How Many Criminal Cases Against MPs/MLAs Pending For Over 5 Years? Supreme Court Seeks Information From High Courts

This order was passed pursuant to the request of Senior Advocate, Mr. Vijay Hansaria, Amicus Curiae that in all cases where there are more than 5 years of pendency, a report be called from the respective High Courts. He further requested the Apex Court to consider that the judicial officers dealing with the criminal cases of MPs/MLAs be directed to deal with them exclusively.

The Apex Court also modified its order dated 10.08.2021, which mandated the Court's prior approval for the transfer of judicial officers presiding over the Special Courts/CBI courts involved in the prosecution of MPs/MLAs.

Mr. Hansaria apprised a Bench comprising Justices D.Y. Chandrachud and Hima Kohli that several applications are filed before the Apex Court by respective High Courts for the purpose of seeking prior approval for transfers. He suggested that the Chief Justice of the respective High Courts can look into the issue of transfer and the process of seeking prior permission of the Apex Court can be done away with. In view of the submission of the Amicus Curiae, the Bench modified its directions that henceforth it would not be necessary for High Courts to seek prior permission of the Apex Court for transfer of judicial officers where the transfers are made in normal course consequent upon the end of their tenure, in a particular posting. But, it noted that the order dated 10.08.2021 requiring prior approval would be applicable to all transfers other than normal course of transfers and postings.

In the petition filed by advocate Ashwini Upadhyay, the Court has passed a series of orders for creating Special Courts to try the cases against sitting and former MPs/MLAs. The Apex Court, thereafter, had been monitoring the expeditious disposal of these criminal cases.

In order to put forth the gravity of the concern, Mr. Hansaria submitted that out of 768 members of Parliament almost 400 have criminal cases against them. He also asserted that one of the limbs of the writ petition was challenge to the vires of Section 8 of the Representation of Peoples Act to the extent it bars persons from contesting elections only for a period of certain years on being sentenced for the specified offences. Mr. Hansaria added -

"Like in the Bilkis Bano case, the accused who had been convicted for life are out now. Can they be legislators after the time prescribed in Section 8?"

The Bench decided to hear the concerns of the Amicus in detail and said that it would post the matter on a Tuesday (Non-Miscellaneous Day) for the said purpose. In the meanwhile, Mr. Hansaria is to file a short note indicating the directions that he seeks from the Apex Court in the present proceedings.

[Case Title: Ashwini Kumar Upadhyay v. UOI W.P.(C) No. 699/2016]