2023 INSC 991 Page 1 of 15

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) NO. 699 OF 2016

ASHWINI KUMAR UPADHYAY ...PETITIONER(S)

VERSUS

UNION OF INDIA & ANR. …RESPONDENT(S)

J U D G M E N T

Dr Dhananjaya Y Chandrachud, CJI

1. This Writ Petition under Article 32 of the Constitution of India, in the nat ure

of Public Interest, seeks two distinct reliefs. The first prayer relates to expeditious

disposal of criminal cases against elected members of the Parliament and

Legislative Assemblies

1

. The second prayer relates to the constitutional validity of

Section 8 of the Representation of Peoples Act, 1951. B y this order, we dispose of

this Writ Petition as regards the first prayer after formulating certain guidelines for

expeditious disposal of the subject cases. We have also requested the learned

Chief Justices of the respective High Cour ts to constitute a Special Bench to review

and monitor the progress of the se cases from time to time.

2. A short reference to the orders passed by this Court from time to time,

affidavits of the State Governments, and reports of the High Courts as analyzed by

the Amicus in his written submissions are necessary before articulating the

1

Hereinafter referred to as the ‘subject cases’.

Page 2 of 15

guidelines and disposing of the writ petition with appropriate directions. These

proceedings commenced with notices being issued to the Union of India, State

Governments and High Courts. At a later stage, this Court also appointed Shri Vijay

Hansaria, Ld. Senior Advocate as Amicus Curiae. We place on record appreciation

for his invaluable contribution and assistance.

3. In fact, this is not the first case in which the need for an expeditious disposal

of criminal cases against elected members of the Parliament and Legislative

Assemblies is examined. In Public Interest Foundation v. Union of India

2

, this

court held:

“10. We, accordingly, direct that 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. If

for some extraordinary circumstances the court concerned is

not being able to conclude the trial within one year from the

date of framing of charge(s), such court would submit the

report to the Chief Justice of the respective High Court

indicating special reasons for not adhering to the above time-

limit and delay in conclusion of the trial. In such situation, the

Chief Justice may issue appropriate directions to the court

concerned extending the time for conclusion of the trial.”

4. At an early stage, this Court recorded the statement of the Ld. Additional

Solicitor General that these proceedings are not adversarial in nature and that the

Union would not be averse to setting up special courts for expeditious trial and

disposal of the subject cases. By order dated 01.11.2017, this Court called upon

2

(2015) 11 SCC 433

Page 3 of 15

the Union, States and the High Courts to respond to the idea of setting up special

courts and the financial implications involved in its implementation.

5. After gathering the necessary information, the Union filed an affidavit as is

evident from the order dated 14.12.2017, contempl ating setting up twelve special

courts exercising jurisdiction over multiple states. By the same order, the High

Courts were called upon to identify and transfer the subject cases to the special

courts that were to be established. The Union was also directed to bear the

estimated expenditure of about Rs. 7.80 crores for running these twelve special

courts.

6. However, as the above- referred decision had policy and financial

implications, after much deliberation, this Court reconsidered the matter and

accepted the suggestion of the Amicus . That is, instead of setting up special courts,

a specified court in each district, both at the sessions and magistrate level, be

identified and earmarked for prioritized hearing of the subject cases. The Union,

State Governments and High Courts were asked to respond to the new suggestion.

7. On 04.12.2018, the High Courts were directed to examine the matter and

constitute as many sessions and magisterial courts within their jurisdiction as is

considered proper and expedient. By the same order, it was also directed that the

subject cases punishable with death/life against sitting and former MPs/MLAs

should be taken up on a priority basis, followed by cases punishable with

imprisonment up to 5 years or more. Thereafter, all other criminal cases against

sitting MPs/MLAs, followed by similar cases against former MPs/MLAs were to be

Page 4 of 15

taken up. This order also suggested that the designated courts will take up and

hear the subject cases on a day -to-day basis.

