New Delhi: The Supreme Court on Monday was informed that a three-judge panel of the Madras High Court has said the top court had never directed the High Courts to constitute special courts for MP/MLAs exclusively, for the simple reason that it is not legally permissible to create such special courts.
According to a report filed by amicus curiae, senior advocate Vijay Hansaria, the Criminal Rules Committee of the three High Court judges raised the issue of constitutional validity of the special courts for MPs/MLAs.
The report filed by Hansaria, citing the panel’s observation, said: “Special Courts can only be ‘Offence Centric’ and not ‘Offender Centric’. Courts can be constituted only by statute and cannot be constituted by judicial or executive fiats.”
The panel sent the report to Hansaria, who has been appointed as amicus curiae in the matter by the top court.
“The Supreme Court was very guarded in its orders, but unfortunately, fell in error by creating special courts for trial of criminal cases involving MPs and MLAs by implicitly adopting the format of the Government Order that was passed by the Telangana state,” said the report.
The report said the fallacy in the government order creating special courts for MPs/MLAs is that it erroneously traces the source of power to the Supreme Court order of November 1, 2017 passed in a case filed by Ashwini Kumar Upadhyay and not to any statute.
The panel said “is not known how a court of session can function covering the entire state”.
It also argued that the existing court structure in Tamil Nadu, which is robust, is more than enough to deal with the cases involving MPs and MLAs.
“Chief Justice is requested to bring this fact to the notice of the Supreme Court and get exemption from establishing Special Courts for trial of cases involving MPs and MLAs and permit restoration of status quo ante,” said the panel.
The Madras High Court panel objections were placed on record before the top court by Hansaria and advocate Sneha Kalita, who is assisting him, through their 80-page report filed on Monday.
A bench headed by Justice N.V. Ramana is scheduled to take up the matter on Wednesday.
On October 6, the apex court had directed all the High Courts to provide information of the number of special courts for cases involving MPs/MLAs, in a prescribed format, to provide more clarity on the rationalising exercise.