Constitutionality of Special Courts and their functioning

January 15, 2021
Special Courts

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This article is written by Isha Tripathi, a student of B.A. LLB (Hons.) from NMIMS, School of Law, Bengaluru. This is an exhaustive article that discusses the specialty and functioning of the Special Courts. The article discusses the history and need of Special Courts in India and critically analyzes the Special Courts Bill, 1978. This article is edited by Ilashri Gaur, a law student pursuing B.A. LLB (Hons.) from Teerthanker Mahaveer University (CLLS).


A Special Court is a court with constrained purview, that manages a specific field of law as opposed to a specific regional ward. In India, Special Courts are being arranged for different preliminaries for offenses relating to transactions in securities, atrocities against Scheduled Caste and Scheduled Tribes, expending narcotic drugs, infringement of the National Investigation Agency Act, corruption, etc. The apex court of India has additionally arranged 12 quick track uncommon courts to solely manage cases including with MLA/MPs.

Special Courts exist for both common and criminal debates. They do exclude the numerous managerial law courts that exist at both the bureaucratic and state government level; authoritative courts are viewed as a feature of the executive branch, as opposed to the legal branch. Be that as it may, a general-ward court that hears just explicit sorts of cases, for example, a landowner occupant part of a general purview preliminary court, is typically viewed as an extraordinary court.

The adjudicators who serve in Special Courts are shifted to the extraordinary courts. Most exceptional court judges acquire their situations through political decisions, as opposed to through the legitimacy determination.

Purpose of Special Courts 

The concept of Special Courts is not a new phenomenon in the Indian criminal jurisprudence. The British government set up several Special Courts under different enactments but they were mainly aimed at suppressing the freedom movement of India. Those laws were draconian and were characterized by a denial of the substance of a free trial and provided a truncated procedure without any right of appeal to the High Court.

After Independence, different state governments in our country also set up Special Courts and passed different acts to deal with grave situations that arose immediately after partition and the Supreme Court held in several cases that the legislature is competent to create Special Courts, but it should not violate Article 14 of our Indian Constitution. The Criminal Law Amendment Act, 1908 contemplated setting up of Special Courts dealing with terrorist crimes. Special Courts were also created under the Criminal law Amendment Act, 1952 for the trial of the offenses of bribery and corruption, under Section 161-165 and 165-A of the Indian Penal Code, 1860.

A few such courts were made because of explicit episodes. For example, the 1992 protections trick prompted the Special Court (Trial of Offenses Relating to Transactions in Securities) Act, 1992. The largest number of Special Courts were made between the years 1982 and 1992.

Courts of special jurisdiction

Special jurisdiction is the Courts’ jurisdiction over certain types of cases such as bankruptcy, claims against the government, probate, family matters, immigration, and customs, or limitations on courts’ authority to try cases involving maximum amounts of money or value. Special jurisdiction is also known as limited jurisdiction.

In the U.S., federal courts are courts of limited jurisdiction. Federal district courts can hear a case only if it meets certain conditions. These courts spread the court of appeals for the Armed Forces, the court of federal claims, the court of international trade, the court of appeals for veterans claims, the judicial panel on multidistrict litigation, and the tax court. Every one of these courts is answerable for taking care of explicit kinds of cases and have their own court rules.

In India, the Supreme Court has original, appellate and advisory jurisdiction. The Supreme Court has special advisory jurisdiction which may explicitly be alluded to it by the President of India under Article 143 of the Indian Constitution.

Do Special Courts exist in other judicial systems too

Special Courts in the US

The judicial system of the United States has Special Courts which incorporate all courts of restricted and concentrated wards that are not courts of general purview or redrafting courts. An extraordinary court, by and large, tends to just one or a couple of zones of law or has explicitly characterized powers. Special Courts in the United States are created out of the English custom of taking care of various types of cases by setting up a wide range of unique courts. A large number of the Special Courts built up in the United States during pioneer times and not long after the Constitution was received have been abrogated, yet new Special Courts are still being formed, particularly at the state level. Uncommon courts currently handle most of the cases in the United States. Most of all cases acquired by a specific state ward go to extraordinary courts.

Special Courts in China

The Special Courts incorporate military courts, railroad courts, and sea courts. The military court that is set up inside the PLA is accountable for hearing criminal cases including servicemen. This is a generally shut framework. The railroad and transport courts manage criminal cases and financial debates identifying with rail routes and transportation. Five sea courts have been built up by the Supreme People’s Court at the port urban areas of Guangzhou, Shanghai, Qingdao, Tianjin, and Dalian. These courts have purview over oceanic cases and sea exchange instances of the main occurrence, including some other questions of this classification occurring among Chinese and remote residents, associations, and ventures. By and by, they have no locale over criminal cases and other common cases having a place with the standard courts. The higher individuals’ court in the area where a sea court is found will have purview over interests against the judgment and requests of the sea court.