8. On 05.03.2020, the High Courts were directed to provide information about

the (i) the MP/MLA involved in a case, (ii) whether sitting or former, (iii) date of FIR,

(iv) offence alleged, (v) date of filing of charge sheet, (vi) date of framing of charges,

(vii) present status, (viii) stay of trial, if any by the High Court, (ix) expected time of

completion of trial, (x) name of the court, and (xi) the district in which the case is

filed. The initial information received from the High Courts related only to IPC

offences. In order to have a comprehensive understanding of the subject cases,

by an order dated 10.09.2020, this Court called for information about prosecution

of MPs and MLAs under special legislations. The High Courts compiled the said

information and submitted their reports to us in the form of affidavits.

9. On the basis of the above information, a comprehensive protocol, in the

nature of guidelines for identification of designated courts , the number of such

courts, the procedure and practice that they need to adopt and follow , witness

protection, etc. was prepared by the learned Amicus . These were noted by this

Court in the order dated 10.09.2020 and they are reproduced hereinbelow for ready

reference:

(i) Special Courts in every district for MPs/MLAs:-

a. Each High Court may be directed to assign/allocate

criminal cases involving former and sitting legislators to as

many Sessions Courts and Magisterial Courts as the

respective High Courts may consider proper, fit and expedient

having regard to the number and nature of pending cases.

Such decisions may be taken by the High Courts within four

weeks of the order.

Page 5 of 15

b. The State Governments will issue necessary

notification in terms of the recommendation of the High Court

within two weeks from the receipt of the recommendation.

c. Case records to be transferred expeditiously to the

Special Courts.

(ii) Practice Directions :-

a. Special Courts will give priority to the trial of cases in

the following order:-

i. Offences punishable with death/life imprisonment;

ii. Offences punishable with imprisonment for 7 years or

more;

iii. Other offences.

b. Cases involving sitting legislators to be given priority

over former legislators.

c. Forensic laboratories will give priority in furnishing the

report in respect of cases being tried by the Special Courts

and will submit all pending reports within one month.

d. State Governments/UTs will appoint/designate at least

two Special Public Prosecutors for prosecuting cases in the

Special Courts in consultation with District and Sessions

Judge in the concerned District.

e. No adjournment shall be granted except in rare and

exceptional circumstances and for reasons to be recorded.

f. The Superintendent of Police of respective Districts

shall be responsible to ensure production of accused persons

before the respective courts on the dates fixed and the

execution of NBWs issued by the Courts.

g. The SHO of the concerned police station shall be

personally responsible for service of summons to the

witnesses and their appearance and deposition in the court.

h. Courts will use technology of video conferencing for

examination of witnesses and appearance of the accused

persons, to the extent possible.

(iii) Cases under stay :-

a. This Hon’ble Court in Asian Resurfacing of Road

Agency Pvt. Ltd vs. CBI, 2018 (16) SCC 299, held as under:-

“If stay is granted, it should not normally be unconditional or

of indefinite duration. Appropriate conditions may be imposed

so that the party in whose favour stay is granted is

accountable if court finally finds no merit in the matter and the

other side suffers loss and injustice. To give effect to the

legislative policy and the mandate of Article 21 for speedy

justice in criminal cases, if stay is granted, matter should be

taken on day-to-day basis and concluded within two- three

months. Where the matter remains pending for longer period,

the order of stay will stand vacated on expiry of six months,

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unless extension is granted by a speaking order showing

extraordinary situation where continuing stay was to be

preferred to the final disposal of trial by the trial Court. This

timeline is being fixed in view of the fact that such trials are

expected to be concluded normally in one to two years.”

In view of the law laid down in the aforesaid case, trial

courts to proceed with the trial notwithstanding any stay

granted by the High Court unless fresh order is passed

extending the stay by recording reasons.

b. In the alternative, Registrar Generals may be directed

to place the matters involving MPs and MLAs before Hon’ble

the Chief Justice for appropriate orders for urgent listing of

such cases.

(iv) Witness Protection :-

a. Witness protection in all such cases is essential having

regard to vulnerability of the witnesses and the influence

exercised by the legislators facing criminal trials. This Hon’ble

Court in the case of Mahender Chawla vs Union of India, 2018

(16) SCC 299 has framed “Witness Protection Scheme, 2018”

and made it applicable to all the States till the enactment of

suitable legislation by the Parliament or State legislatures.

b. Trial Courts shall consider granting of protection under

the aforesaid scheme to all the witnesses, without any

application by the respective witnesses.

