This article is written by Vanya Verma from O.P. Jindal Global University. This article covers guidelines issued by the Supreme Court on the withdrawal of charges against the MPs and MLAs.
The directions were issued while hearing a plea filed by Advocate Ashwini Upadhyaya, who cited the staggering pendency of criminal cases against MPs and MLAs and sought their expeditious disposal by setting up special courts.
Amicus curiae Senior Advocate Vijay Hansaria, assisted by Advocate Sneha Kalita, pleaded with the Bench that no prosecution under Section 321, Criminal Procedure Code (CrPC), against a sitting or former member of Parliament or a Member of a Legislative Assembly/Council should be allowed to be withdrawn without the permission of the High Court.
Observations made by the Supreme Court
The Supreme Court ruled on 10 August 2021 that no criminal prosecution against MPs or MLAs can be withdrawn without the agreement of the High Court of the State, a move that limits the state government’s capabilities at a time when the top court has expressed great concern over the criminalization of politics.
The direction must be issued urgently, according to a Bench led by Chief Justice of India (CJI) NV Ramana, in light of a report by the amicus curiae (lawyer to assist the court) describing multiple instances where state administrations sought to withdraw charges against current and past legislators.
“We deem it appropriate to direct that no prosecution against a sitting or former MP or MLA be withdrawn without the permission of the High Court,” the Bench, which also included Justice Vineet Saran and Justice Surya Kant, said in a virtual clampdown on state government’s abuse of power under Section 321 of the CrPC, which allows a prosecutor to seek withdrawal of the criminal cases against the accused.
On the same day, another Bench, led by Justice Rohinton F Nariman and Justice BR Gavai, warned that the country is “losing patience” in waiting for lawmakers to “cleanse politics” by enacting stronger legislation to keep individuals with criminal records out.
In a separate judgment, this Bench exhorted lawmakers to “wake up from their deep slumber” to weed out the malignancy of criminalization in politics, imposing a monetary penalty on all major political parties for flouting its directives on disclosure of information about their candidate’s criminal backgrounds during the 2020 Bihar assembly elections.
Meanwhile, the CJI-led Bench cited an earlier order from September 16, 2020, in which the high courts were asked to register suo motu (on their motion) writ petitions to monitor trials against MPs and MLAs, and asked them to look into any withdrawal cases that had been filed since September 16, 2020, whether they were still pending or had been resolved.
The Bench emphasized that the power under section 321, CrPC, is a responsibility that must be used in the public interest and cannot be used for extraneous and political considerations, referring to a July 28 judgment by the Apex court in which the Kerala government’s move to withdraw cases against some of the state’s sitting and former MLAs was snubbed. This power must be exercised with the utmost good faith to promote the greater public interest.”
The Court also ordered that all trial judges handling criminal proceedings against MPs and MLAs in special courts remain in their positions until further orders are issued. For that purpose, the registrar generals of all 25 High Courts were required to submit information on the judges who hear such matters in special courts, as well as the status of the cases, decisions handed down, and other information.
Legal provision for withdrawal of a case
The Public Prosecutor in charge of a case has the authority under the Code of Criminal Procedure (CrPC) of 1973 to withdraw the case with the approval of the court. The Supreme Court held in State of Bihar v. Ram Naresh Pandey (1957) that before granting consent to withdraw a case, the Court must be satisfied that the Public Prosecutor’s executive function is being properly exercised and that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes.
In Sheo Nandan Paswan v. State of Bihar (1986), the Supreme Court’s Constitutional Bench declared that applications to withdraw cases should be filed in good faith and not to “thwart or stifle the process of law.” Furthermore, in State of Punjab v. Union of India (1986), the Supreme Court said that the administration of justice should be the criterion for determining whether or not suits should be withdrawn. As a result, the prosecution can be withdrawn for a variety of reasons, including a lack of evidence, the accused’s socioeconomic status, and others.
Given the broad scope of this power, the Supreme Court has warned against the withdrawal of cases for illegitimate motives such as political favours or party pressure on several occasions. The Supreme Court declared in SK Shukla v. State of Uttar Pradesh (2005) that the public prosecutor “cannot work as a post box or act on the orders of the state government.” As officers of the court, the Public Prosecutors should operate objectively, according to the Court. However, it appears that public prosecutors operate at the behest of state governments regularly, rendering the provision for case withdrawal subject to abuse.
Role of the state government in withdrawal of cases
As the State Government is responsible for maintaining law and order in the state, it can direct the Public Prosecutor to withdraw cases in the public interest. In essence, the Public Prosecutor’s orders are simply advisory and not binding. The Public Prosecutor is expected to think independently about the evidence and make a decision.
However, as things stand now, it is difficult to assure that the Public Prosecutor makes independent decisions without being influenced by the state government’s wishes. The state government’s direct administrative authority over the appointment and firing of Public Prosecutors makes it practically impossible for them to deviate from the state government’s directives. As a result, the state government’s role as the key decision-maker for case withdrawal is inflated.
