States cannot withdraw cases against MPs, MLAs without HC nod: SC

The Supreme Court on Tuesday issued directions that no criminal case against MPs or MLAs can be withdrawn without an approval of the high court of the concerned state, in a move that significantly clips the powers of the state governments at a time when the top court has expressed grave concern over the criminalisation of politics.

A bench, headed by Chief Justice of India (CJI) NV Ramana, said that the direction has to be issued urgently in view of a report by the amicus curiae (lawyer to assist the court) depicting several instances where state governments sought to drop charges against sitting and former legislators.

“We deem it appropriate to direct that no prosecution against a sitting or former MPs or MLAs shall be withdrawn without the leave of the high court,” ordered the bench, which also included justices Vineet Saran and Surya Kant, in a virtual clampdown on misuse of power by the state governments under Section 321 of the Criminal Procedure Code (CrPC) that authorises a prosecutor to seek withdrawal of a criminal case against the accused.

On the same day, another bench, comprising justices Rohinton F Nariman and BR Gavai, warned that the nation is “losing its patience” in waiting for lawmakers to cleanse politics by making stronger laws to keep out those with criminal antecedents.

Imposing monetary penalty on all major political parties for flouting its directives on disclosure of information about criminal background of their candidates during the 2020 Bihar assembly polls, this bench, in a separate judgment, exhorted lawmakers to “wake up from their deep slumber” to weed out the malignancy of criminalisation in politics.

Meanwhile, the CJI-led bench cited its earlier order on September 16, 2020, by which the high courts were asked to register suo motu (on its own motion) writ petitions to monitor trials against MPs and MLAs, and asked them to examine the cases of withdrawals, whether pending or disposed of, since September 16, 2020.

Referring to a July 28-judgment by the top court in which the Kerala government’s move to withdraw cases against some of state’s sitting and former MLAs was snubbed, the bench emphasised: “The power under Section 321, CrPC, is a responsibility which is to be utilised in public interest, and cannot be used for extraneous and political considerations. This power is required to be utilised with utmost good faith to serve the larger public interest.”

The court further directed that all trial judges hearing the criminal cases against MPs and MLAs in special courts shall continue in their present posts till its further orders. To this end, the registrar general of all 25 high courts were asked to submit details of judges hearing such cases in the special courts, status of pendency, judgments delivered, and other details.

The directions were issued while hearing a plea filed by advocate Ashwini Upadhyaya, who cited staggering pendency of criminal cases against MPs and MLAs and sought their expeditious disposal by setting up special courts.

Amicus curiae senior advocate Vijay Hansaria, assisted by advocate Sneha Kalita, implored the bench that no prosecution should be allowed to be withdrawn under Section 321, CrPC, against a sitting or former member of Parliament or a member of legislative assembly/council without the permission of the high court.

Hansaria listed out instances from Karnataka, Uttar Pradesh, Uttarakhand and Maharashtra where orders under Section 321 CrPC were issued.

In Karnataka, a government order sought to withdraw 61 criminal cases, many of which were filed against sitting MLAs of the state.

Uttar Pradesh similarly chose to withdraw prosecution last year against political leader Sadhvi Prachi and three sitting MLAs – Sangeet Som, Suresh Rana and Kapil Dev -- for making inflammatory statements during the 2013 Muzaffarnagar riots. The amicus cited news reports to state that withdrawal of prosecution was applicable to 76 criminal cases related to the riots.

Another report from Maharashtra indicated that the state government decided in December last year to withdraw political cases against activists registered prior to December 31, 2019.

In June, the Andhra Pradesh high court took suo motu cognisance of 11 separate orders passed by various magistrates allowing withdrawal of prosecution in criminal cases pending against chief minister YS Jaganmohan Reddy. This case, however, was not cited by the amicus in his report.

According to an analysis of candidate affidavits by the not-for-profit Association for Democratic Reforms (ADR), the share of MPs with declared criminal cases against them has been increasing in the last decade. It stood at 30% in 2009 and 43% in 2019.

In 2019, 39% of the Bharatiya Janata Party’s winning candidates had a criminal case against them; this number was 57% for the Congress, 43% for the Dravida Munnetra Kazhagam and 41% for the Trinamool Congress.

Hansaria relied on the July 28 judgment that legislators do not have immunity from criminal law while clearing the decks for the prosecution of some of Kerala’s sitting and former MLAs who threw furniture and destroyed computers and microphones during a House proceeding in 2015.

During the proceedings, the court also pulled up the Central Bureau of Investigation (CBI) for not submitting details of cases the agency is prosecuting against MPs and MLAs. The bench read out its orders since September 2020 when the CBI was repeatedly asked to submit a status report but to no avail.

“We have no words now. We have already said everything we could. We have to only presume certain things now... We asked the government of India about their seriousness and we were told that the government is very much serious about completion of trials against MPs and MLAs but there is nothing you have done. We can say this much,” it told solicitor general Tushar Mehta, who appeared for CBI.

“There is no progress there (in trial courts) and no progress here. If there is even a reluctance in filing the status reports, what more to say,” rued the bench.

On his part, the S-G said that the government was committed to expeditious completion of trials against the elected representatives and asked for a final opportunity to file the report.

“We are giving you the last opportunity. If you don’t do it now, we will assume you have nothing to say,” retorted the bench as it fixed August 25 as the next date of hearing.

The CJI also indicated that a special bench will be constituted to regularly monitor the progress made in ensuring speedy trials of MPs and MLAs, in which there is already a direction of the top court in 2014 that such trials must complete within one year of the framing of charges.