(v) Monitoring by High Courts

a. Each High Court shall register a Suo Moto case with

the title “In Re: Special Courts for MPs/MLAs” to monitor the

progress of cases pending in the State and ensure

compliance of direction of this Hon’ble Court.

b. The writ petition, so registered shall be heard by a

Division Bench of the High Court to be constituted by the Chief

Justice.

c. A Senior Advocate shall be appointed as Amicus

Curiae.

d. The State shall be represented by the Advocate

General or an Additional Advocate General.

e. A senior Police Officer of the rank not below Inspector

General of Police shall be present in the Court in each hearing

to furnish requisite information, as and when required.

f. Each Special Court will send a monthly status report to

the High Court and the High Court, on examination of the

same, will issue necessary directions to ensure speedy

disposal of cases.

g. The case shall be heard by the High Court at such

interval as may be necessary; however, at least once three

months.”

Page 7 of 15

10. After hearing the Union and State Governments, we sought the opinion on

the above referred suggestions along with an action plan for rationalization of the

special courts from the Chief Justices of the respective High Courts

3

. This being

an important order, the relevant portion is extracted herein;

“16. 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, with respect to the following aspects:

a. Total number of pending cases in each district

b. Required number of proportionate Special Courts

c. Number of Courts that are currently available

d. Number of Judges and the subject categories of the

cases

e. Tenure of the Judges to be designated

f. Number of cases to be assigned to each Judge

g. Expected time for disposal of the cases

h. Distance of the Courts to be designated

i. Adequacy of infrastructure

17. 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.

18. 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.

19. The learned Chief Justices are also requested to give

their comments on the other suggestions of the learned

amicus, as extracted by us in our order dated 10.09.2020 and

this order. They are also requested to send us additional

suggestion, if any, for the purpose of expedient disposal of

pending criminal cases against legislators. The action plan,

with the comments and suggestions of the learned Chief

Justices of the High Courts, are to be sent to the Secretary

General of this Court, preferably within a week. A copy may

also be sent to the learned amicus curiae by way of e- mail.

3

See order dated 16.09.2020.

Page 8 of 15

20. 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 judgment 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

month, 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.”

11. In continuation of the above referred order dated 16.09.2020, further

directions were issued and information was sought regarding – (a) available

infrastructural facilities

4

; (b) extension of witness protection as provided in

Mahender Chawla v. Union of India, ( 2019) 14 SCC 615

5

; (c) orders withdrawing

prosecution under section 321 Cr.P.C .

6

; and (d) transfer of judicial officers

7

. The

necessary information was provided through affidavits.

12. Present status on case pendency: A comprehensive picture of the pending

subject cases in various courts spread across the States and Union Territories is

made available to us. The following table evidences the number of cases pending

against MPs and MLAs in each State and Union Territory as of December 2018,

December 2021 and the latest being November 2022.

4

order dated 06.10.2020.

5

order dated 04.11.2020.

6

order dated 10.08.2021.

7

order dated 10.08.2021 clarified later by order dated 10.10.2021 and 12.07.2023.

Page 9 of 15

Sr.

No.

State/UT Case

in

Dec.

2018

Cases

in

Dec.

