria..Hansaria has, however, expressed his disagreement with this stance.."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 all humility, is not correct."Amicus Curiae Vijay Hansaria.Senior Advocate Hansaria was appointed to assist the Supreme Court in the PIL filed by Ashwini Kumar Upadhyay for the decriminalisation of politics. .Recently, the Court had passed directions for the expeditious disposal of cases against sitting and former legislators, while asking the High Courts to come up with their own Action Plans, considering the situation in respective States. .In its response, Amicus Hansaria has informed that the three-member Criminal Rules Committee of the Madras High Court, has opined:.The constitution of the Special Courts MP/MLA cannot be sustained on the judicial side in the light of the authoritative pronouncements of the Supreme Court i.e. State of WB vs. Anwar Ali Sarkar, AR Antulay vs. RS Nayak and APD Jain Pathshala vs. Shivaji Bhagwat More.The Supreme Court had never directed the High Courts to constitute Special Courts for MP/MLAs exclusively, for the simple reason that the Supreme Court is aware that it is not legally permissible to create such Special Courts. Special Courts can only be “Offence Centric” and not “Offender Centric."Courts can be constituted only by statute and cannot be constituted by judicial or executive fiats. There are Special Courts already constituted for Special Act offences such as the POCSO Act, Prevention of Corruption Act, NDPS Act etc. MPs/MLAs committing offences under these Act should only be tried by the Special Courts constituted under these Acts. There cannot be another Special Court exclusively for the trial of an MP/MLA, who commits a POCSO offence. The 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 fallacy in the Government Order creating Special Court MP/MLA is that it erroneously traces the source of power to the Supreme Court order of November 1, 2017 in the Ashwini Kumar Upadhyay case and not to any statute.A Special Court for MPs/MLAs created by virtue of a Government Order cannot oust the jurisdiction of the Special Court constituted under the enactment..The High Court goes on to make certain submissions specifically explaining the state of affairs in Tamil Nadu as well. In this regard, the following aspects have been raised:.The whole of Tamil Nadu has been considered as a Session Division. whereas there are 32 District in Tamil Nadu. Each District has a Court of Session and Additional Sessions Court. It is not known how a Court of Session can function covering the entire State. This may create further difficulties. For example, by sending a case from Kanyakumari District to the Special Court MP/MLA in Chennai, the witnesses from Kanyakumari would be required to travel 700 kms for giving evidence. Their safety would have to be considered.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. The e existing Court structure in the State of Tamil Nadu, which is robust, is more than enough to deal with the cases involving MPs and MLAs. .In view of this stance, a request was also made to exempt Tamil Nadu in the matter of "establishing Special Courts for trial of cases involving MPs and MLAs and to permit restoration of status quo ante.".In response, Amicus Hansaria has submitted in his 12th report before the Supreme Court, that:.The ratio of the Anwar Ali case and the subsequent judgments following the same did not lay down that ‘offender centric’ classification is per se unconstitutional.Legislators form a class in themselves. Therefore, the directions passed by the Supreme Court in this for the designation of Special Courts to try criminal cases pending against legislators is valid. There is a reasonable nexus to in terms of fast-tracking the disposal of these cases and the decriminalisation of Indian polity.It is incorrect that Special Courts can never be constituted by judicial order. 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 the 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.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, the 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 the Supreme Court issued in exercise of the power under Article 142 of the Constitution. 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..In the course of the report, the Amicus has also noted that in some States, cases triable by statutory Special Courts have been transferred to Special Courts for MPs/ MLAs, while in other States, such cases are being tried by the respective statutory Special Courts. .In some States, some such cases are tried by Special Court fror MPs/ MLAs and some by Statutory Special Courts..Apart from this issue, the 12th report by the Amicus gives an overview of reports filed by other High Courts as regards the status of cases filed against legislators. .Notably, the Uttarakhand High Court has submitted that there is no necessity to constitute a Special Court in the State and there were only 23 cases against legislators, out of which 6 were disposed of and 17 are pending. .In view of the responses recieved, the Amicus has also made certain suggestions with respect to confirmation of judicial officers for Special MP/MLA Courts, appointment of nodal prosecutors, allocation of funds for video conferencing and witness examination facilities etc. .Read the report: