Special Courts to Deal with Tainted Lawmakers

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TOPIC: General studies 2

• Structure, organization and functioning of the Executive and the Judiciary
• Parliament and State Legislatures – structure, functioning, conduct of business, powers & privileges and issues arising out of these.

In news: In an important decision intended to put an end to the inordinate delay to the prosecution of politicians in criminal cases, the centre has decided to set up courts to deal exclusively for cases against MPs and MLAs and to dispose them within a year. The 1,581 criminal cases were declared by politicians in their nominations in the 2014 general elections. This is a blow to politicians who despite being criminal charges have stayed in legislatures because of delays. Even the SC has given green signal to this proposal.

The concept of special courts is not bad on paper. But their efficacy has yet not been proved over the years. Though special courts are fine, in general perspective, it is important to create capacity to deliver speedy justice on whole. The special courts cannot take the place of regular dispensation. If too many special courts, it will hamper the regular courts. The judicial system cannot perform more inefficiently than present situation.

Previous instances

The fast track courts for women safety issues were also created. However, not a very encouraging option has been received in terms of delivering justice. Post 2012 December outrage, 399 fast-track courts for rape cases were put into place around the country wherein rape trials should ideally be completed in two months. But it has been found that in the process of trying to speed up the case, the procedural safeguards that an accused is entitled to goes away. It was earlier decided to that fast track courts will have additional judges and infrastructure, like courtrooms. As it did not happen, they continued with existing infrastructure and no additional judges, thereby increasing burden on judiciary.

Also, there were commercial courts created in 2015 to expedite the matter of commercial interest to send out the message to the community that this is an equally commercially sensitive jurisdiction and ready to handle commercial matters in a timely fashion. It is too early to judge the performance of this court though.

Apart from passing legislatures and providing infrastructure, there should be manpower to man these institutions. Creation of new courts will put severe stress on existing manpower if new recruitments and promotions do not take place.

Treating unequally?

Special courts interfere with the flow of law in terms of evolution of jurisprudence. Why does a certain subject matter deserves different kind of treatment? It seems initially that it violates Art 14 of Constitution of India for having equal protection of laws. However, SC has observed that art 14 includes that law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. Thus, as apex court has adjudged “political persons” to be a class in themselves, special courts prima facie does not violate Art 14 of the Indian constitution.

Lawmakers should be above suspicion

Pendency is a major problem with many cases pending in several courts across India with the delivery system deteriorating from time to time. Justice delivery system breeds corruption because it is delayed.

The concept that lawmaker has a longer time to  stall justice by delaying hearings, obtaining repeated adjournments and filing innumerable interlocutory petitions and the law abider has little time should be now reversed. The lawmakers are supposed to make policies, lay down rules and be leaders to guide, prosper and progress into new century.

Attracting the young blood

More establishment of special courts is admitting that regular courts are not up to the task. When the infrastructure is lacking and more judges are needed, the fundamental question is what law graduates have as incentives to make them pursue their career as judge. Unless and until new graduates are not entering into judiciary, this form of the system will not be able to establish positive impact on expedition of efficient judicial services.

Conclusion

• There have been enough law reports and law commissions. Now is the need to cull out the specific recommendations and addressing issues at central and state level, what can be done to increase faith of common man to justice delivery system and holding elected representative to account when it comes to them having a decent track record.
• The shoddy investigation is still the most stumbling block of justice delivery. Very little science and technology is being used in investigative methods. This section of justice has to be improved with coordination from investigative agencies.
• Mediation and conciliation is effectively used across the developed countries. Most of the cases, approx. 60-70% don’t go into litigation. Pre-litigation is a robust concept which needs to be flourished here.
• There are 4 crore cases pending across the country where atleast 2-3 lakh cases pending before SC which is huge. There has to be balance between expeditious disposal and meaningful disposal.
• There are vacancies from top to bottom and lack of infrastructure to complement the speedy justice. There is shortage of judges in lower as well as higher judiciary, with 1 judge for 167 cases. To solve this problem, there cannot be a knee jerk reaction but a permanent solution. However, as an immediate measure, special courts for politicians can be a healthy beginning, if a politician can be dealt with quickly, it will percolate down and there will be system reform.

Special courts may indeed address these issues, but the ideal remedy will always be a speedy trial in regular courts. If only the routine criminal process is pursued with a universal sense of urgency, and if enough courts, judges, prosecutors and investigators are available, the expediency of special courts may not be needed at all.

Connecting the dots:

• “Fast track courts and special courts hamper the judicial process.” Analyse the statement with suitable examples.