Special Courts for People’s Representatives: A Selective Approach Eroding Equality.


‘Equality of status and opportunity’ is viewed as one of the most celebrated tenets of any constitutional democracy. The Indian courts have made it abundantly clear time and again that granting special privileges and immunities to a specific section is anathema to fairness principle unless such categorization is based on ‘intelligible differentia’ and ‘rational nexus’. Indubitably, any measure (whether legislative or judicial) which seeks to create a distinct group and consider the rights of its members more divine than the rights of others, is both arbitrary and discriminatory.

A recent example that reflects the noxious departure from the well settled convention and an approval for ‘my rights are more important than yours’ arrangement is Ashwini Kumar Upadhyay v. Union of India (hereinafter “Ashwini case”). In the concerned matter, the Hon’ble Supreme Court of India (hereinafter “SCI”), furthering the objectives of its 2017 Order, opined that establishment of Special Courts (hereinafter “SCs”) for expeditious trial of criminal cases of Members of Parliament (hereinafter “MPs”) and Members of Legislative Assemblies (hereinafter “MLAs”) is in public interest. Subsequently, the SCI directed the Chief Justice of each High Court (hereinafter “HC”) to strategize and plan for the number of SCs needed for MPs/MLAs.

While all the HCs complied with the order, the Madras HC respectfully challenged the constitutionality of constituting SCs exclusively for sitting and former MPs and MLAs, and remarked that classification can only be offence centric and not offender centric. It is noteworthy that the Madras HC appointed a three-member Criminal Rules Committee (hereinafter “Committee”) to scrutinise the direction of the SCI in Ashwini case at length. However, the Madras HC later accepted that it committed an error by questioning the constitutional validity of SCs.

In this piece, the authors aim to critically examine the pressing concerns connected to the creation of SCs, including the ones which were underscored by the Committee. Furthermore, it is being argued that the direction of the Apex Court of designating SCs for a newly formed ‘class of legislators’ is a glaring infirmity as it attempts to prescribe preferential treatment and hence is in derogation of Article 14 of the Constitution of India (‘Constitution’) as was initially indicated by the Madras HC.

Criminal-Centred Approach for Special Courts: An Unacceptable Narrative

Inordinate delay in concluding criminal trials appears to be deeply rooted in Indian Criminal Justice System. While the wheels of justice turn slowly for everyone, the problem is exacerbated when sitting or former legislators are on trial.[1] Their political clout often ensures that police do not register First Information Reports (hereinafter “FIRs”) in case of any complaint against them. Even when the FIRs are filed, investigations are perfunctory and biased as noted in a catena of judgments.[2] As of September 2020, 4,442 cases were pending against MPs/MLAs, 2,556 of which involve sitting legislators. In light of the present circumstances, evolving measures specific to such cases in order to reduce criminalisation in politics is a desideratum, as ‘legislators are the repositories of the faith and trust of their electorate’. However, it does not imply that a separate criminal trial procedure can be carved out for lawmakers, defeating the same inalienable right of others to have a trial within a short time. But, unfortunately, a contemporary development in the form of the SCI’s Order suggests otherwise.

The format laid down by the SCI in its Order in Ashwini case which makes it necessary for the HCs to furnish information with regard to number of ‘proportionate Special Courts’ required for MPs/MLAs in the state brings many pertinent issues to the fore. The moot question is whether it is allowed to treat equals unequally, i.e. discriminate between an MP/MLA and an ordinary offender when both of them have committed the same offence. The answer to this question can be easily located in a foreign case, Skinner v. Oklahoma (hereinafter “Skinner case”), wherein the Supreme Court of the United States held that treating two criminals differently when both of them have ‘committed intrinsically same quality of offence’ is a gross violation of right to equality. Espousing the same view, the SCI, in Chiranjit Lal Chowdhuri v. The Union of India (hereinafter “Chiranjit Lal case”), propounded the governing principle of equality, i.e. ‘similarly circumstanced shall be treated alike’. Essentially, the findings in Skinner case and Chiranjit Lal case made it perspicuous that every accused deserves the same treatment irrespective of whether they are an ordinary person or influential public personality. Nevertheless, a well-reasoned classification is permissible in extraordinary conditions in which ‘offences’ demanding prompt investigation and speedy trial can be represented as an independent group. In Kedar Nath v. State of West Bengal, the SCI observed that decision of the West Bengal government of creating SCs for ‘special kinds of offences’ like forgery, falsification, conspiracy, etc. in the ‘abnormal post-war economic and social conditions’ was founded on reasonable grounds. Correspondingly, in Re Spl. Courts Bill, 1978, the highest court upheld the constitutional validity of Special Courts Bill, 1978 and reckoned that offences committed during emergency can be pigeonholed as unique crimes for which a system of SCs can be instituted. Unlike the aforementioned authorities, the case at hand defies the recognised position of law that SCs can be constituted only in ‘not so common’ situations and for distinct crimes, and contradicts the accepted norm that matters can be distinguished only in terms of ‘offences’ and not ‘offenders’.

