[2023] 14 S.C.R. 266 : 2023 INSC 991

CASE DETAILS

ASHWINI KUMAR UPADHYAY

UNION OF INDIA & ANR.

(Writ Petition (C) No. 699 of 2016)

NOVEMBER 09, 2023

[DR. DHANANJAYA Y CHANDRACHUD, CJI,

PAMIDIGHANTAM SRI NARASIMHA AND

MANOJ MISRA, JJ.]

HEADNOTES

Issue for consideration: Writ petition in the nature of public interest sought expeditious disposal of criminal cases against elected members of the Parliament and Legislative Assemblies.

Constitution of India - Art. 32 - Expeditious disposal of criminal cases against elected members of the Parliament and Legislative Assemblies - Directions issued:

Held: (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 regular intervals as is felt necessary - The High Court may issue such orders and/or directions as are necessary for expeditious and eﬀ ective 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 considered appropriate and eﬀ ective - 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: (1) fi rst to criminal cases against MP's & MLA's punishable with death or life imprisonment then to (2) cases punishable with imprisonment for 5 years or more, and then hear (3) other cases - The Trial Courts shall not adjourn the cases except for rare and compelling reasons; (v) The learned Chief Justices may list cases 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 suffi cient infrastructure facility for the designated courts and also enable it to adopt such technology as is expedient for eﬀ ective and effi cient functioning; (vii) The High Courts shall create an independent tab on their website providing district-wise information about the details of the year of fi ling, 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. [Para 20]

LIST OF CITATIONS AND OTHER REFERENCES

Public Interest Foundation v. Union of India (2015) 11 SCC 433; All India Judges Association v. Union of India & Ors., 2023 SCC OnLine SC 673 - referred to.

OTHER CASE DETAILS INCLUDING IMPUGNED

ORDER AND APPEARANCES

CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No.699 of 2016.

(Under Article 32 of The Constitution of India)

Appearances:

Vijay Hansaria, Sr. Adv. (Amicus curiae), Ms. Sneha Kalita, Ms.

Kavya Jhawar, Advs.

Gopal Saankaranarayan, Sr. Adv., Ashwini Kumar Upadhyay, Ashwani Kumar Dubey, Rishabh Shukla, Vaibhav Tiwari, Ms. Tanya Srivastava, Advs. for the Petitioner.

ASHWINI KUMAR UPADHYAY v. UNION OF INDIA

SUPREME COURT REPORTS


Tushar Mehta, Solicitor General, K M Nataraj, Vikramjit Banerjee, A.S.Gs., Amit Anand Tiwari, B.K. Satija, Tapesh Kumar Singh, A.A.Gs., Ms. Sonia Mathur, Ms. V Mohana, P. N. Ravindran, S. C. Verma, Anup Rattan, Dr. Manish Singhvi, M. K. Maroria, Sr. Advs., K Parmeshwar, Mohd Akhil, Mrs. Rajat Nair, Apoorv Kurup, Arvind Kumar Sharma, Pranav Sachdeva, Balaji Srinivasan, Sahil Tagotra, Sidhant Kumar, Ms. Manyaa Chandok, Ms. Abhivyakti Banerjee, Shiv Ram Sharma, T. G. Narayanan Nair, Ms. Swathi H. Prasad, P. S. Sudheer, Mahesh Agarwal, Nishant Rao, E. C. Agrawala, Ms. Astha Sharma, Srisatya Mohanty, Ms. Anju Thomas, Sanjeev Kaushik, Ms. Mantika Haryani, Shreyas Awasthi, Himanshu Chakravarty, Ms. Ripul Swati Kumari, Bhanu Mishra, Ms. Muskan Surana, Ms. Anvita Dwivedi, Ms. Lihzu Shiney Konyak, Ms. K. Enatoli Sema, Ms. Limayinla Jamir, Amit Kumar Singh, Ms. Chubalemla Chang, Prang Newmai, Anupam Raina, Sunando Raha, Nishant Kumar, Ajay Pal, Kumar Mihir, Ms. G. Indira, Mrs. Swarupama Chaturvedi, Anandh Kannan N., Rushab Aggarwal, Pashupathi Nath Razdan, Ms. Maitreyee Jagat Joshi, Astik Gupta, Ms. Riddhima J Aggarwal, Japnish Singh Bhatia, Aashish Chojar, Ms. Alka Chojar, Shuvodeep Roy, Kabir Shankar Bose, Deepayan Dutta, Saurabh Tripathi, Apoorv Kurup, Ms. Kirti Dadheech, Ms. Gauri Goburdhun, Ms. Aparna Arun, Akhil Hasija, Shivansh Dwivedi, Abhishek Atrey, Ravindra Lokhande, Ms. Vidyottma Jha, Dr. Abhishek Atrey, Gaurav Agrawal, Raghvendra Kumar, Anand Kumar Dubey, Devvrat Singh, Sibo Sankar Mishra, Aravindh S., Sumeer Sodhi, Yash Gupta, Baldev Singh, Rajeev Kumar Gupta, Tavleen Singh, Ms. Vallabhi Shukla, Joginder Mann, Divyansh Thakur, Bimlesh Kumar Singh, Kanwal Chaudhary, Ms. Niharika, Ms. Hemantika Wahi, M/s. Gorkela Law Offi ce, Abhimanue Shrestha, Nishe Rajen Shonker, Mrs. Anu K Joy, Alim Anvar, Abraham Mathew, Siddhesh Shirish Kotwal, Ms. Ana Upadhyay, Ms. Manya Hasija, Tejasvi Gupta, Pawan Upadhyay, T. Illayarasu, Tapesh Kumar Singh, Aditya Pratap Singh, Prashant Bhardwaj, Priyanshu Malik, Naresh K. Sharma, Gaurav Sharma, Shantanu Sagar, Vaibhav Jain, Prabhat Ranjan Raj, Sidharth Sarthi, Mrs.

