At least 3,211 cases are pending against sitting and former members of legislative assembly and parliament, according to a report submitted by an amicus curiae to the Supreme Court on 24 August. This was the fourteenth report that the amicus curiae—Vijay Hansaria, a senior advocate—submitted as a part of a 2016 case about pending cases against lawmakers. The 24 August report revealed the significant number of such cases that are being investigated by the Central Bureau of Investigation and Enforcement Directorate. It mentioned that many of these cases involved serious offences and had still been pending for years. The report also gave latest data about the number of cases pending against sitting and former lawmakers in different courts across the country, and the hurdles in disposing these cases. Referring to the pending CBI cases, a three-judge bench of the Supreme Court said on 25 August, “We are deeply concerned with the current state of affairs with respect to these cases.”
Hansaria’s 13th report in the 2016 case had highlighted the number of cases against sitting and former MPs and MLAs that were withdrawn under Section 321 of the Code of Criminal Procedure that states that a public prosecutor or assistant public prosecutor can withdraw an individual from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. On the basis of this, the Supreme Court had ordered on 10 August that no prosecution against a sitting or former member of legislative assembly or parliament will be withdrawn without the permission of a high court.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 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 CrPC. In its 25 August order, the Supreme Court pointed out that in Hansaria’s 14th report he “has pointed out that the States of Uttar Pradesh, Karnataka, Tamil Nadu, Telangana and Kerala have withdrawn cases of heinous offences in purported exercise of their powers under Section 321, Cr.P.C. even after 16th September 2020.”
In the 14th report, Hansaria mentioned some examples of the issue of withdrawal of cases against lawmakers. The standing counsel for the government of Uttar Pradesh informed Hansaria on 20 August that the state withdrew 77 of the 510 cases about the communal violence that unfolded in Muzaffarnagar in 2013. He did not specify when these withdrawals took place. Hansaria wrote that 6,869 people were accused in these 510 cases. Sixty-five people were reportedly killed and 40,000 were displaced in the Muzaffarnagar violence. “The Government Orders do not give any reasons for withdrawal of the case under section 321 of Cr.P.C,” Hansaria wrote. “It merely states that the administration after full consideration has taken a decision to withdraw the particular case. Many of such cases relate to offences of dacoity under section 397 I.P.C. punishable with imprisonment for life.” The cases were withdrawn after chargesheet was filed in 175 cases, final reports were submitted in 165 cases and 170 cases were expunged, Hansaria wrote.
In Kerala, 36 cases were withdrawn under Section 321 between 16 September 2020 and 31 July 2021. Seven applications for withdrawal of cases under Section 321 have either been filed or are pending before the courts. The 10 August 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.”
According to a Supreme Court order passed on 16 October 2020, Tushar Mehta, the solicitor general, submitted that he would file a status report about the investigations pending before the CBI, the 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.” But the ED’s data and the CBI’s status report was not submitted by the next three hearings—it was submitted only on 9 August and on 19 August 2021, respectively, according to Hansaria’s report. Sneha Kalita, the assisting counsel of the amicus curiae and a Supreme Court advocate-on-record, shared Hansaria’s report with me.
Hansaria’s report said that 121 cases are pending trial before different CBI courts. Of these, the report mentioned, 58 cases contain accusations punishable with life imprisonment. At least one case was punishable with death penalty. “In 45 cases, even the charges have not been framed, though the offences alleged to have been committed several years back,” Hansaria’s report mentioned. The amicus curiae made special mention of some “glaring cases of inordinate delay pending trial.” Hansaria’s report mentioned cases that had been pending for over twenty years—the oldest being from Patna, which was charge-sheeted on 12 June 2000. The report did not name any of the cases or the accused but mentioned the areas and years in which they were filed.
Fifty-one MPs and 112 MLAs were involved in these 121 cases, the report said. Of these parliamentarians, 14 were sitting MPs, 37 had served formerly and five had died. Of the state legislators, 34 were sitting MLAs, 78 had served formerly and nine had died.
The amicus curiae’s report also gave a breakdown of the CBI cases pending investigation—37 cases in all. Of the 17 parliamentarians involved in these cases, five were sitting MPs, 12 served formerly and two were dead. Of the 17 state legislators involved in these cases, 11 were sitting MLAs and six had formerly served as MLAs. The oldest pending case was registered on 24 October 2013 in Chennai, Tamil Nadu. In an order passed on 25 August, the Supreme Court noted that Mehta “assures us that he will take up the matter with the Director, CBI, for providing adequate manpower and infrastructure to the said agency so that pending investigations can be completed at the earliest.”
The Union of India’s report to the amicus curiae about the pending cases under investigation by the ED was not filed in the format that the Supreme Court had earlier prescribed, Hansaria’s report noted. Hansaria wrote that the ED report was based on a letter from the agency, dated 2 December 2020. Fifty-one sitting and former parliamentarians and 71 MLAs or members of legislative councils were accused in cases pertaining to offences under the Prevention of Money Laundering Act, 2002, Hansaria mentioned.
The ED report did not break down how many of these were sitting lawmakers and former lawmakers, Hansaria noted. Twenty-eight ED cases against parliamentarians and 48 against MLAs or MLCs were pending investigation, Hansaria’s report mentioned. Charges are being framed in 10 cases concerning MPs and 15 cases concerning MLAs or MLCs. Four cases against MPs and three against MLAs or MLCs are pending trial, Hansaria noted. One accused parliamentarian was now dead. Three cases against parliamentarians are pending appeal or revision against acquittal or discharge. The high courts had stayed two cases against parliamentarians and the Supreme Court had stayed one, Hansaria wrote. One case against a state legislator was had also been stayed by the Supreme Court. Two cases against state legislators were stayed by the high court and Supreme Court—these cases related to a 2013 offence where “the proceeds of the crime were generated through drug trade.”
Hansaria made special mention of some ED cases that saw an “inordinate delay.” For instance, he mentioned that four cases were filed against one MLA in 2016. Three cases against MLAs or MLCs were related to the year 2011. In these, “13 provisional attachment orders were issued for an aggregate amount of Rs. 2790 crores and 10 prosecution complaints have been filed. However, the status of the prosecution/trial has not been mentioned.”
The status of cases pending with the National Investigation Agency is not there in Hansaria’s 14th report. However, the Supreme Court’s 25 August order noted that the agency had placed the information that the court had sought on record. “From the details of the cases pending against MPs/MLAs with the NIA, it appears that no effective steps have been taken even in the matters where charges were framed in the year 2018 and the cases are stated to be under trial or further investigation,” the Supreme Court ordered.