On 10 August, a three-judge bench of the Supreme Court ordered that no prosecution against a sitting or former member of legislative assembly or parliament will be withdrawn without the permission of a high court. The bench comprised the judges Vineet Saran and Surya Kant, and NV Ramana, the chief justice of India. The court requested high courts to examine withdrawals of such cases, whether pending or disposed of, since 16 September 2020. It noted the “misuse” of the prosecutor’s power under Section 321 of the Code of Criminal Procedure that states that a public prosecutor or assistant public prosecutor can withdraw an individual from prosecution under certain conditions.
The Supreme Court’s order came in light of a report filed by Vijay Hansaria, a senior advocate, on 9 August. Hansaria is an amicus curiae for a case that began in 2016. His report noted that according to data procured from high courts across the country, the number of pending cases against MPs and MLAs have increased from 4,122 in December 2018 to 4,222 in March 2020 and 4,859 in September 2020. It gave insights on the pending cases against sitting and former lawmakers for multiple states and the withdrawal of such cases as well. The report also spoke about the performance of special courts meant for dealing with such cases.
The 9 August report was the thirteenth that Hansaria had submitted as a part of the 2016 case. Sneha Kalita, the assisting counsel of the amicus curiae, said that the petitioner in the case had demanded that MPs and MLAs should be barred from contesting elections if they have criminal records. Kalita is an advocate-on-record of the Supreme Court—she is entitled under the Supreme Court rules to act and plead for a party in the court.
Hansaria’s report comprised examples of the withdrawal of such cases for a few states. The report mentioned that on 31 August 2020, the Karnataka government “issued instructions for withdrawal of 61 cases, many of which are against elected representatives of the State Legislature.” Subsequently, Hansaria’s report mentioned, the Karnataka High Court passed three orders, in response to a public interest litigation, between December 2020 and January 2021 that directed that no further steps could be taken based on the 31 August 2020 order.
The amicus curiae’s report mentioned that in 2020, the media reported that the Uttar Pradesh government sought to withdraw cases against those accused in the communal violence that unfolded in Muzaffarnagar 2013. Sixty-five people were reportedly killed and 40,000 were displaced in the Muzaffarnagar violence. A news report, dated 12 January, mentioned that “according to the UP special law secretary Arun Rai, the state government on Saturday”—11 January—“directed the Muzaffarnagar district authorities to file an appeal in the court for withdrawing four more cases related to the riots. Earlier, the state government had decided to withdraw 76 such cases.”
In December 2020, the Indian Express reported that the state government also sought to withdraw a case against three BJP MLAs—Sangeet Som, Suresh Rana and Kapil Dev—and Sadhvi Prachi, a leader of the RSS-affiliate Vishwa Hindu Parishad. According to the Indian Express, the four were accused were booked under multiple sections of the Indian Penal Code, including those pertaining to using assault or criminal force to deter a public servant, promoting enmity on grounds of religion and causing mischief by fire or explosive substance with intent to cause damage.
Similarly, Hansaria’s report mentioned, that on 17 December 2020 the Times of India reported that the Maharashtra government will withdraw “political cases against activists” that were registered before 31 December 2019. The ToI report mentioned that this will pave the way for the withdrawal of cases registered against political functionaries and workers. The ToI further stated that even earlier, in March 2016, the state government had issued an order that allowed withdrawal of similar cases registered between May 2005 and November 2014.
Hansaria’s report also shed light on the workings of the special courts that are meant for dealing with cases against lawmakers in different states. The report mentioned that on 7 November 2020, the Allahabad High Court submitted a report saying that 1,374 cases are pending in the state. The high court’s report stated that special courts for cases against lawmakers have been constituted in 63 of 75 districts in the state. The high court mentioned that 300 cases are pending before one such special court, in Allahabad. The Allahabad special court deals with such cases for 12 adjoining districts. Hansaria’s report said that it would be “in the interests of justice” to have special courts in all the 12 districts that the special court in Allahabad covers as the number of pending cases is “too large” to be dealt with one court.
According to an affidavit filed by the Karnataka High Court on 26 November 2020, 145 cases were pending before two special courts in Bengaluru, Hansaria’s report noted. The high court opined that the two courts were sufficient for the “expeditious disposal of cases.”
On 22 December, Hansaria held an online meeting with the registrar general of the Calcutta High Court, an advocate-on-record for the West Bengal government and the judge who is in charge of the special court that dealt with cases against MPs and MLAs in the state. Hansaria’s report noted that during the meeting he was informed that 134 cases were pending before the special court. “During the meeting, it transpired that evidence is not being examined due to lack of video conference facility,” Hansaria’s report mentioned.
The amicus curiae’s report also comprised data on the execution of warrants in different states. It mentioned that on 4 November 2020, the Supreme Court had asked the High Court of Calcutta, West Bengal, to submit a list of cases about the non-execution of warrants against sitting and former MPs and MLAs. Fifteen days later, the high court sent a list of 25 such cases to West Bengal’s director general of police. In response, on 3 December, the DGP stated that only two cases in which warrants were pending and efforts were being made to execute the same. However, Hansaria’s report mentioned, on 22 December, the advocate-on-record of the state government gave the amicus details of 16 cases where the warrants had not been executed.
On 4 November 2020, the Supreme Court also noted that while the counsel of the state government of Kerala claimed to be cooperating with the court for executing warrants in criminal cases, the counsel representing the Kerala High Court has denied this claim. On 10 January 2021, the state government told Hansaria that five warrants were not executed and in seven other cases, the court had notified warrants but the warrants had not been issued.
The Supreme Court’s 10 August order referred to a judgment delivered by it in July regarding the principles of withdrawal of prosecution under Section 321 of the CrPC. One of the principles was, “The public prosecutor may withdraw from a prosecution not merely on the ground of paucity of evidence but also to further the broad ends of public justice.” It noted that “the consent of the court is required” for a withdrawal of the prosecution. “While the mere fact that the initiative has come from the government will not vitiate an application for withdrawal, the court must make an effort to elicit the reasons for withdrawal so as to ensure that the public prosecutor was satisfied that the withdrawal of the prosecution is necessary for good and relevant reasons,” the Supreme Court noted. Further, it said that the Supreme Court may, “in exercise of the well settled principles attached to the exercise of this jurisdiction, interfere in a case where there has been a failure of the trial judge or of the High Court to apply the correct principles in deciding whether to grant or withhold consent.”
The data with Hansaria, however, was incomplete. On 16 September 2020, the Supreme Court had passed an order noting that Tushar Mehta, the solicitor general, submitted that he would file a status report about the investigations pending before the Central Bureau of Investigation, Enforcement Directorate and other central agencies, as well as data about the “pendency/grant of sanctions for prosecution, the expected time for completion of the investigation and reasons for delay in the same, if any, before the next date of hearing.”
During the next hearing, on 6 October, Mehta sought more time to submit the report. The court passed another order that day, directing Mehta to enquire from the central government about “the possibility of providing funding for the establishment of at least one video conferencing facility in every district for conducting these cases.” But even till 9 August 2021, Hansaria’s report noted, Mehta had not submitted any details.
The Supreme Court order mentioned that the power under Section 321 “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.” Kalita, Hansaria’s assisting counsel, said, “Trial must go on. The public prosecutor or the assistant public prosecutor cannot give an application for withdrawal of cases under 321 CrPC by their own whims and fancies.”