Divya Mishra, Anil Kumar, Gunjesh Ranjan, Ms. Priyadarshni Priya, Gautam Narayan, Ms. Asmita Singh, Ms. Enakshi Mukhopadhyay Siddhanta, Sovan Siddhanta, Anil Shrivastav, V. N. Raghupathy, Manendra Pal Gupta, Md.

Apzal Ansari, Chirag M. Shroﬀ , Krishnam Mishra, Rajeev Kumar Dubey, Ashiwan Mishra, Kamlendra Mishra, Santosh Krishnan, Ms. Deepshikha

Sansanwal, Ambhoj Kumar Sinha, Ranjan Mukherjee, Pukhrambam Ramesh Kumar, Karun Sharma, Ms. Rajkumari Divyasana, Sandeep Kumar Jha, Raghavendra S. Srivatsa, Venkita Subramoniam T.R, Likhi Chand Bonsle, Ms. Komal Mundhra, Ms. Anagha N. Sharma, Arjun Garg, Mrs. Anil Katiyar, M/s. Arputham Aruna and Co, Dr. Joseph Aristotle S., Sabarish Subramanian, Ms. Devyani Gupta, Vishnu Unnikrishnan, C Kranthi Kumar, Naman Dwivedi, Danish Saifi , Ms. Tanvi Anand, Ms. Radhika Gautam, Karan Bharihoke, Mahesh Thakur, Ms. K. V. Bharathi Upadhyaya, K.V.

