top of page
  • Writer's pictureLAWGIC STRATUM


Author: Swetha C

Image source: Google


Public interest litigation was filed, by one Ashwini Upadhyay, a BJP leader and advocate for the speedy disposal of pending criminal cases against the former and sitting member of the legislative assembly or Member of Parliament in the Supreme Court. The Honorable Court held that the report should be submitted regarding the 1581 unsolved cases and further directed the report on the number of unsolved cases, reports on convicted and acquittal, and also should look and report on whether any other criminal cases have been lodged. This court also authorized the central scheme for setting up courts to deal with criminal cases and the valuation regarding the number of funds required. In his petition, Upadhyay also sought direction from the court to impose the ban on politicians convicted in criminal cases.[1]

As a result, state as Andhra Pradesh, Bihar, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Delhi, Tamilnadu, Telangana, Uttar Pradesh, and West Bengal have a Special court bearing one wherein, Delhi has two such courts[2]. The central government has sanctioned courts for the rest of the states, which are yet to constitute.


On 21.02.2018, the High court sent a proposal to the state government on Special court, which resulted on July 16, 2018, the state government informed about adopting Telangana format in its notification which got approved in September. Government order dated 26.04.2019 said if offenses stated in the Special act committed by MP/MLA in Chennai, then he will have to be tried by the court. So, when the supreme court chief Justice on September 16, 2020, referred the matter to the criminal rules committee for studying, the functioning of the supreme court and to look into suggestions made by Vijay Hansaria (amicus curiae appointed by the court), the Supreme Court aired its view, and the UOI said it would provide all necessary infra and finances. The later apex court issued notice to all the states and awaited their response; October 6th order directed the high court to provide information about the number of Special Courts.

Meanwhile, on 13.10.2020, the Madras High Court had traced back to the constitutionality of the Special Court set up and held it is invalid. A three-judge bench held that such courts could only be offense-centric and not offender-centric thus, it is illegal that the courts can be constituted only through statutes, not by judicial or executive order. The court finally contended that the apex court, otherwise the renderer of Justice, fell by an error by adopting the order of Telangana state. In Tamil Nadu, the major parties viz. ADMK, DMK whenever they come to power, they file defamation cases against others, they would get a stay in the high court, and when power change happens in government, and all cases will be withdrawn.[4]

When the objections raised in the high court, the Hansaria report countered by citing the case of the state of West Bengal v Anwar Ali Sarkar[5]. When the defense based this kind would be against article 14 of the constitution, which obligates no discrimination should be made and every people should be treated equal, the court struck down the basis with article 14 in favor the prescribed procedure would be less favorable to accused persons in unfair. Another case of Syed Qassim Ravi v State of Hyderabad[6]upheld the constitutional validity of the Special court where Justice B.K Mukherjee held nothing unreasonable in appointing a Special court.

The report also relied on the 239th law commission report that the influential person’s cases need to come up for Special focus.[7] When the Madras high court said such a Special court will result in transferring the cases to a particular judge, the report mentioned, the ruling of transfer of the particular case to a particular judge is not arbitrary but in the public interest and public good in Girish Kumar Suneja v CBI. Section 11 of Crpc says that once a Special Court is established, no other court of the magistrate shall have jurisdiction. Various other acts like prevention of corruption act, prevention of money laundering act, Sc & ST act, POCSO mirrors the said provision for setting up the Special court. Thus, November 11, 2020, with all this into account, held no illegality in constituting Special court as they are in the direction of the honorable court in power under article 142 of the Constitution.[8]


As held in Public Interest foundation v UOI[9], cases should be concluded speedily and not later than one year from the date of framing charges. Cases of normal nature take decades to render Justice, so when cases involving people from influential places, the higher level usually goes unnoticed, and sadly no Justice prevails. Now the court held the Special court valid the government should ensure zero discrepancies in case disposal of former or sitting legislators. And the ban for convicted politicians can also be a fair point while referring to the politician for the greater good of the public and community. Thus, they could now have the last laugh.


[1] 1 Ashwini Kumar Upadhyay vs Union Of India on 25 September, 2018 [2] utm_campaign=cppst Need special courts in each districts. [3]SNEHA KALITA Advocate On Record , Supreme Court 422, New Lawyers’ Chamber Supreme Court of India, New Delhi-110 001 [4] Madras High Court Panel Questions Validity Of Supreme Court Order Setting Up Special Courts For MPs/MLAs special-courts-for-mpsmlas-165375 [5] The State Of West Bengal vs Anwar All Sarkarhabib, 1952 AIR 75, 1952 SCR 284 [6] Syed Qasim Razvi vs The State Of Hyderabad and ors, 1953 AIR 156, 1953 SCR 589 [7] No illegality in setting up special courts to try MPs and MLAs: Amicus curiae to SC The Madras HC had questioned the constitutional validity of such courts [8] No Illegality In Establishing 'Offender Centric' Courts For Trial Of MPs/MLAs: Amicus Curiae Tells Supreme Court amicus-curiae-tells-supreme-court-read-report-165323 [9] Public Interest Foundation vs Union Of India on 25 September, 2018

114 views1 comment
bottom of page