Madras HC raises questions on special courts to try MPs, MLAs

New Delhi: A three-judge committee of the Madras High Court has questioned the constitutional validity of setting up special courts to exclusively try MPs and MLAs for crimes.

It said the special courts should be “offence-centric” and not “offender-centric.”

“An MP/MLA, who commits an offence under the POCSO Act [or other Special Acts like Prevention of Corruption Act, Narcotic Drugs and Psychotropic Substances Act] can only be tried by a Special Court created under the POCSO Act [PC Act, NDPS Act] and there cannot be another Special Court exclusively for trial of an MP/MLA, who commits POCSO offence,” the Madras High Court Committee report reasoned.

This is part of a status report filed by amicus curiae Vijay Hansaria and advocate Sneha Kalita in the Supreme Court on Monday.

The HC Committee report, dated October 13, comes in the face of a 2017 Supreme Court order authorising the Centre to set up 12 special courts to exclusively try criminal politicians across the country.

It also comes at a time when a three-judge Bench of the apex court led by Justice NV Ramana is looking at ways to expedite these trials pending for years, in some cases, for decades. Over 4,400 criminal trials are pending against legislators. Of this, over 2,500 trials involve sitting legislators.

But the Madras High Court’s Criminal Rules Committee on Special Courts for Trial of Criminal Cases against MPs/MLAs, composed of Justices PN Prakash, G Jayachandran and N Sathish Kumar, said special courts could not be set up on the basis of judicial or executive orders.

“Special Courts can only be constituted by a statute and not by executive or judicial fiats,” Hansaria summarised the observations of the committee.

The committee raised strong reservations against setting up special courts in Tamil Nadu.

“The existing court structure in Tamil Nadu, which is robust, is more than enough to deal with the cases involving MPs and MLAs,” the committee said.

It urged the Madras High Court Chief Justice to bring this “fact” to the notice of the Supreme Court to get an “exemption from establishing special courts for trial of cases involving MPs and MLAs.”

The committee, Hansaria summarised, also referred to how cases were filed and withdrawn in Tamil Nadu when power changed hands in the State.

“The two principal political parties viz., DMK and AIADMK, whenever they come to power, file defamation cases against opposition leaders in the court of sessions. 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,” it noted.

The committee pointed to how witnesses, probably in Kanyakumari, have to travel 700 km to Chennai to testify at the special court there.

“None thought about their safety,” the committee pointed out.