Sreemuthin, Ms. Priyadarshini Priya, Saransh Kumar, Vishnu Jain, Shreekant Neelappa Terdal, Abhinav Mukerji, Mrs. Bihu Sharma, Ms. Pratishtha Vij, Mohit Prasad, Sanjay Kumar Tyagi, Satish Pandey, Akbar Ali, Manmohan Sharma, Ms. Jay Jaimini Pandey, Ms. Sadiya Shakeel, Mrs. Lalita Gupta, Pradeep Kumar Dwivedi, Harendra Kumar Sharma, Mukesh Kumar Verma, Shah Syed Samadur Rahman, Abdul Qadir, Umang Tripathi, Manish Kumar Tiwari, Prabhoo Dayal Tiwari, Anirudh Bankura, Dr. Nafi s A.siddiqui, Malak Manish Bhatt, Shailesh Madiyal, Sunny Choudhary, Sandeep Sharma, Karan Bishnoi, Kunal Chatterji, Ms. Maitrayee Banerjee, Rohit Bansal, Ms. Kshitij Singh, Sohhom Sau, Ms. Uttara Babbar, Ms. Sampriti Baksi, Sandeep Sudhakar Deshmukh, Nishant Sharma, Akshay Subhash Jagtap, Swapnil Anil Walde, Kabir Dixit, P. V. Yogeswaran, Ashok Mathur, Sameer Abhyankar, Ms. Vani Vandana Chhetri, Ms. Nishi Sangtani, Naman Jain, Anand Dilip Landge, Siddharth Dharmadhikari, Aaditya Aniruddha Pande, Bharat Bagla, Sourav Singh, Aditya Krishna, Anandh Kannan N., M/s. Plr Chambers And Co., Ms. Jesal Wahi, Sanjai Kumar Pathak, Arvind Kumar Tripathi, Mrs. Shashi Pathak, Ms. Aswathi M.K., Shovan Mishra, Samar Vijay Singh, Keshav Mittal, Ms. Sabarni Som, Mrs. Lakshmi Rao, Ms. Vidhi Udayshankar, Ms. Sakshi Garg, Harshit Goel, Siddhant Singh, Girish Chowdhary, Ms. Sagun Srivastava, Ms. Shreya Bansal, Braj Kishore Mishra, Atanu Mukherjee, Sandeep Singh, Sanjay Kumar, Ajay Kumar Pandey, Mimansak Bhardwaj, Narendra Kumar, Maibam Nabaghanashyam Singh, Shakti K Pattanaik, Ms. Anjali Dhingra, Ms. Bipasa Tripathy, Ms.

Yagya Kalla, Mayank Dahiya, Ms. Sugandh Rathor, M. Bangaraswamy, S. Shashank Reddy, Ms. Shubhangi Agarwal, Ms. Tanya, Dr. Arun Kumar Yadav, Shobhit Jain, Aakash Nandolia, Bimlesh K. R. Singh, Advs. for the Respondent.

Intervenor-in-person

ASHWINI KUMAR UPADHYAY v. UNION OF INDIA


JUDGMENT / ORDER OF THE SUPREME COURT

JUDGMENT

DR. DHANANJAYA Y CHANDRACHUD, CJI

1. This Writ Petition under Article 32 of the Constitution of India, in the nature of Public Interest, seeks two distinct reliefs. The fi rst prayer relates to expeditious disposal of criminal cases against elected members of the Parliament and Legislative Assemblies1. The second prayer relates to the constitutional validity of Section 8 of the Representation of Peoples Act, 1951. By this order, we dispose of this Writ Petition as regards the fi rst prayer after formulating certain guidelines for expeditious disposal of the subject cases. We have also requested the learned Chief Justices of the respective High Courts to constitute a Special Bench to review and monitor the progress of these cases from time to time.

2. A short reference to the orders passed by this Court from time to time, affi davits of the State Governments, and reports of the High Courts as analyzed by the Amicus in his written submissions are necessary before articulating the 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 fi rst 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 India2, this court held:

"10. We, accordingly, direct that in relation to sitting MPs and MLAs who have charges framed against them for the oﬀ ences which are specifi ed 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

1 Hereinafter referred to as the 'subject cases'. 2

(2015) 11 SCC 433

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-today 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 the Union, States and the High Courts to respond to the idea of setting up special courts and the fi nancial implications involved in its implementation.

5. After gathering the necessary information, the Union fi led an affi davit as is evident from the order dated 14.12.2017, contemplating 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 fi nancial 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 specifi ed court in each district, both at the sessions and magistrate level, be identifi ed 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

ASHWINI KUMAR UPADHYAY v. UNION OF INDIA

DR. DHANANJAYA Y CHANDRACHUD, CJI


other criminal cases against sitting MPs/MLAs, followed by similar cases against former MPs/MLAs were to be taken up. This order also suggested that the designated courts will take up and hear the subject cases on a dayto-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) oﬀ ence alleged, (v) date of fi ling 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 fi led. The initial information received from the High Courts related only to IPC oﬀ ences. 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 affi davits.

9. On the basis of the above information, a comprehensive protocol, in the nature of guidelines for identifi cation 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, fi t 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.

b. The State Governments will issue necessary notifi cation 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. Oﬀ ences punishable with death/life imprisonment;

ii. Oﬀ ences punishable with imprisonment for 7 years or more;

iii. Other oﬀ ences.

