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Speeding up the process

By Dr Abhishek Atrey

Criminalisation in politics is not a new phenomenon. So ingrained has it become in society that the Supreme Court recently asked High Courts to set up special benches to monitor trials in over 5,000 cases against MPs and MLAs for their speedy disposal.

Criminalisation was in the minds of lawmakers even when the Representation of the People Act, 1951, was passed by Parliament. Chapter III from Sections 7 to 11 of the Act deals with disqualification of members of Parliament and legislative assemblies and councils on various grounds. Section 8 provides a list of offences under various penal provisions. Convictions under them will disqualify such a member for six years from the end of such conviction. 

The list of offences under Section 8 and 8A was amended from time to time and presently includes the following: 

  • Cases relating to Section 153A which are offences of promoting enmity among religions.
  • Offenses relating to bribery, rape and cruelty under Section 498A.
  • Offences relating to untouchability under Protection of Civil Rights Act.
  • Offences relating to Section 11 of the Customs Act. 
  • Offences relating to the Unlawful Activities Prevention Act.
  • Offences relating to Foreign Exchange Regulation Act, NDPS Act, Terrorist and Disruptive Activities Prevention Act, Religious Institutions Prevention of Misuse Act, Prevention of Corruption Act and so on.

Initially, there was protection under Section 8(4) of the Representation of the People Act for such MPs and MLAs where the period of disqualification started three months after the date of disposal of appeal or revision against such conviction. 

However, in 2013, the Supreme Court struck this Section down. As a result, immediately after conviction, a person shall cease to be a member of Parliament or a legislative assembly. This is what happened to Rahul Gandhi last year.

Politicians accused of criminality who earlier had a period of appeal or revision now only have the period of trial to save their respective seats. Therefore, they do all they can to see that the trial is not concluded early. As such politicians are generally influential and rich, they also try to influence or threaten witnesses so that the trials don’t result in their convictions. But the Supreme Court has time and again come to the rescue of the people and tried to overcome loopholes in the judicial system.

In 2013, in the matter of Public Interest Foundation, the Supreme Court requested the Law Commission of India to give a report on two issues—whether disqualification should be triggered upon conviction or upon framing of charges and secondly, whether filing a false affidavit under Section 125A of the Representation of the People Act should be a ground for disqualification. In response, the Law Commission submitted its 244th Report titled “Electoral Disqualification”.

In 2015, in the same case, the Supreme Court directed that trials in all pending cases related to sitting MPs and MLAs shall be completed within a year. It said the trial should be conducted on a day-to-day basis and in case it was not completed within a year, a report should be submitted to the chief justice of the respective High Court indicating the reasons for delay, following which it could issue appropriate directions.

Thereafter, in 2018, in Asian Resurfacing of Road matter, the Supreme Court directed that any stay granted by any court in India shall stand automatically vacated upon expiry of six months unless it is renewed by a speaking order. Thereafter, in 2019 in the Mahendra Chawla matter, the Supreme Court directed the Union of India as well as states and Union Territories to enforce the Witness Protection Scheme 2018 in letter and spirit and the same shall be construed as a law under Article 141 and 142 of the Constitution.

In 2021, in the case of K Ajith, the Supreme Court issued detailed directions regarding exercise of powers of withdrawal of a prosecution by public prosecutors under Section 321 CrPC. It made it mandatory to get the consent of the concerned court also be­fore withdrawal of prosecution. As a result of this, the public prosecutor alone cannot withdraw any prosecution against any person.

Even after issuing so many directions and judgments, no results are seen on the ground. In the meantime, in 2016, the Supreme Court entertained a petition by Ashwani Upadhyay under Article 32 of the Constitution in which the constitutional validity of Section 8 of the Representation of the People Act was challenged and a writ of mandamus sought for the entire India for expeditious trial of criminal cases against MPs and MLAs. In this matter, the Supreme Court passed different directions to the Union of India, all states and Union Territories and all High Courts seeking information on different aspects relating to pending criminal cases against MPs and MLAs. On the directions of the Supreme Court, special courts were established to decide cases related to MPs and MLAs. 

It directed that the High Courts shall monitor such cases in their respective jurisdictions by registering suo motu petitions. The Supreme Court also directed that judges presiding over special courts or CBI courts involving prosecution of MPs or MLAs shall not be transferred without its prior permission. The Court also directed that for withdrawal of prosecution against MPs and MLAs, permission is to be taken from the High Courts in those suo motu registered cases.

But in an order on November 9, 2023, the Supreme Court delegated its monitoring to the chief justices of all High Courts. The Supreme Court also noticed that there were as many as 5,175 criminal cases pending against MPs and MLAs as of November 2022. Out of these, 2,116 cases were pending for five years or more. In such a situation and in view of the large number of cases pending against MPs and MLAs, it was not feasible for the Supreme Court to keep continuous monitoring. Therefore, it was the right move to transfer supervision of these cases to the actual constitutional authorities having supervisory jurisdiction over subordinate courts.

In recent times, the judiciary has become strict in dealing with criminal cases related to MPs and MLAs. Several times bail has not been granted to influential politicians involved in corruption cases. 

—The writer is Advocate-On-Record, Supreme Court

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