Recently, a three-judge Bench of the Supreme Court reaffirmed that the establishment of special courts to expedite the trials of sitting and former lawmakers accused of various crimes is in line with serving public interest. This move envisions to boost public faith in the judiciary system. The bench was reviewing a report presented by a committee of the Madras High Court, expressing concerns about the creation of such special courts.
The Genesis of Special Courts
The Supreme Court in 2017 ruled that special courts should be instituted across the country to hasten the protracted trials of lawmakers. Consequently, 12 special courts were constituted across 11 states. Each state’s special court has jurisdiction over the whole state, while two located in Delhi oversee cases from within Delhi or “partly Delhi”.
The Current State of Cases Against Legislators
In September 2020, a SC-appointed amicus curiae (friend of the court) reported that despite this effort to establish special courts, approximately 4,442 criminal cases involving 2,556 sitting lawmakers remain unresolved. Several factors lead to delayed trials, including stays granted by various high courts, insufficient special courts, a lack of prosecutors, latches in prosecution, and delayed investigations.
Supreme Court’s Response to Delayed Trials
Recognizing these issues, the Supreme Court issued an order for the monitoring of criminal trials involving elected representatives by a special bench of each high court. In instances where trials have been stayed, the special bench will decide on the continuation or cancellation of the stay, ideally within two months.
Reservations of the Committee of the Madras High Court
This committee has questioned the constitutional validity of setting up Special Courts for lawmakers, asserting that such courts should only be constituted by a statute not by the executive or judiciary. The committee also emphasised that special courts should focus on the offence, not the offender. The ability of one special court to cover cases across all districts of a state was also queried, highlighting potential issues for traveling witnesses.
Criminalization of Politics and Legal Provisions
The criminalization of politics in India stems from various factors including police control, corruption, weak laws, lack of ethical value, vote bank politics and loopholes in the election commission’s function. According to the Association of Democratic Reforms (ADR), almost half of those elected in the 2019 Lok Sabha elections have criminal charges against them; an increase of 26% compared to 2014.
Supreme Court and Election Commission’s Stance
In February 2020, the Supreme Court ordered political parties to disclose the complete criminal history of their candidates. The EC has supported a lifetime ban on politicians convicted in criminal cases but the proposal to disqualify candidates accused of serious crimes has been opposed by several parties based on concerns of misuse and the principle of innocent until proven guilty.
Way Forward
For clean governance free of the “criminal” virus, public pressure on prosecution may aid. Holding a political leader accountable for selecting tainted candidates could lead to positive change. Further, strengthening the Election Commission is essential for a cleaner electoral process. Despite the EC having the power to register a political party, it cannot deregister it. Regulating the affairs of a political party is crucial for the integrity of the election process.
