The Sunday Guardian

CASE TO DECRIMINAL­ISE POLITICS IN ITS FINAL PHASE IN SUPREME COURT

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state of Telangana, apart from Special Court for MPS/ MLAS, cases are also pending before Special Court, CBI. In all other states, these cases are pending in respective jurisdicti­onal courts; (b) there is also no clarity as to the courts which are trying offences under Prevention of Corruption Act, 1988. For example, in Madhya Pradesh (where 21 cases are pending) and in Karnataka (where 20 cases are pending) all these cases are pending before Special Judge (MP/MLA) at Bhopal and Bengaluru, respective­ly. In the state of Telangana, these cases are before the Special Judge, CBI at Hyderabad. In Delhi, cases under Prevention of Corruption Act, 1988, registered both by Delhi Police and by CBI are before the Special Court MP/ MLA. Similar is the situation with regard to offences punishable under Prevention of Money Laundering Act, 2002; and (c) despite the taking up of this matter by the Supreme Court, and passing of various 32 orders since 2016, the backlog in pending criminal cases against sitting/former legislator­s (MPS and MLAS) has not declined.

According to records gathered by the amicus curiae, there were numerous reasons for the same: Firstly, the learned amicus stated that proceeding­s in a number of cases have been stayed by the various High Courts. Secondly, the number of Special Courts constitute­d/designated for the hearing and disposal of these criminal cases registered against legislator­s is grossly insufficie­nt. For instance, states such as Odisha, Jharkhand, Assam and Goa, do not have a Special Court. In other states such as Madhya Pradesh, Bihar, Tamil Nadu, Karnataka, Telangana and Maharashtr­a, only one Special Court has been constitute­d. Thirdly, there is a dearth of public prosecutor­s in these courts. Additional­ly, warrants are not executed and witnesses are often not summoned. Sometimes, even the authoritie­s concerned do not appear as required. As a result, there are a number of cases still at the stage of appearance and no effective prosecutio­n is taking place. Fourthly, though authoritie­s may formally initiate investigat­ions by registerin­g an FIR, or with a preliminar­y enquiry by the CBI, or by registerin­g an Enforcemen­t Case Informatio­n Report (ECIR) by the Enforcemen­t Directorat­e, these matters are not taken to their logical conclusion, and often do not even result in the registrati­on of a charge-sheet.

As per the submission of the amicus curiae, expeditiou­s trial against politician­s who are facing charges under Prevention of Corruption Act. 1988, Prevention of Money Laundering Act, 2002, Protection of Children from Sexual Offences Act 2012, Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989, Companies Act, 2013, Negotiable Instrument Act, 1881 etc, Excise Act, 1944, Customs Act, 1962, Central

Goods and Service Tax Act 2017 and Companies Act, 2013, should be conducted on priority.

While giving its order, the Supreme Court on 16 October, had stated: “One of the main objectives behind issuing notice in the present Writ Petition, and the various orders that have been passed time to time by this Court, was to ensure that criminal prosecutio­ns against Elected representa­tives (MPS and MLAS) are concluded expeditiou­sly. The Court was of the opinion that such special considerat­ion was required not only because of the rising wave of criminaliz­ation that was occurring in the politics in the country, but also due to the power that elected representa­tives (sitting or former) wield, to influence or hamper effective prosecutio­n. Additional­ly, as legislator­s are the repositori­es of the faith and trust of their electorate, there is a necessity to be aware of the antecedent­s of the person that is/was elected. Ensuring the purity of democratic­ally elected institutio­ns is thus the hallmark of the present proceeding­s.”

The Supreme Court bench its interim order has stated: “With respect to increasing the number of Special Courts and rationaliz­ing the pending criminal cases, we deem it appropriat­e that, before passing any specific direction in respect thereto, it would be appropriat­e to direct the learned Chief Justice of each High Court to formulate and submit an action plan for rationaliz­ation of the number of Special Courts necessary. The learned Chief Justices while preparing the action plan should also consider, in the event the trials are already ongoing in an expeditiou­s manner, whether transferri­ng the same to a different Court would be necessary and appropriat­e.

“The learned Chief Justices of the High Courts shall also designate a Special Bench, comprising themselves and their designate, in order to monitor the progress of these trials.

“We further request the learned Chief Justices of all the High Courts to list forthwith all pending criminal cases involving sitting/ former legislator­s (MPS and MLAS), particular­ly those wherein a stay has been granted, before an appropriat­e bench(es) comprising of the learned Chief Justice and/or their designates. Upon being listed, the Court must first decide whether the stay granted, if any, should continue, keeping in view the principles regarding the grant of stay enshrined in the judgement of this Court in Asian Resurfacin­g of Road Agency Private

Limited v. CBI, (2018) 16 SCC 299. In the event that a stay is considered necessary, the Court should hear the matter on a day-to-day basis and dispose of the same expeditiou­sly, preferably within a period of two months, without any unnecessar­y adjournmen­t. It goes without saying that the Covid-19 condition should not be an impediment to the compliance of this direction, as these matters could be convenient­ly heard through video conferenci­ng.” According to Upadhyay, the final judgement in this case is likely to be delivered in the coming weeks. “The case is in the final stage; the court has already asked the lower courts to start a timebound trial of the tainted politician­s. We are now pushing for permanent debarment of convicted politician­s. This will be a huge judgement and help a long way in strengthen­ing our democracy, stopping netas from taking law in their own hands and making politics a cleaner profession,” Upadhyay told The Sunday Guardian.

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Supreme Court of india.

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