2021

Cases as in November 2022

Total

cases

More

than 5

years

Case load

per judge

1 2 3 4 5 6 7

1. Andhra Pradesh 109 146 92 50 92

2. Arunachal

Pradesh

6 16 4 1 Between 1

to 4

3. Assam 38 69 75 33 Between 0

to 2.5

4. Bihar 304 571 546 381 Average

7.3

5. Chhattisgarh 24 12 10 2 Average

1.1

6. Delhi 124 97 93 27 Average 16

7. Goa 15 12 19 5 Between 2

to 8

8. Gujarat 119 33 28 11 Between 1

to 3

9. Haryana 35 46 48 18 Between 0

to 2

10. Himachal

Pradesh

34 68 70 17 Between 1

to 19

11. Jharkhand 160 207 198 72 Between 1

to 37

12. Karnataka 161 150 221 61 Between

13

to 156

13. Kerala 312 401 384 22 Between 0

to 59

14. Madhya Pradesh 168 260 329 51 Between

25

to 210

15. Maharashtra 303 470 482 169 Between 1

to 31

16. Manipur 12 4 10 1 Between 1

to 4

17. Meghalaya 3 5 4 4 Between 1

to 2

18. Mizoram 4 1 0 0 Not

applicable

19. Nagaland 1 0 0 0 Not

applicable

Page 10 of 15

20. Orissa 331 360 454 323 Between 0

to 30

21. Punjab 34 74 91 16 Between 0

to 4

22. Rajasthan 46 56 57 21 Between 1

to 4

23. Sikkim 0 0 0 0 0

24. Tamil Nadu 321 328 260 60 Between 1

to 22

25. Telangana 99 50 17 4 Between 1

to 16

26. Tripura 16 0 0 0 Not

Applicable

27. Uttar Pradesh 992 1339 1377 719 Average

9.31

28. Uttarakhand 34 10 15 2 Not

furnished

29. West Bengal 269 136 244 23 Between 0

to 31

30. Andaman &

Nicobar (U.T.)

0 0 0 0 Not

applicable

31. Chandigarh (U.T.) — 10 10 1 Between 0

to 5

32. Dadra & Nagar

Haveli (U.T.)

2 0 0 0 Not

applicable

33. Jammu &

Kashmir (U.T.)

12 7 6 6 Not

furnished

34. Ladakh (U.T.) — — — — —

35. Lakshadweep

(U.T.)

— — — — —

36. Puducherry (U.T.) 34 36 31 16 Between 1

to 12

Total 4122 4974 5175 2116

13. Analysis: The above referred table shows that there are as many as 5,175

subject cases pending as of November, 2022. Of these, cases that are pending for

more than 5 years are as many as 2,116, which figure is more than 40% of such

pendencies. This is a large number .

Page 11 of 15

14. These cases have a direct bearing on our political democracy. Hence, there

is a compelling need to make every effort to ensure that these cases are taken up

on priority and decided expeditiously. Confidence and trust of the constituency in

their political representative, be it an MP or an MLA, is necessary for an interactive,

efficient and effective functioning of a parliamentary democracy. However, such

confidence is difficult to expect when figures, as indicated in the above referred

table, loom large in our polity.

15. In fact, there are no two views about the compelling need to take up and

dispose of the subject cases expeditiously. We have no doubt in our mind that even

the political representative, be it MP or an MLA, involved in the prosecution would

also seek a quick disposal of these cases. However, the problem lies else where.

It seems systemic, perhaps institutional , and takes within its sweep ma ny factors

including the method of adversarial litigation that we have adopted. Yet, at every

stage of the practice and procedure that we adopt, there is scope for reform. It is

in this context that we have earnestly conducted and monitored this case for the

last seven years.

16. Having analyzed the all India data on the pendency of subject cases in

States and Union Territories, we have at the outset noted a considerable

asymmetric disposition between states and even between districts within a State,

on factors that have a bearing o n early disposal. This is evident from the stark

difference that exists in the actual number of pending cases between States and

even districts within States. There are also variations in the availability of judges to

decide the cases, the case load per judge, the speed at which the cases are

decided, the state of physical and technological infrastructure, availability of

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prosecutors, etc. There is yet another aspect , and this may not be amenable to

data collection, but has a direct bearing on our endeavor for an early disposal of

these cases. The practice and procedure prevalent in every court is distinct and is

sometimes deep- rooted. There are many factors, which may be historical, cultural,

regional or linguistic, that influence the work ethic in a court. This is where the role

of the Bar becomes important, and therefore, their participation becomes crucial.

Once we recognize the inextricable connection and interdependence of the Bar

and the Bench, the need to focus and address these issues comes to light. At this

stage, we are merely attempting to identify factors that must be taken into account

while making an accurate assessment for an effective and expeditious disposal of

the subject cases.

17. Having analyzed the data and information available on record, two

conclusions emerged - first, there are multiple factors that have a direct bearing on

the disposal of the subject cases, and second, there is substantial variation from

state to state, and district to district, with respect to each of these factors. These

conclusions – the plurality of considerations and their asymmetry between State to

State and even district to district, have a direct bearing on the decision or a

measure that we may adopt for early disposal of the subject cases.