Additionally, the apex court failed to foresee that its Order can give birth to a piquant situation. The SCI completely disregarded the existence of SCs formed under special statutes (hereinafter “Acts”), such as Protection of Children from Sexual Offences Act, 2012 (hereinafter “POCSO Act”), Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter “SC/ST Act”) and other Central and State legislations, and inadvertently designed a sub-classification in such cases. Bose, J., concurring with the majority in State of West Bengal v. Anwar Ali Sarkar, commented that an unthought sub-classification from an already well-defined category is unfair. It is imperative to note that a classification within a classification is justified only when it has a rational connection with the objective sought to be achieved. It cannot be gainsaid that the ultimate goal of the SCs to be established exclusively for MPs/MLAs and the ones prescribed by the Acts or the Indian Penal Code, 1860 is identical, i.e. to conclude the trial expeditiously. In these circumstances, the real conundrum is if an MP/MLA commits a crime under any Act, which court will decide their fate, considering that simultaneous proceedings cannot be initiated. Indisputably, the SCs designated under any Act must have the absolute power to try the offences which fall within their ambit. Since these SCs assign due weightage to the nature of the offence irrespective of who commits it and uphold the precepts associated with speedy justice, divesting them of the exceptional right to adjudicate on a matter concerning special offences would render the purpose for which they were established nugatory.

Right to Speedy Trial: Implementation in this regard

In Hussainara Khatoon v. Home Secretary, State of Bihar (hereinafter “Hussainara case”), the SCI held that ‘every accused’ is entitled to speedy trial as it is inseparable from Article 21 of the Constitution. However, it appears that now the Court is contradicting its own stand by proposing differential treatment. The apex court, in Ashwini case, attached more value to an elected representative’s right to prompt conclusion of criminal case than to other individuals’. Diluting this indefeasible right would not only amount to purposeful discrimination, but also disobedience of the SCI’s decision in Budhan Choudhry v. State of Bihar which advocated for procedural equality, implying that every defendant must receive equal and same opportunities in a trial procedure. Suggesting reforms on ‘Expeditious Investigation and Trial of Criminal Cases Against Influential Public Personalities’, the 239th Report of Law Commission, 2012 also cautions against any ‘blanket direction to set up Special Courts wherever influential public personalities are involved’, as they could fall foul of Article 14.

It cannot be emphasized enough that the right to expeditious legal proceedings is a fundamental right of all and for all. According to an analysis of prison statistics from 1995 till 2019, the average length of incarceration for at least 35% of undertrial prisoners is up to three months in jail, and for over 60% them, up to six months. Over the past fifteen years, there has been a reduction in the share of undertrials in jail up to six months, and an increase in undertrials detained for up to a year and above. Hence, it would not be an exaggeration to say that when a common person in India languishes in jail for such a long time as an ‘undertrial’, it is unconscionable to attempt to pave a unique way for the people’s representatives and provide them benefits the majority of the country is deprived of.


The agonisingly slow pace at which justice mechanisms in India move has been a matter of concern for decades. This has come to be seen as a flaw endemic to the legal system. Thus, implementing piecemeal reforms focused solely on MPs/MLAs is hardly productive. In this scenario, it is apposite to rather work towards an all-encompassing transformation of the judicial system, as the SCI had reiterated in Hussainara case, by taking steps such as increasing the strength of judges, filling vacancies in a timely manner, and building sufficient infrastructure to meet the needs of all those who engage with the justice system. This would ensure that the right to speedy trial of every accused person is safeguarded equally, not just of a select few. The problems said to be distinctive to prosecution of MPs/MLAs- police’s reticence to investigate impartially, produce the accused in court or serve summons on witnesses, and the likelihood of witness intimidation- arise in any case where a power imbalance exists between the two opposing parties, whether it is due to wealth, political connections or other factors. The remedy does not lie in acknowledging these difficulties in the limited set of cases where MPs/MLAs are the accused, but in systematically reducing the influence of external factors and corruption on the workings of executive authorities, as has been directed by the SCI on several occasions.[3] The Ashwini case remains pending at the time of writing this article, and the authors are hopeful that the supreme judicial body of India will not only uphold the spirit of Article 14 by reviewing its order, but also prefer an offence centric approach to an offender centric one.

(This post has been authored by Daksh Aggarwal and Vasudha Singh, third year students of LLB at Campus Law Centre, Faculty of Law, University of Delhi)

CITE AS: Daksh Aggarwal, Vasudha Singh, ‘Special Court for People’s Representatives: A Selective approach eroding Equality’ (The Contemporary Law Forum, 26 July 2021) <https://tclf.in/2021/07/26/special-courts-for-peoples-representatives-a-selective-approach-eroding-equality> date of access.


  1. Ganesh Narayan v. S. Bangarappa, (1995) 4 SCC 41.
  2. Amar Nath Chaubey v. Union of India, 2020 SCC OnLine SC 1019, Manohar Lal Sharma v. The Principle Secretary & Others, Writ Petition (Crl.) No. 120 of 2012.
  3. Prakash Singh v. Union of India, (2006) 8 SCC 1, Vineet Narain v. Union of India, (1998) 1 SCC 226.

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