A 2005 Amendment to the Criminal Procedure Code proposed that states create an independent Directorate of Prosecutors to address this issue. In addition, the Law Commission of India’s report on the appointment of Public Prosecutors (2006) advised that Public Prosecutors be given suitable tenure and that safeguards be put in place to prevent arbitrary appointments. Despite these recommendations, public prosecutors in numerous states remain subordinate to the executive branch.
Withdrawal of cases
Hansaria cited cases where orders under Section 321 CrPC were made in Karnataka, Uttar Pradesh, Uttarakhand, and Maharashtra. Few instances of withdrawal of cases are as follows:
- A government decision in Karnataka aimed to dismiss 61 criminal cases, many of which were launched against the state’s sitting MLAs. The Kerala Government, led by the CPM, decided on February 24 to remove criminal proceedings related to Sabarimala and anti-CAA protests, except for those of a serious character.
- The West Bengal administration said on February 20 that it had started the process of withdrawing 70 cases linked to the Gorkhaland movement and associated agitations that occurred between 2007 and 2017. BJP leader Dilip Ghosh vowed to drop all fake cases against political activists if his party was elected to power in West Bengal in October 2020, to generate support across party lines.
- Last year, the Uttar Pradesh Government decided to drop charges against Sadhvi Prachi, a political leader, and three serving MLAs – Sangeet Som, Suresh Rana, and Kapil Dev – for making incendiary statements during the 2013 Muzaffarnagar riots. According to news reports, the withdrawal of prosecution applied to 76 criminal charges stemming from the disturbances. Akhilesh Yadav pledged to drop charges against anti-CAA activists in December 2020 if his party wins the Uttar Pradesh elections in 2022.
- According to another report from Maharashtra, the state administration decided in December of last year to dismiss political complaints filed against activists before December 31, 2019.
- In June, the Andhra Pradesh High Court took suo motu cognizance of 11 distinct rulings issued by various magistrates authorising the prosecution of Chief Minister YS Jaganmohan Reddy in criminal cases still pending. The amicus, on the other hand, did not mention this case in his report.
However, in recent months the state governments of Uttar Pradesh and Karnataka have taken steps to remove cases involving riots and communal violence against political officials, including BJP MPs and MLAs.
According to the non-profit Association for Democratic Reforms’ (ADR) study of candidate affidavits, the number of MPs with disclosed criminal charges against them has increased over the last decade. In 2009, it was 30%, and by 2019, it had risen to 43%.
Criminal prosecution was filed against 39 percent of the Bharatiya Janata Party’s victorious candidates in 2019, compared to 57 percent for Congress, 43 percent for the Dravida Munnetra Kazhagam, and 41 percent for the Trinamool Congress.
Hansaria cited a July 28 ruling that parliamentarians are not immune from criminal prosecution to smooth the way for the prosecution of several of Kerala’s current and past MLAs who tossed furniture and destroyed computers and microphones during a House hearing in 2015.
During the hearing, the court also chastised the Central Bureau of Investigation (CBI) for failing to provide details of cases it is investigating involving MPs and MLAs. Since September 2020, when the CBI was repeatedly ordered to give a status report but failed to do so, the Bench has read out its directions.
“We’re at a loss for words right now. We’ve already said everything there is to say. We can only presume certain things now. When we questioned the Indian government about their seriousness, we were assured that the government is committed to completing the trials against MPs and MLAs, but that you have done nothing.” It told solicitor general Tushar Mehta, who represented the CBI.
Details of the petition
The current petition was submitted in the Supreme Court in 2016, seeking that convicted individuals be prohibited from all levels of government, including the legislature, executive branch, and judiciary.
The plea requested that the government provide adequate infrastructure to establish Special Courts to decide criminal cases involving People Representatives, Public Servants, and Members of the Judiciary within one year, and to debar convicted persons uniformly from the Legislature, Executive, and Judiciary.
The petition also requests that the Election Commission, Law Commission, and National Commission to Review the Working of the Constitution implement the “Important Electoral Reforms” proposed by the Election Commission, Law Commission, and National Commission to Review the Working of the Constitution; and that the petitioner be allowed to bear the cost of the petition.
Mr Ashwini Kumar Upadhyay filed the case, which requested that an order be made instructing the Centre to take all necessary steps to prevent anyone accused of criminal offences from winning elections, joining political parties, or becoming office-bearers of any political party. It also asked guidance on how to build up Special Courts with appropriate infrastructure to resolve criminal matters involving members of the Legislature, Executive, and Judiciary within a year.
Ruling of the Hon’ble Supreme Court
The Supreme Court ruled on Monday that no prosecutions against sitting former MPs and MLAs will be dropped without the agreement of the state’s High Court. The Supreme Court further ordered that judges considering criminal cases against MPs/MLAs in Special Courts remain in their current positions until the Supreme Court issues further orders. This directive will be subject to the judges presiding over cases against parliamentarians retiring or dying.