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 fi xed 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 indefi nite duration. Appropriate conditions may be imposed

ASHWINI KUMAR UPADHYAY v. UNION OF INDIA

DR. DHANANJAYA Y CHANDRACHUD, CJI


so that the party in whose favour stay is granted is accountable if court fi nally fi nds no merit in the matter and the other side suﬀ ers loss and injustice. To give eﬀ ect 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, unless extension is granted by a speaking order showing extraordinary situation where continuing stay was to be preferred to the fi nal disposal of trial by the trial Court. This timeline is being fi xed 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 infl uence 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 Offi cer 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."

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 Courts3. 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 specifi c 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

3 See order dated 16.09.2020.

ASHWINI KUMAR UPADHYAY v. UNION OF INDIA

DR. DHANANJAYA Y CHANDRACHUD, CJI


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 diﬀ erent 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.

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 fi rst 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 facilities4; (b) extension of witness protection as provided in Mahender Chawla v. Union of India, (2019) 14 SCC 6155; (c) orders withdrawing prosecution under section 321 Cr.P.C.6; and (d) transfer of judicial offi cers7. The necessary information was provided through affi davits.

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.

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

Andhra Pradesh 109 146 92 50 92

Arunachal Pradesh 6 16 4 1 Between 1 to 4

Assam 38 69 75 33 Between 0 to 2.5

Bihar 304 571 546 381 Average7.3

Chhattisgarh 24 12 10 2 Average1.1

Delhi 124 97 93 27 Average 16

Goa 15 12 19 5 Between 2 to 8

Gujarat 119 33 28 11 Between 1 to 3

4 order dated 06.10.2020. 5 order dated 04.11.2020. 6 order dated 10.08.2021. 7 order dated 10.08.2021 clarifi ed later by order dated 10.10.2021 and 12.07.2023

ASHWINI KUMAR UPADHYAY v. UNION OF INDIA

DR. DHANANJAYA Y CHANDRACHUD, CJI


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 Between13 to 156

13.

Kerala 312 401 384 22 Between 0 to 59

14.

Madhya Pradesh 168 260 329 51 B e t w e e n 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

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 Av e r a g e 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 fi gure is more than 40% of such pendencies. This is a large number.

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

Hence, there is a compelling need to make every eﬀ ort to ensure that these cases are taken up on priority and decided expeditiously. Confi dence and trust of the constituency in their political representative, be it an MP or an MLA, is necessary for an interactive, effi cient and eﬀ ective functioning of a parliamentary democracy. However, such confi dence is diffi cult to expect when fi gures, 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

ASHWINI KUMAR UPADHYAY v. UNION OF INDIA

DR. DHANANJAYA Y CHANDRACHUD, CJI


problem lies elsewhere. It seems systemic, perhaps institutional, and takes within its sweep many 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 on early disposal. This is evident from the stark diﬀ erence 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 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 infl uence 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 eﬀ ective and expeditious disposal of the subject cases.

17. Having analyzed the data and information available on record, two conclusions emerged - fi rst, 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 affi davits fi led 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 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 infl uences early disposal of the subject cases. This, coupled with their dissimilarity from State to State, makes it diffi cult 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 affi davits fi led 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 judiciary8. 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 eﬀ ective 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 suomotu 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 regular intervals as is felt necessary. The High Court may issue such orders and/or directions as are necessary for expeditious and eﬀ ective disposal of the subject cases. The Special Bench may consider calling upon the Advocate General or the Public Prosecutor to assist the Court.

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.

ASHWINI KUMAR UPADHYAY v. UNION OF INDIA

DR. DHANANJAYA Y CHANDRACHUD, CJI


(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 considered appropriate and eﬀ ective.

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) fi rst 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 cases 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 suffi cient infrastructure facility for the designated courts and also enable it to adopt such technology as is expedient for eﬀ ective and effi cient functioning.

(vii) The High Courts shall create an independent tab on their website providing district-wise information about the details of the year of fi ling, 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 fi rst 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 eﬀ orts taken by the learned Amicus Curiae.

Headnotes prepared by: Directions issued.

Ankit Gyan