Fast-track courts for MPs, MLAs: Is SC encroaching legislature's domain?

A court creating and enforcing law is at odds with separation-of-powers doctrine - that one organ of state will not encroach the domain of another. But in this case, SC seems to have done just that

The Supreme Court recently directed the Centre to draft a ‘scheme for setting up fast-track courts for dealing exclusively with criminal cases involving legislators and political persons. Sanjay Hegde and Pranjal Kishore explain why the apex court direction might fall in the realm of judicial overreach.

Nearly a third of the members of the current parliament face criminal charges. Last week, the Supreme Court directed the Central Government to draft a ‘scheme for setting up of fast track Courts exclusively to deal with criminal cases involving political persons’. During the hearing, the Additional Solicitor General stated that ‘the Union Government would not be averse to setting up of such special courts.’ The order was passed pursuant to an earlier 2014 directive of the Supreme Court, which had ordered that trials, in relation to sitting MPs and MLAs be concluded within a year of charges against them being framed. During the hearing, the Election Commission of India supported the petitioner who sought a life-time disqualification of politicians convicted in criminal cases. The ECI said it has already made recommendations in this regard to the Centre. The Supreme Court’s order has now renewed the discussion on the need of cleaning up political offices. Whether this discussion eggs the Parliament into cleaning up its house, remains to be seen. 
 
Last week’s order is the latest in a series of judicial interventions, to push for a cleaner polity. While the order may not be judicial overreach, there are problems with the efficacy and the implementation of the order. Hitherto Entry of criminals into politics was sought to be controlled by prescribing certain disqualifications meant to prevent a person from contesting elections or from occupying a seat in a house of legislature. The Representation of Peoples Act, 1951 prescribes the statutory framework in this regard. Section 8 of the Act lists certain offences. Conviction for these offences disqualifies a person from being elected, or continuing as, a Member of legislature. The disqualification is for the period of imprisonment and six years thereafter.
 
Significantly, neither the Constitution nor the Representation of Peoples Act provides for time-bound trials or setting up of fast track courts, for trial of disqualifiable offences.   The 2014 Supreme Court order passed in Public Interest Foundation and Ors. v Union of India and Ors. is based on recommendations made by the Law Commission in its 244^th report. These recommendations themselves were made in compliance of an earlier Supreme Court order. In effect, directions mandating time-bound trials are an instance of judicial legislation, imperceptibly advancing into the political questions thicket. This is problematic for a number of reasons.
 
Under our Constitution, there is a broad separation of powers between the three organs of the state, i.e. the legislature, executive, and judiciary. Each of these have their distinct spheres of operation. Ordinarily, one organ of the state seldom encroaches into the domain of another. The separation-of-powers doctrine has been recognized as a part of the “basic structure” of the Indian Constitution—in simpler words, one of its fundamental features. The idea of a Court creating and enforcing law is at odds with this doctrine. However, in the instant case, over the years, the Court has done exactly that.
 
The second problem involves the practical shortcomings of the judiciary being involved in policy making. Drafting of legislation is, a complex process involving hours of deliberation, a large number of people, specialized committees etc. Courts are inherently unsuited for the creation of law.  They do not possess the requisite manpower, time or expertise needed. In fact, one of the reasons for judicial intervention being limited in policy decisions, is because of the judiciary’s limited competence in that regard.
 
Besides these broad doctrinal issues, the efficacy of fast track courts for trial of ‘political persons’ is doubtful. Fast track courts were initially established by the Central Government to dispose of long pending cases, using a grant from the 11th Finance Commission (2000-2005). However, in 2005, the FTC scheme was extended upto 2010-2011, under orders from the Supreme Court. These courts have often been mooted as a solution to the extensive delays that plague the functioning of “normal” courts in India. Despite the persistent demand to set up fast track courts, and the periodic initiatives in this regard, there has been little empirical study on their efficacy. The research that does exist paints a sordid picture. Statistics reveal that the rate of disposal by fast track courts is only marginally higher when compared to their ‘regular’ counterparts. Practitioners have criticized such courts for ‘bypassing procedure’, ‘compromising on the quality of evidence’ and in the end-result, ‘not doing justice to anybody.’
 
In an India, where a Jayalalitha jailed after her first term, vowed to repay Karunanidhi by making him eat in the same plate, in the same prison  cell, achieved just that by a midnight arrest in in 2001, one must  be careful in decreeing speedy procedures & instant judicial retribution in political cases. From the criminal cases launched in the 1960s against Dr Harekrushna Mahtab in Orissa, and Bakshi Ghulam Mohammed in Kashmir, to the commissions of enquiry against Devraj Urs in Karnataka, the recent tit for tat prosecutions between PS Badal and Amarinder Singh in Punjab, Indian courts have seen plenty of action in the political sphere. Now to relegate all such quarrels, to temporary special courts, is an invitation to a rush to judgment.
 
The judicial process may soon be reduced to politics by other means. One has to only look across our border, to see what a politicised judiciary has achieved. From Chief Justice Munir upholding military coups, to Chief Justice Anwar-ul-haq hanging ZA Bhutto, to Ifthikar Chaudhary’s restoration leading to the fall of Parvez Musharraf, to the frequent disqualifications of Nawaz Sharif government, the judiciary in Pakistan has often been a political player, whose impartiality and independence has been called into question. Special provisions for politicians may well weaken the wall of separation between the India’s judicial and executive branches of government.
 
The creation of fast track courts for the trial of ‘political persons’ seems to be a case of missing the woods for the trees. The judicial system in India is plagued by arrears and delay. The judge to population ratio remains abysmal. Vacancies in judicial offices and lack of manpower and infrastructure are problems that have remained persistent. The entire justice delivery mechanism is in need of an overhaul. Thus, though the end maybe noble - the efficacy, even legality, of courts, that create a special class of litigants out of ‘political persons’ remains doubtful.
 
Maintaining the purity of the electoral process requires a multi-pronged approach. The Supreme Court’s concern and initiatives in this regard are understandable, even laudable. However, the changes required to bring about ‘free and fair elections’ will only come about through sustained legislative and political action. Judicial interventions, no matter how well meaning, cannot be a substitute for national will, expressed through the parliamentary process.

The authors are lawyers who practise in the Supreme Court. They tweet as @sanjayuvacha and @parahoot