The Supreme Court of India has modified its earlier orders regarding the transfer of judicial officers presiding over special courts handling cases involving lawmakers. The court has stated that its permission will no longer be required for such transfers, subject to certain conditions.
Previously, in August 2021, the apex court ruled that all judicial officers overseeing special courts or CBI courts prosecuting Members of Parliament (MPs) or Members of Legislative Assemblies (MLAs) should remain in their current positions until further notice. However, in October 2022, the court modified its order, stating that high courts no longer needed prior permission for the routine transfer of judicial officers after their tenure in a particular posting had ended.
During the recent hearing, a bench comprising Chief Justice D Y Chandrachud and Justices P S Narasimha and Manoj Misra considered applications filed by several high courts seeking permission to transfer judicial officers from special courts handling lawmaker cases. The bench modified the previous orders, specifying that the high court concerned could transfer the presiding officers of these special courts after obtaining the approval of its chief justice on the administrative side. It also emphasized that another judicial officer should be appointed to prevent vacancies in the special courts.
However, the transfer would only be permitted if no case was pending for a final judgment after the conclusion of arguments and the trial. The Supreme Court has been consistently addressing the plea filed by advocate Ashwini Kumar Upadhyay in 2016, which sought a life ban on convicted politicians from contesting elections, as well as the establishment of special courts for expeditious trials of accused lawmakers across the country.
During the hearing, Upadhyay highlighted his main prayer for a life ban on contesting elections if an individual is convicted for more than two years. The court, acknowledging that such a decision falls within the purview of legislative policy, remarked that it cannot impose a life ban when the legislature has determined a maximum prohibition of six years. The court postponed further discussions on the matter until after the conclusion of other pending pleas scheduled to be heard by a constitutional bench.
In a related article, the Supreme Court expressed its disinclination to entertain a plea demanding life bans on convicted lawmakers from contesting polls. The bench, headed by Chief Justice of India Dhananjaya Y Chandrachud, stated that the imposition of restrictions on legislators is a legislative policy matter, and the court cannot mandate a life ban when the legislature has set a limit of six years.
The petitioner, Ashwini Upadhyay, had challenged a provision in the Representation of the People Act, 1951, which disqualifies legislators sentenced to a prison term of at least two years for six years from the date of conviction. Although the court stated that it could strike down the provision if found unconstitutional, it emphasized that it cannot impose a life ban since that decision lies with the legislature.
The Union government, in opposition to Upadhyay's petition, filed an affidavit in December 2020, asserting that public servants and lawmakers are governed by different rules and that a six-year disqualification for lawmakers is prescribed under the RP Act. The government cited a previous Supreme Court judgment that acknowledged the court's inability to make laws regarding criminalization in politics.
The Supreme Court has adjourned the matter for a detailed hearing after four weeks, but it made it clear that the court's role is limited to examining the validity of the provision under challenge, rather than determining the duration of disqualification for convicted lawmakers. The Election Commission of India also expressed support for Upadhyay's plea in a 2017 affidavit, seeking the conclusion of trials of MPs and MLAs within a year and a lifetime ban on convicted politicians' participation in the political process.
Source: Link
Picture Source :