The order was delivered by a Bench consisting of Chief Justice of India NV Ramana, Justice Vineet Saran, and Justice Surya Kant while hearing a petition regarding the pendency of criminal charges against MPs and MLAs and the expedient disposition of the cases by the establishment of Special Courts. “The first concern is a potential abuse of power under Section 321 of the Code of Criminal Procedure about case withdrawal. We believe it is reasonable to order that no prosecutions of MPs or MLAs be discontinued without the permission of the High Court in the respective suo motu proceedings filed in response to our ruling “, the court ruled.
The High Courts are asked to review any withdrawals, whether pending or completed after September 16, 2020, in light of the Supreme Court’s Guidelines on withdrawals in the recent Kerala assembly riot case, State of Kerala vs K Ajith and others, (2021)
The Bench has given the Registrar Generals of High Courts the authority to file applications seeking a relaxation of the restriction prohibiting judges from being transferred if the need arises.
The Bench issued the direction in response to amicus curiae Senior Advocate Vijay Hansaria’s submission that no prosecution under section 321 Cr.P.C. against a sitting or former Member of Parliament or Member of Legislative Assembly/ Council should be allowed to be withdrawn without the permission of the High Court.
The Amicus Curiae had presented a report to the Court, written with the assistance of Advocate Sneha Kalita, advising the Court about the intended withdrawal of cases in the following instances:
- The state of Uttar Pradesh is attempting to drop charges against MLAs Sangeet Som, Suresh Rana, Kapil Dev, and Sadhvi Prachi in the Muzaffarnagar riots.
- The State of Karnataka issued instructions for the withdrawal of 61 lawsuits, many of which are against elected members of the State Legislature, in a Government Order dated August 31, 2020.
- According to reports, the state of Maharashtra is removing political cases filed against activists before December 31, 2019.
The case was scheduled for today after Amicus Curiae Advocate Vijay Hansaria requested an urgent hearing before a Bench led by CJI Ramana on Friday, stating that specific directives are required in the case.
High courts to examine withdrawal of cases
“The High Courts are instructed to review the withdrawal of proceedings against MP/MLAs since September 16, 2020, about the Supreme Court verdict in State of Kerala versus K Ajith,” the Bench noted in its judgment.
A withdrawal application filed by the prosecuting agency is usually decided by the trial court. However, due to the Supreme Court’s order, magistrates are no longer allowed to decide on the withdrawal of prosecution.
In the K. Ajith case, the Supreme Court of India dismissed the Kerala government’s request to allow it to withdraw criminal cases against members of the ruling Left Democratic Front (LDF) while establishing rules for courts to use in deciding withdrawal applications. The Supreme Court determined that cases should only be withdrawn if it is in the public interest.
The case’s leaders were accused of destroying public property by resorting to violence during a 2015 assembly session.
The SC’s order on case withdrawal came after amicus curiae Hansaria and Kalita noted instances of planned case withdrawals against members of the ruling party in their most recent report.
According to the source, the Karnataka government gave instructions to withdraw 61 lawsuits against elected members of the state legislature in August 2020. However, due to a high court judgment in a PIL that directed no action be done based on the notification, no further action was taken.
Similarly, the Uttarakhand government applied to withdraw charges against sitting MLA Rajkumar Thukral, who was charged with murder in 2012. The case is still in the hands of the trial court.
According to Hansaria, the Uttar Pradesh Government also plans to withdraw charges against several of its MLAs who were charged with making inflammatory statements about a community during the Muzaffarnagar riots, which resulted in the deaths of 65 people and the displacement of 40,000 people.
No transfers of trial court judges hearing such cases
The Supreme Court also stated that the issue of whether or not to install video-conference facilities in trial courts was still under consideration. The Bench had urged the Centre and states to allocate funds for the facility in its November order.
The Bench told Mehta that the Centre has failed to “even answer” on this issue after being notified there was no action on this front. It then ordered the federal government to produce an affidavit in this respect before the next hearing date, which is set for August 25.
The Court also ordered that the registrar generals of all high courts produce a list of trial court judges who are considering criminal cases against elected officials and cases that are pending and cases that have been decided by them.
The Apex Court agreed with Hansaria that the trial judge hearing these matters should not be transferred for at least two years, and ruled that such judges should remain in their positions until further instructions – unless they are scheduled to retire. The High Court will examine the specific cases in that case, according to the Court.
Though the ability to withdraw cases in the public interest is critical for the justice system, it should not be exclusively in the hands of the ruling political party. While State Governments may direct public prosecutors to pursue charges that are in the public interest, public prosecutors should be able to withdraw cases as needed. They should be empowered and well trained to prevent the state government from abusing the criminal justice system.
Furthermore, any communication from the state government to public prosecutors on the withdrawal of cases should be supported by reason. It should explain how the dismissal of cases will help the administration of justice, and it should be made public. Such restrictions will serve to protect public prosecutors from outside influence while also increasing public scrutiny of case withdrawals.
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