18. We have monitored these proceedings from 2017 onwards and have

examined the data and information brought to our notice by the High Courts. We

have also gone through the affidavits filed on behalf of the State Governments

which have shown equal concern and earnestness in ensuring early disposal of

the subject cases. With the assistance of the learned Amicus , we have formulated

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certain guidelines that will enable the completion of investigation, smooth conduct

of trial, removal of impediments and conclusion of the subject cases at the earliest.

19. Having considered the matter in detail, we are of the opinion that there exist

multiple factors. Each of these influences early disposal of the subject cases. This,

coupled with their dissimilarity from State to State, makes it difficult for this Court

to form a uniform or standard guideline for trial courts across the length and breadth

of this country to dispose of the subject cases. We have gone through the affidavits

filed by the High Courts explaining the situation that exists within their jurisdiction.

The High Courts have been dealing with these issues on the judicial as well as on

the administrative side, and they are alive to the position that exists in each of their

district courts. Under Article 227, the High Courts are entrusted with the power of

superintendence over the district judiciary

8

. We deem it appropriate to leave it to

the High Courts to evolve such method or apply such measure that they deem

expedient for an effective monitoring of the subject cases.

20. Having considered the matter in detail, we direct that:

(i) Learned Chief Justices of the High Courts shall register a suo- motu

case with the title, “In Re: designated courts for MPs/MLAs” to monitor

early disposal of criminal cases pending against the members of

Parliament and Legislative Assemblies. The suo- motu case may be

heard by the Special Bench presided by the Learned Chief Justice or

a bench assigned by them .

(ii) The Special Bench hearing the suo- motu case may list the matter at

8

Though Constitution uses the expression ‘subordinate’ to describe the district judiciary, it is not to be

understood in the literal sense. In fact, this Court in All India Judges Association v. Union of India &

Ors., 2023 SCC OnLine SC 673, has held that district judiciary is a part of our basic structure.

Page 14 of 15

regular intervals as is felt necessary. The High Court may issue such

orders and/ or directions as are necessary for expeditious and effective

disposal of the subject cases. The Special Bench may consider calling

upon the Advocate General or the Public Prosecutor to assist the

Court.

(iii) The High Court may require the Principal District and Sessions Judge

to bear the responsibility of allocating the subject cases to such court

or courts as is co nsidered appropriate and effective. The High Court

may call upon the Principal District and Sessions Judge to send

reports at such intervals as it considers expedient.

(iv) The designated courts shall give priority:

(i) first to criminal cases against MP’s & MLA’s punishable with death

or life imprisonment then to (ii) cases punishable with imprisonment

for 5 years or more, and then hear (iii) other cases.

The Trial Courts shall not adjourn the cases except for rare and

compelling reasons.

(v) The learned Chief Justices may list case s in which orders of stay of

trial have been passed before the Special Bench to ensure that

appropriate orders, including vacation of stay orders are passed to

ensure commencement and conclusion of trial.

(vi) The Principal District and Sessions Judge shall ensure sufficient

infrastructure facility for the designated courts and also enable it to

adopt such technology as is expedient for effective and efficient

functioning.

(vii) The High Courts shall create an independent tab on their website

providing district-wise information about the details of the year of

Page 15 of 15

filing, number of subject cases pending and stage of proceedings . We

make it clear that while monitoring the subject cases, the Special

Bench may pass such orders or give such additional directions as are

necessary for early disposal of the subject cases.

21. With these directions, we dispose of this Writ Petition with respect to the first

prayer concerning the expeditious disposal of criminal cases against elected

members of Parliament and Legislative Assemblies.

22. This Writ Petition will now be listed for hearing on the other issue relating to

the constitutional validity of Section 8 of the Representation of Peoples Act, 1951.

We also place on record our appreciation for the efforts taken by the learned

Amicus Curiae.

……..………………………………. CJI.

[ Dr Dhananjaya Y Chandrachud]

……………….………………………….J.

[Pamidighantam Sri Narasimha]

……………….………………………….J.

[Manoj Misra]

New Delhi;

November 09, 2023