Special Courts in the UK 

There are many Special Courts. These are frequently depicted as “councils” as opposed to courts, yet the distinction in the name is good for nothing. For instance, a business council is a below-average court of record for the purposes behind the law of contempt of court. Much of the time, there is a legal right of offer from a council to a specific court or uncommonly composed investigative council. Without a particular interest court, the main cure from a choice of a council might be using a legal survey to the High Court, which will frequently be more constrained in scope than an intrigue.

Examples of Special Courts are:

What is special about the Special Courts

The governing body has presented Special Courts on numerous events through different laws, typically intending to empower brisk and proficient removal of cases. Yet, an assessment of the laws that require setting up of extraordinary courts contrasted with the genuine numbers that have been set up uncovers the degree to which reality and goal are crisscrossed. A legal study stated that 764 Central laws ordered and revised somewhere in the range of 1950 and 2015, barring laws that were cancelled in this period or that may have been altered after 2015, were inspected to decide the recurrence of their event. These resolutions were viewed for just notices of ‘extraordinary’ or ‘assigned’ courts or judges, that is, courts or judges set up to guarantee compelling preliminary and that have forces of region or meetings courts. Gatherings like semi-legal bodies, councils, and commissions were avoided. It was discovered that three resolutions accommodated Special Courts between the years 1950 and 1981, while somewhere in the range of 1982 and 2015, 25 rules ordered the foundation of such courts.

The five-year time frame from 1982 to 1987 saw an unexplained spray in the number of laws making Special Courts. A comparative increment was seen somewhere in the range of 2012 and 2015. A few such courts were made in light of explicit episodes. For example, the 1992 protections trick prompted the Special Court (Trial of Offenses Relating to Transactions in Securities) Act, 1992. The biggest number of exceptional/assigned courts were made somewhere in the range of 1982 and 1992.

Notwithstanding, the reports uncover a lot of extensions to grow the zones of inquiry for research. For example, what is so unique about exceptional courts on the off chance that they just give an extra discussion to arrange cases? Is this reason despite everything served if existing courts are only assigned as unique courts with no new foundation being made? Would inferences be able to be drawn about the condition of the legal framework where uncommon courts have been acquainted by a method of alterations with parent laws? Is the assembly observing the wellbeing of extraordinary courts and inspecting whether their unique expressed reason keeps on being served? These are questions that future examinations could investigate.

How do Special Court’s function

The constitution of Special Courts and their functioning fall within the domain of the State and Union Territory Governments, who set up such courts as per their need and resources, in consultation with the High Courts following Section 14 of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) (PoA) Amendment Act, 2015.

The Act further engages a State Government to indicate for each region, a Court of Session to be a Special Court for the reason, in those Districts where less number of cases under this Act are recorded. In this way, the State-wise status of the constitution of such Courts isn’t looked after midway. The 14th Finance Commission supported the proposition of the Union Government to reinforce the legal framework in States which included setting up 1800 Fast Track Courts at an expense of Rs. 4144 crore for cases including helpless and minimized areas of the general public.

Special Courts contrast from general-ward courts in a few different regards other than having an increasingly restricted purview. Cases are bound to be discarded without preliminary in extraordinary courts, and if there is a preliminary hearing, it is normally heard more quickly than in a court of a general locale. Exceptional courts, as a rule, don’t adhere to the equivalent procedural guidelines that general-purview courts follow; regularly unique courts continue without the advantage or cost of lawyers or even law-prepared adjudicators.

The judges who serve in Special Courts are as different as the uncommon courts themselves. Most uncommon court judges get their situations through political decision, as opposed to through the legitimacy determination framework normal all in all purview courts. What’s more, most unique court judges are not legal advisors.

Critical analysis of Re: The Special Courts Bill, 1978 (Special Courts case)

In Re The Special Courts Bill, 1978, the question referred to the supreme court under Article 143 for its advisory opinion was whether the Special Court’s bill, 1978 proposing to set up Special Courts for the speedy trial of offences committed by the holders of high public offices during the emergency of 1975-1977 is Constitutionally valid. The Supreme Court held that Parliament had legislative competence to enact the law under Entries Il-A of list Ill and Entry 77 of List 1. It also ruled that the classification made by the Bill was valid and it did not infringe Article 14 as it classified both “offenses” and class of offenders, the former concerning the period, and concerning the objective that it was imperative to decide such cases speedily and the latter concerning their status i.e., holders of high public offices. It was only when both these conditions existed the prosecution could be instituted in the Special Courts. The Court held that the offenses alleged to have been committed during the period of emergency constitute a class by themselves and so do the persons who have utilized the high public offices by them as a cover or opportunity to commit those “offences. Thus there was a close relationship between the basis of classification and the object of (speedier trial) of the Bill.

