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Synopsis

The Supreme Court has been informed that as many as 2018 cases pending against sitting and former MP/MLAs were decided in 2023 due to continuous monitoring by the top court.

As on January 1, 2023, 4697 cases were pending against the legislators. While as many as 2018 cases were decided, a total of 1746 fresh cases were filed against such lawmakers, making the total pendency as on January 1, 2014 as 4472.

"In view of the direction issued by this court in the present proceedings, the steps taken by the respective High Courts, and expeditious hearing by the Special Court MP/MLA, more than 2000 cases have been decided in the year 2023. However, a large number of cases are pending, and many of them are for a long period," a report by amicus curiae senior advocate Vijay Hansaria said.

In the 19th report the amicus pointed out that out of 5175 cases pending as on November 2022, 2116 (40%) cases were pending for more than five years. 

"It is thus necessary that the High Court may call for a report from the presiding officers of the Special Court MP/MLA of all those cases which are pending for three or more years with reason for long pendency along with a copy of the order sheet of last one year. It may be clarified that only a copy of the order sheet is to be sent and not the entire case file so that the trial is not affected. The High Court may thereafter, pass appropriate orders on micro examination of each case with a positive direction that a trial may be completed within one year," he suggested.

Among other suggestions, Hansaria asked the court to direct for creating a model website on the pattern of National Judicial Data Grid to upload real time information on the progress of the trial of cases against law makers. 

In its 20th report, the amicus curiae, asked the court to constitute a Committee under the Chairmanship of a sitting Judge of this court and also comprising Chief Justice/ Judges of some of the High Courts, a member of e-Committee, a nominee National Informatics Centre (NIC) and such other persons as the court may think appropriate. 

The information may include the following details a tab on the homepage of the High Court website with distinct visibility and prominence; total number of cases pending in each district, separately for Sessions cases and Magisterial trial cases with bifurcation of cases pending less than one year, one to three years, three to seven years and more than seven years. The oder sheet of each case may be uploaded by all the MP/MLA Courts within one week of the order passed, it said.

The report said the right to information being a part of freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution included the right of the citizens to know the progress of the trial of cases against law makers. 

"Such information can be gathered only if there is a prominent tab on the website of the High Court furnishing all the information. This court has repeatedly held that the voters are entitled to know about the criminal antecedents of the law makers which would include the progress of the trial and the reasons for delay. Such right has been affirmed by this court in various pronouncements including in the case of Association for Democratic Reforms (2002), People’s Union for Civil Liberties (2003) People's Union for Civil Liberties II (2013), Brajesh Singh (2021) and Anoop Baranwal (2023)," the report stated.

The amicus curiae also emphasised the need for micro monitoring of cases pending more than more years.

His report stated the High Courts (Allahabad, Delhi, Punjab & Haryana, Telangana and Tripura) have monitored the progress of the trial of the cases by passing effective detailed orders; whereas, other High Courts have only sought information of the pending cases. 

"This court may consider passing appropriate directions so that the High Courts in the Suo Motu Writ Petitions registered in terms of the judgment and order dated 09.11.2023 to closely monitor the progress and pass suitable directions wherever necessary," it said.

The report pointed out though a number of cases are decided, yet a large number of cases are pending trial for a long period. In the 19th report the Amicus pointed out that out of 5175 cases pending as on November 2022, 2116 (40%) cases were pending for more than 5 years. 

"It is thus necessary that the High Court may call for a report from the presiding officers of the Special Court MP/MLA of all those cases which are pending for three or more years with reason for long pendency along with a copy of the order sheet of last one year. It may be clarified that only a copy of the order sheet is to be sent and not the entire case file so that the trial is not affected. The High Court may thereafter, pass appropriate orders on micro examination of each case with a positive direction that a trial may be completed within one year," it said.

With regard to monitoring of investigation, the report said it was further pertinent to note that a large number of cases are pending investigation for a long period.

It pointed out the Punjab & Haryana in its order on September 29, 2022 has noted that “the process and investigation according to the statute requires to be completed within the time stipulated, but it appears that the cases of Members of Legislative Assembly and Members of Parliament are being put on different pedestal and inaction on the part of the investigating agencies is writ large.” The High Court has also noted that in one FIR of the year 2005, sanction for prosecution against 31 accused persons is pending. It is thus submitted that it may be clarified that the High Courts in the Suo Motu Writ Petitions shall also consider and pass appropriate orders for time bound completion of investigation of the criminal cases pending against MP/MLAs, it said.

The report also highlighted the Supreme Court's order passed in case of Public Interest Foundation (2015) in relation to sitting MPs and MLAs who have charges framed against them for the offences which are specified in Sections 8(1), 8(2) and 8(3) of the RP Act, the trial shall be concluded as speedily and expeditiously as may be possible and in no case later than one year from the date of the framing of charge(s). In such cases, as far as possible, the trial shall be conducted on a day-to-day basis, it stated.

The amicus curiae also stated as per the report published by Association of Democratic Reforms (ADR) for the Lok Sabha elections 2024 Phase I and Phase II, out of 2810 candidates (Phase I - 1618 candidates and Phase II - 1192 candidates), 501 (18%) candidates have criminal cases against them, out of which 327 (12%) are serious criminal cases (punishable with imprisonment of five years and more). 

The same was the position in 2019 Lok Sabha elections in which out of 7928 candidates, 1500 candidates (19%) had criminal cases, out of which 1070 candidates (13%) were serious criminal cases. However, out of 514 elected members of 17th Lok Sabha (2019-2024), 225 members (44%) had criminal cases against them. Thus, the candidates with criminal cases have won more seats than candidates without criminal cases. In this context, it is necessary that this court may pass further orders for expeditious disposal of pending trials and investigation under strict monitoring by the respective High Courts, the report said.

Case Title: Ashwini Kumar Upadhaya Vs UOI