The court also held that apart from the requirement of Article 14 the law must also satisfy the requirement of Article 21 Which requires that the procedure provided for the trial of such offenders must be fair, just, and reasonable. The court found three procedural defects in the bill. Firstly there was no provision in the Bill for the Transfer of cases from one Special Court to another, secondly, the Bill empowered the Government to appoint retired High Court Judges to preside over a Special Court. Thirdly the judges were appointed by the Government only with the “consultation” of the Chief Justice of India and concurrence” Since all the three procedural.

acceptable to the Government the court held that the Bill was constitutional. Later the Special Courts (Repeal) Act, 1982 (Act No 34 of 1982) repealed the Special Courts Act 1979 (Act 22 of 1979).

Difference between Special Courts and Constitutional Courts

Special Courts only hear cases in a very narrow jurisdiction and the judges serve for a specific term, while the constitutional court’s main authority is to rule on whether laws that are challenged are unconstitutional, Example- whether they conflict with constitutionally established rights and freedoms. Constitutional courts are established pursuant to Article III of the Constitution, which states, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” These courts have only the powers specified in Article III. They can hear only cases or controversies; their judges hold office for life, as long as they are not guilty of judicial misconduct; and their judges’ salary cannot be reduced while those judges serve in office.

In earlier times, legislative courts were the best means to bring justice into the territories. Territorial courts heard all kinds of cases that the constitutional courts could not hear, such as divorce cases. Once a territory became a state, cases that fell within the jurisdiction of the federal court would be transferred to the federal court established in the new state; all other cases would be heard in the courts of the newly created state.

Number of Special Courts set up to try cases

The center informed the Supreme Court that 12 Special Courts have been set up across 11 States exclusively to try sitting MPs and MLAs. Delhi has two such courts, while Andhra Pradesh, Telangana, Karnataka, Kerala, Tamil Nadu, Uttar Pradesh, Bihar, West Bengal, Maharashtra, and Madhya Pradesh have one each. Six are meeting courts and five are authoritative courts. The Special Court in each State would have jurisdiction over the entire state while the two in Delhi would cover cases within the precincts of Delhi or “partly Delhi”.

The Supreme Court requested that Special Courts be set up to quickly track the long-pending preliminaries of officials. These courts would dedicate themselves for the reason.

Does the Supreme Court monitor the work of the Special Courts

The Supreme Court in September 2018 chose to monitor Special Courts explicitly set up in states to quickly track criminal arguments against officials. A three-judge seat driven by Justice Ranjan Gogoi said that it would thus advance screen consistency of court requests to guarantee that the 12 courts work successfully. The move is a piece of SC’s endeavour to tidy up the political framework and help those erroneously charged to challenge races with respect reestablished. The Supreme Court decision came after the law service educated it that 12 extraordinary courts have been set up in various states to give legislators a shot a need. The seat looked to know from state boss secretaries and high court enlistment centres general whether the courts were sufficient or more were required. The Supreme Court seat additionally looked to know the number of cases that would need to allude to uncommon courts. The data looked for would need to be put together by October 10. 

The law service had in a prior affirmation told the Supreme Court that in states where the number of criminal bodies of evidence against MPs and MLAs was under 65, customary courts would attempt to quickly track them. Eleven states have set up 12 uncommon courts. There are two in Delhi and one each in Andhra Pradesh, Telangana, Karnataka, Kerala, Tamil Nadu, Uttar Pradesh, Bihar, West Bengal, Maharashtra, and Madhya Pradesh. The Supreme Court seat needs the courts to work adequately.


The Special Courts in India are set up by the Supreme Court in many states of India to speed up the solving and closure of some special cases that require special judicature. From the available data, it is fairly conclusive that there is no exclusivity in ‘Special Courts’. Laws enacted in the last three decades have considered Special Courts as a quick remedy for questions of delays in the trial. However, a striking absence of a number of ‘Special Courts’ set up provides a glaring contrast to such an objective. Notably, in most instances where existing courts are designated as Special Courts, the original intent of speedy disposal of cases seems to have been defeated. Questions of pendency have often surfaced, thereby rendering the point of efficiency of the institution moot. Absence of rationale in both selective insertion of provision for Special Courts and actual setting up of courts appears to have rendered the notion of Special Court superfluous.


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